Sunday, 31 August 2014

Breathtaking complacency on railway funding

The recent disclosure that it could take Scottish Borders Council 117 years to raise the £8.75 million it needs to pay its share of the Borders Railway from house-builders development contributions might have triggered concerns in some quarters, but certainly not within local government circles.

It has taken all of ten years to collect the first £750,000 at a snail's pace average of £74,000 a year which means the outstanding £8 million needs to be garnered in the remaining 24 years allowed under the scheme's business plan.

Unless there is a housing boom of unprecedented proportions sometime soon then at some point the severely cash-strapped council will be forced to take money from its diminishing collection of services and budget heads to meet its railway commitments. A contingency plan is surely a minimum requirement, and council taxpayers should be told where the money will come from should the construction industry fail to fulfil its role as a cash cow.

But in a statement oozing complacency the council's has obviously refused to accept it has a potentially serious financial issue on their hands. According to their man: "The Borders Railway will boost economic activity in the Central Borders. As a consequence it's anticipated there will be an increase in house-building to accommodate a population increase. As the railway is not yet running it is too early to judge how this will turn out in practice - ie over what period we will see more housing contributions."

He went on to concede there had been a slowing down in housing completions in the Borders. But inevitably the slow-down would be followed by growth as the economy recovers. He added: "It is a bit early to get alarmed about underpayment."

There's an unswerving belief within council ranks that even if the levy on new houses lets them down money will be no object. The council's gross budget will be £10 billion over the next 30 year, they argue, so there's loads of scope for wriggle room. And in any case the council is allowed under a legal agreement signed with Transport Scotland to re-phase the annual payments due should the developer contributions not match expectations.

Just two days after the statement predicting an upturn in house-building the Galashiels-based local director of DW Hall, a national firm of chartered surveyors, revealed that the impending delivery of the £350 million Waverley Railway had so far failed to have any dramatic or even discernible effect on Borders property values.

He wrote in his blog: "Local opinion is strongly in favour of the new link, but this has not translated into a general uplift in prices. The significant interest when the project was announced in 2004 appears to have developed into a wait-and-see approach and the likelihood of price increases seems to have been postponed until the line and stations are actually up and running.

"Where the line has had an effect is on seller expectations. Recent prospective sellers in the railway 'catchment area' have been disappointed that their properties have not appreciated as much as they anticipated and in many cases they are selling at or below home report valuation."

Hardly a ringing endorsement for the railway's likely impact on the housing market.

In fact local property prices have a very long way to travel just to get back to 2007 levels. According to the website the average asking price for detached houses in Galashiels has decreased by 21% in the last seven years to £225,183 while flats are down by 43% to £83,800 with the average for all property sales in the town dropping a massive 61%.

There's been little sign of a recovery even in the last twelve months with asking prices for detached properties pitched 15% below August 2013 levels, semi-detached homes down by 9% and flats by 4%. Under those circumstances the construction of new private homes accompanied by the council's £1,734 developer contribution, may not prove to be such an attractive proposition.

Wednesday, 27 August 2014

Stand by for a remake of The Iron Horse?

Mrs Forrester insisted on a trip to Galashiels on August Bank Holiday Monday to indulge in a bout of light shopping. We hadn't been near the retail capital of the Borders for some time, and I was interested to see how vibrant and bustling the place had become as local businesses and residents gear up excitedly for the railway's return.

We were in for a bit of a shock.

Government agencies and the Borders council may have lavished millions on Gala in recent years to the virtual exclusion of other towns and villages in sheep and rugby country. But the impact appears to have been less than positive and we were certainly not left with the impression that the reopening of the Waverley line in 2015 was generating much confidence among the shopkeeping fraternity.

There appeared to be more empty retail premises than you'd have found in a Wild West town after the gold prospectors left, there didn't appear to be many potential customers about, and had there been a favourable wind I fully expected the tumble weed to be drifting down Channel Street and into the ornately restored Cornmill Square.

Surely by now the development department, or whoever arranges for the arrival of new retailers should be snowed under while trying to cope with demand if the Borders Railway is providing an advance energy boost for the local economy.

On the contrary, this week's Border Telegraph informs us there are 36 empty shop units in Galashiels alone, and there's talk of a special 'task force' being required to address the issue. The council's own report on town centre footfall for 2013 puts the vacancy rate at 15 per cent with similar levels of unused units in Hawick (16%) and Selkirk (15%).

