Swinney in secret talks with education lobbyists | Daily Record

An edited and shortened version of this article was published on 7th February, 2017. The following article is the original, full text.

Full details of meetings between the Scottish Government and Teach First are available here.

Secretive meetings between the Scottish Government and a controversial lobbying organisation have provoked calls for reform.

On 25 October last year John Swinney – the Deputy First Minister and Education Secretary – met with representatives of the Hometown Foundation, a group pressing the government to allow the creation of ‘autonomous schools’. Like Free Schools in England, these would be publicly funded but exempt from local authority control.

Freedom of Information requests – which allow the public to access important information held by the government and other public bodies – have revealed that no minutes were taken during the meeting in October last year, despite the conversation being directly relevant to the Scottish Government’s school governance review, which was still ongoing at the time. In an earlier letter to the Hometown Foundation, Swinney had also advised that ‘autonomous schools’ proposals were to be considered as part of his review of the Scottish education system.

Information released under FOI laws also revealed that Colin McAllister, John Swinney’s Head of Policy and Senior Special Adviser, held a further meeting with the Hometown Foundation on 21 November. Again, no minutes of the meeting exist.

A follow-up letter – also available thanks to FOI requests – from the Hometown Foundation to John Swinney suggests that their representative, Bill Nicol, was told by McAllister that no decision on ‘autonomous schools’ would be made before the conclusion of the government’s schools review.

The Scottish Government has been repeatedly criticised for its inconsistent approach to keeping records of important or controversial meetings.

In August 2016 it was revealed that a meeting between the government and an EU commissioner, which related to serious delays in payments to Scottish farmers, had not been minuted. Weeks later, it was reported that the failure to keep minutes of a meeting between John Swinney and fracking giant Ineos meant that details of their conversation could not be revealed to the public.

In 2015, the Scottish Government was forced to admit that an entire series of meetings which led to the introduction of standardised testing in schools had gone unminuted.

Carole Ewart, Convener of the Campaign for Freedom of Information, sharply criticised the failure to keep minutes of meetings and called for a review of the state of FOI in Scotland. She said:

“Access to information is a human right and the Scottish Government must ensure its actions pro-actively comply with the European Convention on Human Rights.

Proof of secret meetings with lobbyists provides further justification for the Scottish Parliament to undertake an inquiry into the operation of the Freedom of Information (Scotland) Act which was passed 15 years ago and became effective 12 years ago. The Parliament should also assess whether the investigatory powers of the Scottish Information Commissioner should be enhanced to prevent and punish those who would seek to adopt new practices which have the effect of reducing the effectiveness of the public’s right to know.

FOISA was supposed to stop, punish and prevent such actions.”

Scottish Labour MSP Neil Findlay, an outspoken critic of lobbying in the Scottish parliament, added:

“Once again the Scottish Government are caught out meeting lobbyists without recording what was discussed. It really does look like the Scottish Government are seeking ways to systematically evade FOI legislation by simply not recording information or writing minutes of potentially important meetings like this one, which sees lobbyists advocating free schools and minimising the role of local authorities in education, a direction of travel that concerningly Mr Swinney already knows too well.

It is also worrying that they think it is acceptable to consistently disregard the spirit of FOI and avoid sharing information with the public and in the process wilfully and regularly showing disdain for the founding principles of openness, transparency and accountability which the Scottish Parliament was built upon.”

When asked to explain details of the decision not to minute meetings with the Hometown Foundation the Scottish Government stated that they would be unable to respond in time and suggested submitting a Freedom of Information request.

A government spokesperson also said: “There is no requirement for minutes to be taken at all Scottish Government meetings, particularly at informal meetings.  This is entirely in line with normal practice across the UK Civil Service.”

A year long fight for the truth comes to an end | Daily Record

First published on Sept 17, 2016 by the Daily Record: http://www.dailyrecord.co.uk/news/scottish-news/year-long-fight-truth-government-8854300

IT’S finally over.

