ALBA - Unofficial Forum

Scotland is not just one giant stuttering failure, filled with malfeasance and conspiracy and corruption. The vast majority of people working in the public sphere work hard every day trying to make things better. Nor do I expect errors not to happen. Nor do I think running complex services is easy.

What I do expect is that when errors occur they should be addressed honestly and transparently and if there is any reason to believe that the outcome is a result of anything other than honest error, that there is accountability. It’s not about punishment, it’s about moral hazard, the danger in believing you don’t need to be honest.

What I have been trying to show recently is that is not what happens in Scotland, and since you all keep sending me examples, let me give you a few more. We don’t have systems that hold powerful people to account.

First, how does a trial against presumably wealthy landlords collapse because the prosecution service botches a video? We’re quarter of the way through the twenty first century – that breaches basic competence at the very least.

You can get the full details of this case on Ruth Tingay’s excellent Raptor Persecution blog, but this is the basics. A red kite disappears over a shooting estate, presumed dead, probably shot. These cases generally go nowhere because it is so hard to find evidence that proves the bird was shot and who shot it.

So to have video footage from a neighbouring land owner who was monitoring wildlife and caught two figures with guns carrying a dead red kite was rare and welcome. Multiple people then correctly identified the two people in the video when it was played to them in the police station.

The long and short of it is that by the time the prosecution service brought the video to trial it had somehow been edited in a way that had sharply reduced the resolution. It was so bad that the witnesses in court were unable to identify anyone from the garbled remains of what had been crisp as a bell in the police station.

There were other aspects to this case, but this failure to identify in court was crucial in the eventual dismissal of the two men. And I cannot believe this is justice served. If the prosecution has butchered the key evidence, the trial must surely be adjourned until the problem is resolved. The public interest demands it.

In medieval Scotland landowners had different legal rights than everyone else. That’s not still the case is it? Because four years ago it also became law that landowners must register their ownership in Scotland but some are simply not doing it and despite Andy Wightman and Alan Brown pursuing them, the Crown Office refuses to take any action. Why?

As I keep pointing out, there are potentially legitimate reasons for some things that look open and shut to not be as certain as they appear. The law can be perverse sometimes, and sadly there is rather a lot of non-compliance that isn’t pursued. But the land registry was crucial national policy trumpeted by the Scottish Government.

And my kids can copy video without accidentally reducing the resolution to the ‘court acquittal’ setting. I just don’t think this should be happening, but will we ever find out what the hell is going on?

Meanwhile another really sad case. A child born with multiple disabilities is taken into care because his mother isn’t capable of looking after him. Relations between the mother and the social workers break down and she is basically prevented from seeing her son. His foster placements break down and ends up in residential care.

From there he had an illness and was put on palliative care and died. His mother only got ten minutes with him. This is all deeply sad and always more complex than it looks. Social work is under-resourced, fragmented and under pressure to take a punitive attitude, this is a case with terrible options. None of this is easy.

But mistakes were made. Procedurally it is non-negotiable that families are included in end-of-life decisions and that did not happen here. And it is hard to feel that there was a lot of humanity towards either the child or his mother that he was left to die over a period with no familiar faces for most of it.

What is wrong isn’t that people are meant to get things right in every way, every time with difficult situations, it’s that you absolutely must be transparent and learn from it afterwards. And that is where ‘bureaucratic Scotland’ kicked in. The council concerned (Renfrewshire Council) opted not to have a significant case review.

Instead what it did was the more minimal ‘regulation six’ report in which it runs over the bones of the case and any learning from it. But that is the authority which failed to follow procedures writing an assessment of its own failures. This went to the Care Inspectorate which (if we’re being generous) is overwhelmed and (if less so) has a track record of being rather soft on the institutions it inspects.

It nods the council report through and there it would have come to an end – but the mum is heartbroken and is pushing it. It’s just that there is no real route of appeal in any of this for someone like her. This is an instance in which I do understand the position of everyone involved, but it just points to the same thing.

The care system is broken (this isn’t hyperbole, literally anyone near care services will tell you this) and so rather than shine more light on where and how it is broken it is just too tempting to not ask the question. But that’s not good enough.

Another instance; a different elected member in a different local authority made a complaint about the CEO. Basically someone who should have been a neutral senior council official answering directly to the CEO was caught on microphone badmouthing the councillor concerned in a manner he considered defamatory.

The problem now is that I have been through all the correspondence on this and it just goes round and round with all the familiar features – misdirection, claims of remedial actions which don’t take place, refusal to hand over relevant information, threatening the councillor with the Standards Commission, the usual.

It really is quite Kafka. When I look at it with my ‘what would I do?’ head on it really does feel like the only backstop to bureaucratic power in Scotland is often a Judicial Review. I just can’t see how justice can be pursued using the processes established internally.

I’m going to have to stop there. I keep getting this stuff from people now (one person contacted me telling me that an official they had complained about had accessed information about their children, but I don’t have all the details).

I don’t want to spend all my time writing about this but since nothing is happening in government in Scotland, I thought I’d offer some colour pieces to flesh out the size and scope of what feels like a real problem.

Again, I don’t know in the end what the truth is in many matters I hear about – that is why they’re called ‘disputes’. What I do know is that when I look at these disputes, the rules for dealing with them seem almost custom designed to make sure that only one side has any chance of winning and that rules have been put in place that make it very hard even to disclose relevant information.

But this may not last forever. We’re still awaiting the ruling after Fiona Higgins’ Judicial Review of the Standards Commission, but in some ways it really did feel a little bit of a landmark day. Let me tell you three things the judge said – with a little translation.

"…how can you possibly conduct a proportionality exercise [on right to free speech] when you’re closing your eyes to a good chunk of the facts?". Or “[there’s] something awkward in any judicial or quasi-judicial context about making your mind up in advance as to what you may or may not have an outcome on the hearing".

Or my favourite; "What’s wrong with looking at half a dozen pages of text that provide background and colour?”. Because what indeed? I think we can translate this as ‘people have free speech whether you like it or not, kangaroo courts are generally frowned on and surely you’re not really allowed to make rules which are patently unreasonable?’.

I absolutely do not believe that every failure is the result of ‘conspiracy’. I believe that we hold people to account not to punish but to learn. But I believe strongly that when there is failure there must be transparency because failure which is not respected and learned from is a moral hazard in the future.

And whatever is going on in Scotland, there is far too much failure and far too little accountability.