The actual footfall figures paint an equally depressing picture with the Galashiels total down from 9,500 in 2007 to 8,100 last year, a drop of 15 per cent over seven years. Hawick and Selkirk have both suffered massive falls in their totals in the same period - Hawick down from 9,680 to 6,200 (36%), and Selkirk from 3,690 to 2,420 (34%).

Perhaps it is time for a promotional movie about the new Waverley line based on John Ford's classic film The Iron Horse (1924). The beautiful Borders countryside would provide the perfect backdrop for Iron Horse Two (or is it Three), celebrating the end of sheep and rugby country's status as a remote frontier and a new dawning of industrial and commercial conquest.

The 2014 epic could show the outside world how our £350 million rail project is about to forge our individual settlements into a new railway community. Like Ford, the maker of Iron Horse 2/3 could bring in large numbers of Cheviots and Aberdeen Angus, then fade them out to illustrate the industrialisation of Border Country.

In the interests of tourism - maybe VisitScotland will agree to sponsor this particular clip - I hope the producer retains one marvellous story line from the original version. It features a scheming businessman who likes to dress up as a Comanche warrior and scalps people to further his money making schemes. I reckon that would be a real crowd puller, and it shouldn't be too difficult to find a local entrepreneur who'd be perfect for the part..

The Iron Horse towns of the 1860s and 1870s - the period in which the film was set - were flimsy affairs. A town is constructed at the furthest end of the unfinished railroad for workers and hangers-on, "a seedy place, always about to erupt into violence."

When the railroad moves on, this town is abandoned, and the residents build another town further west. Could this be the future for Tweedbank and Hawick? Ah well that's the happy ending sorted!

Monday, 25 August 2014

£6 million black hole in council's rail bill?

Research findings from an investigation into Scottish Borders Council's proposals for meeting its £8.75 million share of the £353 million reinstatement of the railway from Edinburgh to Tweedbank suggest the local authority could face a £6.2 million deficit when it comes time to pay the piper.

It probably won't concern those in charge of Borders local government right now as they're unlikely to be in office by 2038 when the account is due to be finally settled. But future generations of local taxpayers will undoubtedly be saddled with any huge outstanding debt. The project's Business Plan makes that abundantly clear.

Back in 2004 when SBC's Executive members endorsed the railway proposals they decided to rely on house builders to contribute £1,000 towards the cost of the Waverley Line from each new dwelling constructed in the Central Borders and North Ettrick & Lauderdale.

They estimated 7,500 new homes would go up in the area between 2004 and 2038 which would cover the original £7.4 million SBC would have to find. When their share of the cost escalated to £8.75 million there was ample wriggle room to increase each developer contribution to £1,500.

Unfortunately the formula appears to have fallen drastically behind schedule from the outset with much lower volumes of construction than expected. And although the levy per house has soared to £1,734 with another review due in April next year only £743,127 had been collected in the ten years from 2004 to June 2014. The mathematicians among you will be able to conclude that another £8 million needs to find its way into SBC's coffers before the Scottish Government calls in the debt.

One of the most worrying aspects of the investigation's conclusions must be the fact that developer contributions have only brought in about £48,000 in the last three years. If the current level of progress is maintained then the "rail fund" will stand at £2.5 million rather than £8.75 million by 2038.

So clearly there is an issue in need of urgent attention. But will the council face up to the fact that its chosen strategy is in deep trouble or will the administration bury their collective heads in the sand and store up the grief and financial problems for their successors while praying for the costs to be written off by a benevolent Scottish Treasury?

It could get even messier. The joint contribution from SBC, Midlothian and Edinburgh councils is currently capped at £30 million at 2012 prices. But if the original 85:15 cost share of the project between national and local government was to be fully implemented at some point in the future then the Borders share could shoot up to £15.35 million. A fairly frightening prospect.

But then again, at the end of the 2012/13 financial year Scottish Borders Council's total debt on General Fund services stood at £193.114 million, equivalent to £1,698 per head of its population. Another £6.2 million wouldn't make much difference, would it?

Friday, 22 August 2014

Energy Agency fails to spark

EXCLUSIVE - by Doug Collie

Ambitious plans for a Borders Energy Agency, which received the full backing of local councillors two years ago, have had to be mothballed before the project could even be launched after the venture failed to attract any funding. The agency is now said to be "hibernating".