After a scarcely believable and unnecessary year-long battle the Scottish Government have finally been forced to release the written advice they received regarding standardised testing.

The public now has access to the unvarnished and mostly unredacted truth, as should always have been the case.

We now know this material, which informed a controversial shift in education policy, consisted of four emails from two individuals and that a number of the written recommendations were rejected.

What’s more, these submissions were, according to the Scottish Information Commissioner, “unsolicited”, suggesting that the Government did not even bother to seek written advice before announcing their plans last September.

The Government have tried to defend themselves by pointing to “many in-depth discussions with parents, teaching unions,academics and education professionals and those views were used to shape the draft National Improvement Framework, including the approach to standardised assessments”.

This seems perfectly reasonable. After all, the Government did hold 11 meetings in the four months before the announcement of their standardised testing plans.

There’s just one problem – from all these hours of talks, over many weeks and months, not one single set of minutes was taken. Not one.

In fact the Government’s record-keeping is apparently so poor that even agendas for nine of the meetings cannot be provided.

So we, the Scottish public, have no way of knowing what was said during these discussions.

It may well be that, recognising how controversial plans for standardised testing were always going to be, the Government made a point of raising the issue at every opportunity.

Then again, it’s also perfectly possible that conversations specifically focused on standardised testing were largely avoided by politicians and Government officials fearful of an overwhelmingly negative reaction.

It may well be that the vast majority of those present whenever standardised testing was raised offered enthusiastic backing for the Government’s proposals.

Or perhaps it’s the case that at meeting after meeting the Government were repeatedly warned that their plans would lead inexorably to serious consequences such as a narrowed educational experience for young people, the publication of damaging school league tables and the entrenchment, rather than reduction, of the so-called attainment gap.

We just don’t know.

In the interests of transparency and democratic accountability several questions must now be answered.

Why did the Government choose not to seek written advice from experts on the matter of standardised testing?

Why have the Government spent a year fighting, in vain, to keep the limited advice they received on the issue a secret from the public?

Why did the Government decide not to take minutes at meetings which former education secretary Angela Constance has admitted directly informed her thinking on the development of the standardised testing policy?

And, most of all, why did the Scottish Government have to be dragged, kicking and screaming, towards an honest, open and transparent position?

At this point it’s worth thinking back to November 15, 2012, when Nicola Sturgeon, then deputy first minister, led a debate about possible amendments to Scottish freedom of information laws.

She told MSPs: “I believe that transparency is not an optional add-on but an integral part of policy-making.”

This noble sentiment was repeated in November 2014 when Sturgeon laid out her first programme for government, with Holyrood assured of her intention to lead an “open and accessible government”.

She certainly talks a good game, but it’s impossible to square the First Minister’s asserted support for openness and transparency with the barriers faced by many of those trying to hold her government and other public bodies to account.

Earlier this month, for example, it emerged the Government had “breached freedom of information law by delaying the release of information” to journalist Rob Edwards.

The report included a damning extract from the Scottish Information Commissioner’s judgment on the case which described ministers as “unreasonable”.

Concerns have also been raised about attempts to conceal the nature and contents of a conversation between the First Minister and Andrew Wilson, a former SNP MSP who has been appointed as chairman of the new Growth Commission.

Given what we now know, it’s hard to see how the Government can pursue standardised testing with any credibility – but it’s clear a bigger issue needs addressed.

If Sturgeon is genuinely committed to open, transparent and accountable policy-making, then a fundamental shift in the official attitude towards the recording and release of information is needed.

The SNP promised us openness and transparency, and the people of Scotland deserve nothing less.

FOI Watchdog Orders Government to Release Testing Advice | Blog

First published 7 Jul, 2016 on Medium – https://medium.com/@MrMcEnaney/foi-watchdog-orders-scotgov-to-release-standardised-testing-advice-b9f965a3a2b3

After a ten-month battle, the Scottish Information Commissioner has rejected the bulk of the government’s arguments for keeping vital information secret.

