Secret Scotland: What is the Crown Office hiding?

Important information about the smacking ban is being withheld under freedom of information laws. This ‘secret Scotland’ approach is anti-democratic, argues Be Reasonable.

In April, the Crown Office and Prosecutor Fiscal Service (COPFS) was asked for information it holds concerning the smacking ban. A freedom of information request sent to COPFS sought copies of correspondence with the Scottish Government in recent months.

Freedom of information laws are supposed to allow such scrutiny to take place. They are a vital democratic tool that equip the media, and the public at large, to keep appraised of what is going on behind the scenes. Frustratingly, the authorities don’t always play ball.

Responding to the request, COPFS admitted that it does hold information, including a “debate” between COPFS and the Government on “correspondence from a third party” and discussion around administration of the new law, but it has opted to keep this under lock and key. Releasing such correspondence, it said, would not be in ‘the public interest’. A further request for COPFS to come clean by Be Reasonable was rebuffed last week. 

This doesn’t seem right. In a democratic society, the Government and other authorities must be transparent about their work. Especially when the work they are carrying out – a change in parenting techniques enforced through the criminal law – will directly affect the lives of families across Scotland for years to come.

If the Government and other authorities must withhold information, it should be for a good reason – because disclosure presents a risk to national security, or could significantly undermine the democratic process. It’s not clear that these tests have been met in regards to the information that was sought.

The Crown Office’s reference to a ‘debate’ between the Crown Office and the Government related to the smacking ban raises important questions: who is this third party? And what exactly was the debate about? The information COPFS holds may reveal challenges the prosecutor is facing, and even pushback from other groups. The Scottish public deserves to know the details of this exchange. The idea that it isn’t in their ‘interest’ is patronising to say the least.

In January, it was reported that the police have serious concerns over implementation of the smacking law. Senior officer at Police Scotland told the Government that the ban will have a “significant impact” on their finances as it requires almost all current officers to be retrained and IT systems to be upgraded. It is likely that COPFS will face similar challenges in terms of logging and prosecuting offenders. Yet they also refuse to disclose information that they hold on administration of the new law.

In order to challenge the decision by COPFS not to release the information, a petitioner must ask for an internal review. This could take up to 60 days and result in the same decision being made again. A further appeal to the Information Commissioner could take longer still. In the current coronavirus climate, it may not be resolved until after November when the smacking ban is already in force. This means there is no way to force COPFS to release the information it holds. This hardly seems democratic.

The smacking ban is a highly controversial proposal and has been the subject of strong debate in Scotland since it was proposed. Polls have consistently found that the majority of Scots do not want to see a law to criminalise smacking and experts have warned of a host of unintended consequences. 

Perhaps the Government and the Crown Office, which relies on its money, would rather keep any issues with the legislation away from prying eyes. If this isn’t the case and the information they hold is uncontroversial, why not release it? As the authorities often say, ‘if there’s nothing to hide, there’s nothing to fear’.