A number of organisations, including Scottish Borders Council, were involved in studies and discussions for more than a year before detailed proposals and a final business plan  for the BEA were presented to the local authority's Executive members in February 2012. The impressive collection of reports and other papers suggest a considerable amount of time, effort and resources had been devoted to the project.

A joint report from council chief executive Tracey Logan and Director of Environment & Infrastructure Rob Dickson concluded: "The establishment of a Borders Energy Agency will support a range of council objectives and it is intended that although the organisation will be wholly independent, it is important the council should recognise, support and empower the BEA.

"There are specific service areas which could in future be delivered jointly, including fuel poverty/home energy advice, carbon reduction advice to communities and energy management advice on public buildings".

Councillors were told by Ms Logan and Mr Dickson that funding for the BEA had yet to be finalised, but the council was already talking to the main energy companies with wind farms in the Borders and asking them to contribute by providing cash over a 25 year period. Approaches had also been made to two banks specialising in renewable energy funding, plus national and local agencies, and bids would be made to the Climate Challenge Fund and various European Union programmes to help fund the agency.

BEA was to have three members of staff initially, according to the Business Plan, including a £50,000 project manager, and would require a total budget of £150,000 in its first year.

The Executive members who rubber stamped the joint report were assured: "The drive towards a low carbon economy, renewable energy and energy conservation is certain to continue and BEA should prove to be a model which can be transferred to other areas across the country and to similar agencies across Europe and beyond."

But now another of the 'partners' involved in the venture has revealed that far from being a blueprint to be rolled out across Europe, BEA has in fact been shelved meantime after failing to attract any financial backing. It is not clear whether that decision has been conveyed to councillors, and the local authority has made no announcement to either confirm or deny that the project has proved to be a veritable damp squib.

The annual report of the Trustees of the Southern Upland Partnership says: "Our efforts to promote community-scale renewable energy have also continued to be frustrated by the fact that the Borders Energy Agency (which we helped to set up) has not been able to attract any funding. The BEA is currently hibernating in the hope that circumstances change. It seems to be widely agreed that the need for such an agency is still great."

The BEA has been a registered charity since February 2012. But according to the Scottish Charities Register it has not received any income and has recorded no expenditure since its formation.

Wednesday, 20 August 2014

Beware of the Great Tapestry stitch-up

An item on BBC Scotland's evening news probably had a few of us in sheep and rugby country spluttering with a mixture of rage and disbelief tonight as we were informed by broadcaster Cameron Buttle that a custom-built heritage centre was to be developed at Tweedbank to accommodate the Great Tapestry of Scotland.

I could have sworn a decision had yet to be taken on this controversial and highly expensive idea which not all of us favour. We are already faced with a £40,000 bill from consultants who are supposed to be assessing the pros and cons of the venture on behalf of Scottish Borders Council. But I'd no idea the project had been given the proverbial green light.

In fact this week's Border Telegraph carries a report in which our local government supremo and Tweedbank resident David Parker is quoted as saying a preliminary report is expected in October, and an announcement might be made about additional funders in the not too distant future. One thing was for certain, he added, there was no prospect of the tapestry being located in Hawick. So there!

As Mr Buttle disappeared from the TV screen the re-wind button on Sky Plus went into overdrive as I sought confirmation of what appeared to be a BBC exclusive. And yes, sure enough, there was the intrepid reporter at the southern extremity of the Borders Railway route announcing to the world: "This is going to be the home of the Great Tapestry of Scotland" courtesy of that purpose-built heritage centre, which we already know could involve spending up to £5 million of someone's money.

So had the consultant's report been rushed out? Had council leader Parker, a dab hand at cancelling council meetings of late, called the troops in for a special assembly to nod through a recommendation for approval? No mention of it on the council website.

Councillor Parker did appear before the camera to inform us the £350 million railway, due to start operating on September 6 next year, would become one of the most used tourist lines in the country, and we just had to make sure we reap the maximum benefit from it.

 I suppose that could have been a hint that many more visitors would flock south if the large collection of textile panels just happened to be hanging out in Tweedbank. But he didn't mention the tapestry by name.

Mr Buttle's next interview was with Alistair Moffat, the award winning writer, and one of the team which developed then produced the tapestry. Mr Moffat appeared to be standing in front of the tapestry as he assured viewers the Borders would soon have the busiest tourist line in Scotland, and so it would be good to have a world class attraction in place. But he didn't mention the tapestry by name.