On 1 September, 2015 First Minister Nicola Sturgeon announced the publication of the draft National Improvement Framework (NIF). This document laid out the government’s plans for improving Scottish education and included one particularly controversial measure: the imposition of national standardised testing (NST) on children as young as four years old.

I wrote about it at the time for CommonSpace — you can read the article here.

On 3 September, 2015 I submitted the following Freedom of Information (FOI) request to the Scottish Government:

Please provide details of the advice provided to the Scottish government which resulted in the announcement of national standardised tests in the Programme for Government.

Please make the advice itself available along with the name of the individual or organisation responsible for the advice.

The government’s initial response was to effectively refuse my request. I was directed to two OECD reports that had apparently been “taken account” of, furnished with some obviously inappropriate PR waffle, and advised that several exemptions under the Freedom of Information Scotland Act (FOISA) had been applied. You can read the full response here.

Unsurprisingly, I was far from satisfied with this response and, consequently, submitted an appeal. I argued that the exemptions had been incorrectly applied and that the public interest clearly favoured release of the withheld information. This appeal was partially upheld.

At this stage I learned that the government had received an extraordinarily limited amount of advice around NST, with only two experts (Sue Ellis of the University of Strathclyde and Louise Hayward of the University of Glasgow) offering their opinions in just four emails.

The story was covered by CommonSpace in November 2015 and was subsequently raised in the Scottish Parliament.

Although the government did provide copies of the four emails in question, the information contained within them was almost entirely redacted. Once again, exemptions had been applied in order to keep the specific information provided by the two experts a secret.

You can read the government’s full response here.

On 23 November, 2015 I submitted an appeal to the Scottish Information Commissioner (SIC), asking that she overrule the government and order the release of the redacted information.

Decision by the Scottish Information Commissioner

Following submissions from both myself and the government — and an as yet unresolved controversy over the impartiality of the SIC — a decision was finally issued on 4 July, 2016. You can read it here.

The report contains two key findings:

1. Ministers correctly withheld information in documents 2 and 4 under section 30(b)(i) of FOISA

2. The remaining information has been wrongly withheld as [the Commissioner] did not accept it was exempt from disclosure under sections 29(1)(a), 30(b)(i) and 30(c) of FOISA

As a result of these findings, the Scottish Government has been ordered to release the vast majority of previously withheld information by 18 August, 2016.

Details of the Scottish Information Commissioner’s Decision

The Decision Notice breaks down into four main sections, each of which is explored below.

Point 1 — Information falling within the scope of the request
The Scottish Government held a series of meetings both before and after the publication of the draft NIF document in September 2015. In their submissions to the SIC, the government argued that the details of these meetings did not fall within the scope of my request as they were focused on the NIF as a whole, not NST specifically.

The Commissioner rejected this position and made clear that such information would indeed fall within the scope of my request.

This was, however, something of a hollow victory as it is now clear that the government has neglected to take minutes of these meetings. Officials argue that these meetings were “informal in nature” despite them having been arranged specifically to support a Minister in the development of government policy.

A separate FOI investigation has confirmed that, prior to the launch of the draft NIF, a total of eleven meetings took place — none were minuted, and the government is only able to provide an agenda for two of them. You can see the list of meetings here.

This matter deserves individual attention, particularly as it highlights behaviour which may be intended to prevent successful FOI requests by simply failing to record certain information.

Point 2 — Formulation of Scottish Administration Policy
Exemption 29(1)(a) allows for information to be withheld if it relates to the “formulation or development of government policy.”

The Commissioner accepted that the government was entitled to apply this exemption, but also noted that it is a ‘qualified exemption’ and is therefore subject to the “public interest test”.

The government argued that keeping this information a secret was vital in the interests of “protecting high quality policy and decision-making”, a rather ironic contention given the nature of the dispute as a whole.

Curiously, they also claimed that releasing the information in question “would be likely to give a misleading impression of the Minister’s intentions.”

The Commissioner disagreed.

