Shining a light on Democracy

Democracy Lives in the Light

Craig Dalzell – February 3rd, 2022

In 1971 in a ruling against the US Government deploying wiretaps without a warrant, Judge Damon J. Keith remarked that “Democracy dies in the dark”. The judgement reinforced the principle that those in power should always be accountable and that decisions – especially the gravest decisions – should not be made by government alone. As Robin says in his column this week, no government institution should be governed solely by itself.

However, in order to govern an institution from outwith it, we need to be able to see what it is doing. If decisions are made and carried out entirely secretly, then we cannot even begin to judge whether or not they are appropriate. In such circumstances it is not just likely, but almost inevitable that the decisions and actions being hidden are ones that the people making them are sure we would object to if we could see them. Democracy dies in darkness. Before it dies, it gets very, very dirty.

We’ve seen plenty of what happens in dark government at Westminster. Donations in exchange for favours or political power by elevation to the House of Lords, Procurement deals amongst friends to deliver Covid PPEprivate channels between lobbyists and ministers to allow privileged  access. That place shall certainly receive no defence from me.

But we’ve seen recently that should does Holyrood. Similar issues with privileged access given to certain lobbyists so that meetings took place in ways that allowed them to avoid the Lobbying Registerglaring holes in the Lobbying Register itself, ministers interfering with the Freedom of Information process to prevent disclosures, and glaring holes in the FOI process itself.

Over the past 18 months, Common Weal has been designing a National Care Service for Scotland. In many ways, we’ve been fighting the momentum of the Scottish Government at every stage of this process – you can get a flavour of that push against the tide by reading our response to the recent NCS consultation and our objections to the fundamental premise of so many of the questions. This pushback was taken to a darker level back in November when one of us here discovered – almost by accident – that the Scottish Government had tendered out the initial design process for the NCS to the multinational consultancy conglomerate PWC. They were the only bidder for the contract that was posted not as a general public notice but through a more limited Crown Commercial Services Framework instead. It’s thought that only 269 companies would have been able to see the advert, most of whom would not have the expertise to apply for it. Conversely, many organisations which could have bid for it – especially groups already within the care sector – were excluded from even trying.

Things got worse again in January when it was revealed that the task of writing up the “business case” for the NCS would also be farmed out to the private sector, this time to KPMG – who had previously been contracted to document the Scottish Government’s responses to Covid in Care Homes – responses which Common Weal has described as the greatest failure of the devolution era. KPMG’s appointment to this phase of the design of the NCS was despite a growing call for KPMG to disengage with Government contracts following a string of scandals over the past several years.  stopped bidding on UK Government contracts pending investigation in December 2021 but evidently still felt secure enough in its relationship to the Scottish Government to stay involved there. Just two days after being awarded the business case contract, KPMG admitted that it had misled regulators by falsifying documents relating to its audit of now-collapsed outsourcing giant Carillion.

Indeed, the First Minister continued to defend the contracts as late as last Thursday when she was confronted about them in FMQs – choosing to effectively accuse Labour of hypocrisy rather than to justify her own government’s actions.

She may well be correct in the facts of the riposte, but I’m not sure that “we’re only being as dodgy as you were” is the best campaign slogan.

Being confronted on the public stage obviously set things in motion, however. Last weekend, the Scottish Government announced its own investigation into KPMG which has led to the company withdrawing from future government contracts pending its results. It has not, however, withdrawn from the contracts it currently holds.

I hope this shows the value of transparency but also the limits of it in our current government. The first steps in the creation of what should be the most important public institution in Scotland since the creation of the NHS have been privatised and have been farmed out in a way that have caused serious concerns. Those concerns were given voice only because the contracts were noticed by diligent watchers and flags were raised. This allowed questions to be asked and political pressure to develop to the point that at least some action has been taken. If the government had been just a little less transparent or the watchers a little less diligent (or lucky) then these deals might have been waved through without a second thought. As it is, they can now be scrutinised and the Government’s response to their reports held to account. However, had Government been more transparent, perhaps the deals could have been done better, cheaper or performed by those with closer ties to the sector they are supposed to be building this service for. Perhaps we’d be designing the NCS upon the founding principle of meeting the needs of those who need care and those who give care rather than trying to develop its “business case” with all the implications that may entail of threats of future privatisation to come.

A few years ago, we called for an overhaul of the Freedom of Information process to remove the obvious loophole that one can only free information that we know exists – we have to be able to ask a question to get an answer. You can’t, for example, FOI the emails between a minister and a dodgy lobbyist if you don’t know that such emails were sent. Instead, all information that could be made public through FOI should simply be made public. It’s evidently time for a similar overhaul of public procurement and tendering. Tenders need to be made as public as possible (no more closed or exclusive lists) and full details of the contracts drawn up with winners should similarly be made public. “Commercial confidentiality” may, in some circumstances, be allowed to apply during the bidding process itself but once the deal is signed and public money is handed over, the deal should be made public, and the company bound by the same FOI and other transparency processes that apply to civil servants working in-house. These principles were accepted by the Committee that took our FOI reform evidence a few years ago and most of them were in turn accepted by the Government though rather than actually enact the reforms, they chose to kick the problem into another consultation to be held at some point during this current Parliament.

Transparency is the detergent of democracy. Only when we can see things starting to get dirty can we clean them up before they go too far to fix. The corollary to the maxim that democracy dies in the dark is that our democracy can only live if it is fully exposed to the clear light of day.

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