It appears Mr Buttle had jumped the gun slightly by declaring "this is going to be the home of the Great Tapestry of Scotland" But at the same time the promoters of the project were giving it The Hard Sell, and it will be akin to a miracle if the council decides at the end of the day to shelve the plan completely or even consign it to the back burner. It seems The Great Tapestry of Scotland will be coming to Tweedbank whether we like it or not.

Monday, 18 August 2014

They come bearing gifts....

Another Freedom of Information revelation from Scottish Borders Council allows me to pose the following question - what do four bottles of Smirnoff vodka, a day at Kelso races, a golf outing to Turnberry, flights to London with hotel accommodation and dinner, and a £20 box of Thornton's chocolates have in common?

Answer: They were all gifts or hospitality offered to members of the council's staff by private companies during the last three years, and have been logged on the local authority's in-house hospitality register. Apparently every enticement from firms the council has dealings with has to be recorded, but without that FOI request the details would not have been published on SBC's website. Time for a public register perhaps.

Although a significant number of gifts were turned down, a fair number were accepted, and in some cases the register contains comments explaining why the offer received the approval of department managers. But the names of the individuals who were wined and dined, took that trip to London or devoured the chocolates have been carefully blacked out.

We now know that the BTS department (Business & Technology Solutions) at SBC took delivery of the four bottles of Smirnoff (valued at £70) in October 2013 from a company called AVM Education Ltd, of Sunbury-on-Thames, specialists in audio visual and video conferencing.

There is no apparent reason for the gift, and in the manager's comments column the entry reads: "This was accepted by the staff who were unaware of the policy re-gifts etc. The vodka is in IT and we have suggested it is donated to charity."

BTS were also the beneficiaries of Dell/Microsoft's generosity in January 2012 with invitations to a Burns Supper at the Edinburgh International Conference Centre (value £150). The invitation was accepted.

 And the same department was offered a £69 Amazon Kindle by the Scottish Information Assurance Forum (SIAF), which was received in December 2012, but was later returned to the organisation. SIAF specialises in information security, and charges public bodies, including Scottish Borders Council, an annual membership fee of £450.

Another supplier called Exactive, whose mission is "to transform the way people work" paid for flights to London (£120), hotel accommodation (£140) and dinner (£80) in a package worth £340. Yet again BTS were the beneficiaries but no details of why the trip was made.

The staff at Newtown St Boswells appear to have been bombarded with at least seven offers from Baillie Gifford, one of the council's four pension fund manager, although all but two appear to have been turned down. The exceptions were a pre-conference dinner at Glengoyne Distillery in March this year,( hospitality valued at £80, according to the register), and dinner at another conference in Dundee in 2013 (£50).

Another staff member in finance received wine worth £60 from the Local Government Chronicle as a thank you for taking part as a speaker in a conference.

A member of the Legal Department enjoyed drinks and dinner at Kelso Races (value £50) courtesy of Walker Love, the company used by the council as Sheriff Officers when court orders are required to pursue council tax debtors.

The register includes an intriguing entry for that £20 box of Thornton's, gifted by Lloyd's TSB to 'Resources' at the council. The manager writes: "This was checked with me before accepting - to return would cost more than chocs and there had been extensive disruption".

And finally, a £65 dinner invitation, also for 'Resources' from Thomas & Adamson, an international construction and property consultancy. The event, the Women in Property annual dinner at Edinburgh's Balmoral Hotel warranted a manager's comment: "Good for the council to be represented at such events as a property owner and sends the message that the council takes gender equality issues seriously".


Thursday, 14 August 2014

Problems aplenty, but no need for meetings

The problems and issues confronting local government in the Borders may be well documented... the proposed transfer of cultural services to a trust, public disquiet over changes to the school week, formation of an arms length company to deliver community care, never ending budget cuts, and the abysmally low volume of investment by national agencies in the local economy.

It constitutes a list of topics ripe for debate, a dripping roast of an agenda for any councillor worth his salt to sink his teeth into, and an opportunity to hold our less than perfect administration to account.

Sad to say there will be no verbal exchanges across the Newtown St Boswells chamber this month on any of these important subjects after the ruling group cancelled August 28's full council meeting 'due to a lack of business'. And to make matters worse the cancellation has taken place without any consultation with members of the opposition. A crushing blow for local democracy.