She recognised that the imposition of standardised tests “will have a direct effect on a significant proportion of the Scottish population”, accepted “that there is a strong public interest in the disclosure of information which would show why the development of this policy took the direction it did” and “concluded that the public interest in disclosure of the withheld information outweighs the public interest in maintaining the exemption.

Point 3 — Prejudice to effective conduct of public affairs
Exemption 30(c) allows for information to be withheld if disclosing it would “prejudice substantially, or be likely to prejudice substantially, the effective conduct of public affairs”.

The Commissioner explicitly points out that this exemption is very broad, highlighting the fact that she would expect “any public authority citing it to show what specific harm would (or would be likely to) be caused” by the release of the information in question. General, precautionary or theoretical concerns are not good enough to justify withholding information under this exemption.

The government defended its position by arguing that releasing the information “would substantially inhibit” future communications with the two Professors involved, and that other “key stakeholders” would be reluctant to provide advice in future.

The Commissioner rejected this argument entirely.

In fact, she specifically criticised the government’s arguments as being merely “hypothetical” and highlighted the “absence of any persuasive evidence or explanation from the Ministers”.

She also highlighted the fact that the advice received by the government was“unsolicited” (more on this later).

The Commissioner therefore found that the government was incorrect to apply exemption 30(c) as a means of withholding information.

Point 4 — Free and frank provision of advice
Exemption 30(b)(i) allows the government to withhold information if releasing it would “inhibit substantially the free and frank provision of advice.”

The government argued that this exemption should be applied because “key stakeholders will be considerably more circumspect in providing free and frank advice to the Scottish Government, if it is widely known that advice provided in these initial stages of policy formulation is likely to be disclosed”.

Importantly, the Commissioner “notes that the Ministers have applied the exemption…to only a few, specified comments in three of the documents, and have asked for the exemption to come into play only if she rejects the application of the exemptions in section 29(1)(a) and 30(c).

So desperate was the government to keep this information secret that they had sought a back-up exemption for use if their first attempt was rejected.

Where the exemption has been applied to Document 1, the Commissioner “does not accept” the government’s argument and requires that this information is disclosed.

In Documents 2 and 4, the Commissioner accepts that the exemption is valid as the specific comments to which it has been applied are “more personal in nature”.

Having confirmed that the exemption has, in these cases, been correctly applied, the Commissioner then applied the public interest test. In this instance, she decided that the exemption should be permitted.

Despite recognising that “disclosure of the information withheld…would increase transparency and allow the public to gain a better understanding of the information and advice provided to Ministers on this subject”, the Commissioner ultimately accepted that disclosure of the “few, specified comments” being withheld under this exclusion would “inhibit expert individuals from commenting frankly and willing on such issues”.

In the end, she decided that the government is “entitled” to apply the exemption in this one area, meaning that a small amount of information will likely remain secret.


Assuming this decision is not challenged by Ministers in the Court of Session, the Scottish Government is now required to disclose information that it wasdesperate to keep hidden from the public. Although the application of one exemption has been partially upheld, this will only allow the government to withhold “a few, specified comments” in two documents — the rest will have to be released.

It is worth noting that the government has now spent 10 months (almost to the day) fighting against the release of information when disclosure was always, quite clearly, in the public interest. It now has until 18 August, 2016 to provide me with the information outlined above: at that point this investigation will be just a fortnight short of one year old.

This of course means that potentially damaging information will not be available to the public until the new standardised tests are about to be trialled, therefore undermining our ability to hold the government to account on this matter.

On that particular point, there are also serious questions to be asked about the revelation that the Scottish Government does not take minutes, or even keep notes, from meetings held as part of the policy development process.

Are policies such as the imposition of standardised testing, which the Commissioner describes as “an issue of key public interest”, really being formulated on the basis of the collective recollections of a dozen conversations?

Or, on the other hand, is the government neglecting to retain this sort of material and, whether intentionally or otherwise, keeping important information out of the reach of FOI legislation?

