The timid society called Scotland
It is delightful, this late in the year, to be able to applaud the entrance of a new hero in public life. His name is Christopher Graham. He is described by the Sunday Telegraph as 'Britain's new information commissioner'. Sadly, from our point of view, this is untrue. Mr Graham's jurisdiction runs only to England and Wales, while Scotland has its own information commissioner, Kevin Dunion. Since Mr Graham is 59 years old and presumably in the last phase of his professional career, perhaps he feels he has nothing to lose. Whatever the reason, he seems determined to make waves.
Mr Graham, in his first newspaper interview since his appointment, said that public officials could face criminal proceedings if they fail to supply information requested under the Freedom of Information Act. He has already threatened a public body, the London Development Agency, with contempt of court for failing to disclose such information and acknowledges that this will send 'a shock wave' through the system. Clearly this is exactly what Mr Graham intends. 'I think in the past the information commissioner's office has not been alert enough and fierce enough with public authorities that do not comply with their requirements under the Freedom of Information Act,' he said.
Now, inevitably, the question arises: is it possible to imagine the Scottish information commissioner adopting such a pro-active stance? Is it conceivable that Mr Dunion would threaten a public body – any public body – with criminal proceedings for failing to comply with freedom of information requirements? I fear not, but Mr Dunion may prove me wrong; I sincerely hope he does. As soon as this issue of the Scottish Review goes online, we will be appealing to NHS Orkney for a review of its decision to refuse our freedom of information request for the salaries of six of its executive members and three of its non-executive members. We will also be filing freedom of information requests to five other health boards for similar information. In the interests of complete openness, we will publish in tomorrow's edition the terms of our requests, naming all the senior NHS executives who have failed to disclose information about their salaries and/or pensions.
I have no doubt that in more than one case, perhaps in all cases, our request will be turned down and we will then see what Mr Dunion has to say or do about it.
Meanwhile, the only reasonable default position is that public officials will go on withholding information that is clearly in the public interest and that the Scottish information commissioner will, to borrow Mr Graham's words, not be 'fierce enough' to make a huge issue of it.
Why? Because this is an extremely timid society. When I wrote a piece for SR in early January complaining of the natural acquiescence of what is called 'civic Scotland' and its unwillingness to rock the boat, I could not have dreamt what lay in store.
When we discovered that business and financial interests were dominating the boards of our national cultural organisations, we expected that the commissioner for public appointments, despite her invisible public profile, might be stirred to defend, or at least explain, the system of public appointments in Scotland. From Karen Carlton, however, we heard nothing. To his credit the minister responsible, Mike Russell, wrote a piece for us extolling the virtues of having bankers in charge of the arts. He was to have written a follow-up piece for the first issue of the new year, but since he is no longer culture minister we are assuming that the progress of the bankers will go uncelebrated. Ms Carlton is as invisible as ever.
In the case of Mr Megrahi, the man convicted of the Lockerbie bombing, we repeatedly drew attention to the existence of an unpublished document, a report by the Scottish Criminal Cases Review Commission after a four-year review of the case, pointing to a possible grave miscarriage of justice, including important new evidence not made available at the trial. The mainstream media, with one or two honourable exceptions, have made little of this secret report, no doubt because its release would cast doubt on the safety of the conviction and undermine their own prejudices in the matter. Why is it secret? What do the authorities have to fear from its publication? Where does non-disclosure on a matter of such vital public interest leave the principles of freedom of information? The justice secretary, Kenny MacAskill, said several months ago that he would facilitate its publication if he received the necessary consents. Nothing more has been heard.
We discovered that the names of 360 people with serious judicial responsibilities – the members of the Mental Health Tribunal for Scotland, who exercise the power to detain and compulsorily medicate the mentally ill – had been pulled from the tribunal's website. We dug around the site and by using a search facility managed to source the names that the tribunal believed were no longer there. We told the tribunal of our discovery, and this time they did the job properly: by the following morning the names were gone. After weeks of pressure, but no assistance whatsoever from the mainstream media or from those who espouse and champion freedom of information, we finally secured the restoration of the names.
We conducted much the same campaign in the case of the Private Rented Housing Panel, which failed to publish online, not only the names of the panel, but its own annual reports, and again we succeeded in having the information made publicly available. In that case, we were taken aback to discover that the panel was increasing rents in the private regulated sector by an average of 70%. We publicised this fact, providing case histories, to a brick wall of official and media indifference.
The more secretive a public body, the more it will arouse suspicion; that is why we went on to investigate the decisions of the Private Rented Housing Panel. Likewise, when we discovered the wholesale non-disclosure at NHS Orkney, we contacted Audit Scotland. It dismissed Orkney as a localised incident. It was not. Weeks of research led us to five other area health boards with a record of non-disclosure. We asked Audit Scotland to explain why we had been so misled. No response.
So, following the same instincts as guided us in the case of the Private Rented Housing Panel, we obtained and examined the accounts of all 14 health boards. What we found was profoundly shocking: a pattern of spectacular managerial pay, apparently unchecked and unobserved for years. So unobserved that, when we checked the website of the Scottish Advisory Committee for Distinction Awards, the body which dishes out vast annual bonuses to NHS consultants, we found that nowhere on the website was the size of the bonuses disclosed; this information too is now publicly available. We then published what we called 'the NHS Rich List'. A couple of newspapers picked it up. But it took two further months of probing and exposing before the scandal of excessive salaries in the NHS in Scotland became a political issue.
All this points to the essential timidity of Scottish society, a small society in which the same people bump into each other at the same social functions, the same conferences, the same Holyrood consultative gatherings, all extremely cosy and knowing, all with a vested interest in very little being known about themselves. Last week, we received a call from someone at a high level in the Scottish Government. This person was surprisingly frank, saying that the pulling of the SG's own online directory of public bodies at a critical stage in SR's continuing investigation had been badly handled and that SR had performed a public service. Of course these remarks are non-attributable: itself a symptom of the national timidity. But they were the first acknowledgement from official Scotland that things need to change; that a more open society is required.