But it gets worse! A quick scan through the programme of meetings displayed on the SBC website reveals that two other meetings scheduled for August have also been abandoned. We are told the Environment & Infrastructure Committee get together planned for August 21 has been cancelled because there is 'no substantive business'

Meanwhile the Petitions Committee, scheduled for the same day, will not meet due to 'lack of substantive business'. Who took these unilateral decisions?

Apparently the cancellation of the full council meeting was conveyed to elected members via email. The reason? Historically, the August meeting is very quiet with only a small number of reports to consider.

But surely reports could have been prepared earlier or the opportunity could have been taken to talk about some of the more pressing issues. Are our councillors unable to debate topics of THEIR choice without a crib sheet filled with hyperbole and gobbledegook  from their paid staff? That certainly seems to be the case. Come on boys and girls, take the initiative for a change: give democracy its head.

The fact that members of the Environment & Infrastructure Committee could not or were not allowed to assemble an agenda demonstrates a complete lack of practical sense and imagination. The latest landfill tax figures for the Borders - up by a whopping 27 per cent in two years to £2.9 million require urgent scrutiny, a report on the public reaction to the withdrawal of green bin collections would have been extremely informative, and there must be a host of questions to be asked about the greatest local infrastructure project for more than a century, the £353 million Borders (or is it Waverley) railway.

There hasn't been a meeting of the full council since June 26, and following this month's cancellation our 34 salaried representatives wont assemble as a single entity again until September 25. Money for old rope I hear you cry!

Not so. A proposal by the Local Government Boundary Commission for Scotland - the deadline for public consultation and submissions falls on the same day as those meetings of the environment and petitions committees should have been held - could reduce the number of Borders councillors from 34 to 32.

Cue bluster and outrage at council HQ. In a response SBC warned such a cut in their ranks would almost certainly lead to "overloaded councillors". Larger council wards would mean not only increased workloads, but also increased travel and travel time.

The statement went on: "With fewer councillors, the standard of and length of time for engagement with the public could reduce, response times could be longer or time spent with individual constituents could decrease as councillors would face responsibility for more members of the public".

In light of this week's regrettable cancellations maybe some of you would care to let the Commission have your views on councillor numbers by next Thursday.

Wednesday, 13 August 2014

Borders landfill tax...why not just burn £2.9 million?

The day after our Borders garden waste collections were withdrawn on March 31 this year by our feckless council administration the landfill tax across the UK went up from £72 to £80 per metric ton. One wonders if any of the 19 elected members who voted to consign the green bins to the scrap-heap were even aware of the looming eleven per cent hike in the landfill levy.

Now we hear of elderly pensioners having to hire taxis to take their lawn clippings to the recycling centre, and there are disturbing tales of garden fires spreading out of control and damaging neighbourhood property.

It must also be a matter of considerable concern to the green lobby, not to mention those of us who are forced to sponsor Scottish Borders Council via the council tax, that the levels of landfill payments flowing out of the Newtown St Boswells coffers and into HM Revenue and Customs is increasing at a phenomenal rate...27% in two years to be precise.

Official council figures for landfill tax paid over the last three financial years are as follows: 2011/12 - £2,325,199; 2012/13 - £2,652,668; 2013/14 - £2,950,752. Scotland's waste strategy tells us those statistics should be heading in the opposite direction if ambitious recycling targets are to be met.

There will be no chance of that happening in the Borders this year given the plain daft decision to scrap the fortnightly green bin uplifts which allowed 7,526 tonnes of garden waste to be composted in 2012.

Send the equivalent of that tonnage to the Easter Langlee tip for landfill and the tax bill shoots up by another £602,000 against the saving made by abolishing the collections (£475,000) and you're into the economics of the madhouse.

SBC sent 52,861 tonnes of household waste to landfill in 2012 (55.7%), recycled 22,648 tonnes (42.8%) and recovered 777 tonnes (1.5%), according to the Scottish Environment Protection Agency (SEPA). The proportion recycled/composted fell by 3.5% from 46.3% in 2011 at a time when the national average recycling percentage increased by more than a full percentage point.

This year, as a direct result of the green wheelie bin fiasco Borders recycling rates are predicted to fall by five per cent to somewhere around the 37% mark, according to the council's own calculations. Meanwhile a significant number of Scottish local authorities are proudly achieving recycling rates in excess of 50%. Talk about being off message.