Attention should also turn to the description of the written advice at the heart of this issue as “unsolicited”. We already knew that the government received only four pieces of written advice from just two individuals during the development of this policy; we now know that they didn’t even bother to ask for that advice in the first place.

It looks very much as if the Scottish Government settled on National Standardised Testing — a feature of the NIF that was never up for discussion from the moment the document was published — without even seeking written advice from academics or education professionals. I doubt I’d be the only person to feel deeply uncomfortable about such a dangerously flawed method of policy development.

FOI Watchdog Censors Herself | Daily Record

First published on 29 March, 2016 by the Daily Record: http://www.dailyrecord.co.uk/news/politics/scottish-information-commissioner-censor-herself-7645203 

IN JUST 37 days Scotland goes to the polls to choose its new government.

Of course, the whole electoral process depends on one, utterly vital commodity – information.

We need to know who is standing and what they stand for to select our next batch of representatives but we also need to be able to hold the existing government to account.

If we don’t know how our government conduct themselves, then no amount of campaign slogans or glossy manifesto pledges will fill the democratic void we’re left with.

Fortunately, we have laws which exist to facilitate this process – Freedom of Information (FOI).

FOI allows us to ask official bodies – including the Government – to release information we consider to be in the public interest.

Often such organisations attempt to block the publication of material and, if an initial appeal fails, it falls to the Scottish information commissioner (SIC) to decide if the information should published.

In recent years, FOI disclosures have shone a light on the £7million of bonuses paid by public sector bodies in Scotland, the extent of corporate interest in fracking, serious concerns over safety at the Faslane nuclear base, and the fact the Fife police division being investigated over the death of Sheku Bayoh faced assault allegations almost every fortnight.

SIC interventions have also ensured that a number of extremely serious stories – such as government “feedback” leading to changes in a Scottish Police Authority report on officers carrying firearms – could not remain hidden from the people.

The SIC is, then, a hugely important feature of Scottish public life, charged with protecting the interests of the people and ensuring that government cannot prevent us from accessing information to which we are entitled.

But what if the opposite happened? What if the SIC hindered rather than helped accountability, openness and, ultimately, democracy?

In an extraordinary turn of events, that seems to be precisely what has happened.

In November, the website CommonSpace revealed that the SNP’s plan to impose standardised testing on schools was based on just four emails from two individuals.

This information was given to me after an FOI request to the Scottish Government.
Unfortunately, the emails were censored as the Scottish Government attempted to keep the contents secret.

The case was therefore taken to the SIC, who accepted the legitimacy of my appeal and a final decision was expected within weeks.

But then everything changed.

Last Tuesday morning, I received an email informing me that the SIC had “decided not to issue any decisions that might put forward a critical view of the ministers” prior to the Holyrood election.

The email continued: “In discussion with the head of enforcement, it has been decided to delay the issue of the decision on your case until after May 5, 2016.”

Put simply, the information I have requested may be uncomfortable for the Scottish Government so, even if the SIC agrees that it should be released, she intends to withhold it until after the votes are counted.

It doesn’t matter which political party you support – this is serious.

The people of Scotland need more information during an election campaign, not less, and it is clearly unacceptable for the SIC to initiate a policy that could lead to important information being withheld until it’s too late for voters to consider it.

FOI is vital to the functioning of our democracy, as is the absolute impartiality of the SIC.

In this case, however, it at least appears that the SIC has made a political decision and, in doing so, potentially protected the Scottish Government from criticism during an election period.

This is made all the more serious by the knowledge that purdah rules, which impose impartiality on civil servants during an election, do not apply to the SIC and have never before been invoked to delay the publication of material, critical or otherwise.

We must, therefore, ask: why now? What is it about this request that provoked such an unusual reaction?

We must also guard against any attempts to normalise this sort of situation or dismiss it as “typical politics”.

FOI is supposed to protect citizens from secretive governments and unaccountable public bodies, not shield politicians from difficult questions in the weeks before an election.

It is a right we must defend, even if that means scrutinising the very people who should be on our side.