The nonsensical policy to place obstacles in the way of recycling as introduced by our municipal masters conjures up a vision of lorry loads of paper currency...2,950,752 crisp £1 notes to be precise...being carted to the outskirts of Galashiels before being tipped into the Easter Langlee incinerator. That would probably make about as much sense as filling out a cheque in the name of George Osborne so that an equivalent amount of Borders council taxpayers' money can be syphoned off to Westminster.

Monday, 11 August 2014

Planners exceeding powers, claims duke's lawyer

A leading expert in planning inquiry advocacy, who represents Scotland's largest private landowner in a bid to block a highly contentious wind farm scheme, claims Scottish Borders Council is acting outwith its statutory powers, and any decision taken in the case could face a legal challenge.

Buccleuch Estates are among hundreds of objectors to the planned wind farm development at Windy Edge, close to Hermitage Castle, described as "the guard house to the bloodiest valley in Britain". Last year Infinis Energy submitted a planning application for 17 turbines, each up to 121.5 metres high right in the heart of wild Border Reivers country.

Opponents - including Historic Scotland, the custodians of the Thirteenth Century castle - warned the windmills would introduce a feature into the landscape of Liddesdale which would challenge the monument and its setting.

In a written submission to the council Historic Scotland state: "Hermitage Castle is one of the great medieval fortresses of Scotland, associated with stories which are historic, heroic and horrific. Some true - Mary Queen of Scots' visit, some less believable like the story of the evil Lord Soulis and the Cout of Kielder, a giant with magic chain mail."

In an attempt to meet concerns for the castle Infinis wants to reduce the number of turbines at Windy Edge from 17 to 9 by removing the so-called eastern array closest to Hermitage. At the same time the remaining towers would extend up to 125 metres, and there's a community benefit fund worth £135,000 per annum on offer to the Newcastleton area. But consideration of the proposals is set to drag on until at least the end of this year.

Borders planners have indicated the authority will accept the change from 17 to nine turbines as "further environmental information", and a revised application will not be required. The variation does not, in the view of planning officer John Hiscox, constitute a substantial difference in the description of the development for which permission is sought.

However, Alastair McKie, head of planning and the environment at law firm Anderson Strathern has taken issue with the planners' stance. He represents Buccleuch Estates as well as the local Hermitage Action Group, which is fighting the proposed wind farm tooth and nail.

The expert in planning law, regarded as a leader in his chosen field, specialises in development inquiry advocacy. Buccleuch Estates own 240,000 acres of land in the Borders, Dumfries & Galloway and Northamptonshire with an estimated value of £800 million to £1 billion.

Mr McKie says he cannot see how the proposed changes could be anything other than substantial because of their effects and impacts, some of which will increase. The current application should therefore be withdrawn and a fresh one submitted.

In an email exchange with Mr Hiscox he adds: "My clients maintain that your council is acting outwith its statutory powers in this matter. I specifically reserve my clients' right to challenge any decision made by your council in its determination of the application".

Infinis, which currently generates seven per cent of the UK's renewable energy from 16 wind farms, say they have cut the number of proposed turbines at Windy Edge from 17 to nine despite advice from two independent archaeologists that the original layout would have an effect of minor significance on the setting of Hermitage Castle.

Saturday, 9 August 2014

Why should we have to ask?

Just days after my previous outpourings, which concentrated on the abject failure of many public bodies - our local council included - to achieve high standards when dealing with Freedom of Information requests, I could have sworn the Scottish Information Tsar (sorry Commissioner) had experienced a 'Eureka!' moment.

In a special report to Parliament on Thursday, Rosemary Agnew expressed serious concerns about the continuing unacceptable attitude of some councils, health boards and other agencies who simply fail to respond when we have the audacity to ask them questions. Hope you heard the penny drop.

Ms Agnew claims in a 33-page report that Scotland's well-regarded FOI set-up could be undermined unless authorities which have been simply ignoring requests over the last nine years change their errant ways. Sorry Commissioner, but the ducking and diving I referred to in that previous article is set to continue unless the culprits face meaningful sanctions.

The latest collection of Freedom of Information requests to Scottish Borders Council, and the responses, were posted on the SBC website this weekend. Because there is no obligation on public bodies to diligently publish answers on a regular basis, we've had to wait a couple of months for an update, and some of the stuff dates back to May.

Surely this flaw in the arrangements should also be addressed for there is not even an obligation on the organisations providing public services to publish requests and answers at all. In other words the information should be out there, but it isn't. Why not publish the FOI list once a month?

I'm grateful to the FOI requesters who asked about payments to external law firms, the amounts of cash SBC handed out in employment tribunal settlements, and the number and size of redundancy and severance packages for those leaving the Good Ship Newtown St Boswells.

For the record, law firms engaged by SBC earned more than £275,000 over the last four financial years, and 48 tribunal settlements accounted for £477,955 plus another £25,000 in costs for the council to defend the cases.

The facts and figures on redundancies are included in the recently published annual accounts so I wont repeat them her, and my own search to see how much had been spent on private consultancy firms failed to produce a recent set of figures.

Rest assured, it will amount to a tidy sum for I see from a previous FOI request in 2012 there was a running total at that time of over £400,000.

Under the present arrangements requesters like us will continue to quiz the public sector in search of information which we are entitled to have. But on the other side of the divide some clever-dick official will be dreaming up yet another dodge to deny access to the facts in cases where disclosure could cause embarrassment or lead to calls for some kind of investigation.

So what could be done to prevent the obfuscation and confusion outlined in the Commissioner's special report? Well I don't see why we have to ask for much of the information in the first place. Why not make it compulsory for councils and others to publish how much they spend on outside law firms and consultants every three months, details of each local authority department's credit card expenditure - say twice a year - and so on? And I'm sure many other categories of information could easily be included on a statutory list.

The effect would be to reduce the number of FOI requests while also reducing the pressure on the Commissioner and her staff who seem to spend at least 25 per cent of their time chasing those organisations who don't respond in time.

Tuesday, 5 August 2014

Our right to know? You must be joking!

Nine years on from the introduction of the Freedom of Information Scotland Act (FOISA), and those of us who think it matters how Scottish Borders Council spends our money should be awash with facts and figures covering every subject under the local government sun. After all, under FOISA, we have a RIGHT to know even if the council would rather we didn't.

Unfortunately, so far as I can see, FOISA has failed miserably to deliver, and as far as SBC is concerned the same off-hand and sloppy attitude towards Freedom of Information (FOI) requests is on display far too often. This will be an attempt to show that when it comes to responding to requests for information our council has not changed its attitude much, if at all, since 2006 when the first disputed case was submitted to a higher authority.

But first it has to be said the FOI system is stacked against any individual who might wish to question his or her local authority or other public body covered by the legislation.

The first major obstacle is the lack of any clause or section within FOISA which demands that our public servants respond with honest and accurate answers. So they can tell you virtually anything, and get away with it. Then there's the small matter of exempt information, a long agenda of items which they'd rather keep out of reach of inquisitive taxpayers, and frequently achieve that objective.

Perhaps the biggest stumbling block of all is the complete lack of fines and other sanctions within the regulatory system. Disputes involving FOI are administered by the Scottish Information Commissioner (SIC), but there has never been a single referral with a view to prosecution under FOISA.

The extremely light touch means agencies which are less than honest or efficient on the FOI front merely suffer a meaningless slap on the wrist then move on to their next demeanour. But at least it keeps the Commissioner and her staff of 22 with their annual budget of £1.5 million in employment.

A requester must give the council two shots at providing a satisfactory answer, including the chance to review the original response which is due to be delivered within 20 working days. If that fails to settle the matter then you can lodge an application with the Commissioner for a final decision.

Since 2006 there have been 38 "referrals upstairs" by SBC requesters, and in 25 (about 68%) the SIC has either found in favour of the applicant or partially upheld their plea. That represents a high 'offending rate' on the part of the council, but they show little sign of changing their ways.

In July 2006, shortly after FOISA's introduction, a requester asked for detailed information about the cost of an investigation within the architect section of the Council. SBC did not bother to respond at all. A repeat request was lodged on August 23; again there was no response so an application was made to the SIC for a decision.

It read: "The Commissioner finds that the council did not deal with the request for information according to requirements and failed to comply with Part One of FOISA".

Fast forward to 2014, and two recent decisions from the Commissioner. In the first case, on February 19 a
requester asked SBC about complaints made against school departments in each of the previous five years. The council did not respond, so on April 21 the questioner requested a review. Astonishingly, the council totally ignored that request too. The SIC was approached on May 28, and finally received written submissions on June 16.

SBC acknowledged its failings. The council initially failed to log the request and there were further delays in collecting accurate information after the request for review. SBC claimed "a review of procedures" was under way, something that should surely have been undertaken after the 2006 debacle. But it seems the local authority had also failed to take heed of previous SIC decisions and had done little or nothing to clean up its act.

Weeks later SBC was back in the SIC "court" on virtually identical charges. This time a requester lodged questions with the council on April 2 2014 for information about data protection breaches. There was no response by May 6 when a request for review was submitted. But yes, you guessed, again no response from the council.

And to compound matters SBC did not even take the trouble to offer the SIC a written explanation when invited to do so after the application for a decision was made on June 18.

In her written decision the Commissioner warned: " ENFORCEMENT: If SBC fails to comply [by responding to the requester by August 29] the SIC has the right to certify to the Court of Session that SBC has failed to comply. The court has the right to inquire into the matter and may deal with SBC as if it had committed a contempt of court."

As long as public bodies can continue to flout Freedom of Information legislation in this manner without fear of sanction or even conviction then surely the entire system is fatally flawed. After nine years of ducking and diving their time should be up. FOISA must be completely overhauled with all of the advantages on the side of the citizen rather than the body corporate.

Sunday, 3 August 2014

Pension records in the skip, still a cause celebre

It may be almost a year since Scottish Borders Council wriggled off the Information Commissioner's £250,000 hook after forking out a small fortune in defence fees in the infamous "Pension Records In The Skip" case. But the ramifications and ripples for those working in the information rights industry continue with finger pointing and a fierce war of words still raging across cyberspace.

The council was hit with the quarter-of-a-million pound "fine" after failing to notice their regular data processor had dumped up to 1200 paper files carrying personal details of members of the local authority's pension scheme in a supermarket waste bin at South Queensferry.

It was only when the bins overflowed that the horrendous breach of security came to light. The man who had held the council's processing contract for years later told the press that, unbeknown to his employers, this had been his normal, if somewhat careless method of disposing of SBC's redundant paperwork.Shredding might have been a better option.

In the eyes of the hundreds of potential victims, whose names, addresses, National Insurance numbers and bank details were left fluttering in the breeze, the potentially catastrophic episode can only have been regarded as a record breaking breach of the Data Protection Act. On the face of it a £250,000 penalty seemed fully merited.

But experience tells us it is extremely rare for any public authority to take the rap for wrongdoing of any kind. So, armed with council taxpayers' cash SBC engaged specialist lawyers Brechin Tindal Oatts (BTO) to mount a successful appeal against the Information Commissioner's 'conviction'. It mattered little to our councillors and their officials that BTO would pocket more than £28,000 in legal fees while expert witnesses commissioned on the council's behalf would account for another £19,000. Throughout the entire sequence of desperate efforts to 'clear' SBC's name there was little, if any thought given to the individuals blighted by the council's gross neglect and lack of control over processing.

Proceedings finally ground to a halt in August 2013 after almost two years of hearings and debate, and SBC hailed the outcome as a veritable triumph despite the unnecessary financial outlay to cover their dreadful errors. There was no mention of the £48,000 racked up in legal fees and other charges, and when the time and effort devoted by SBC's in-house legal team over the two-year campaign to strike down the 'fine' is added into the equation then the true cost may well be adjacent to £100,000.

BTO solicitor advocates Paul Motion and Laura Irvine were SBC's saviours, and could rightly claim a stunning legal victory over Information Commissioner Christopher Graham. They had persuaded the appeal tribunal the Commissioner's reasoning behind his financial penalty was flawed as the breach of data protection, though serious, was not likely to cause substantial damage or substantial distress.

That seemed to be that. But now, in an article written to mark the upcoming first anniversary of the landmark ruling Mr Motion and Ms Irvine claim the ICO does not appear to have learned lessons from the SBC case and continues to dispense identical monetary penalties which cannot be justified.

They say: "Out of the 19 fines issued during the last year by the ICO, three were imposed for the loss of personal data that – like the SBC appeal data - was not classed as sensitive. However in all three cases the ICO nonetheless felt able to assert that it was likely that the contravention would have caused substantial damage by exposing the data subjects to identity fraud and possible financial loss. In our view given the decision in the SBC appeal, the ICO would have struggled to demonstrate to the Tribunal that the contravention in these three cases was of a kind likely to cause substantial damage or substantial distress."

There is no direct reference to the Borders case in Mr Graham's recently published annual report, but he has complained about the outcome of SBC's appeal in newspaper interviews. According to BTO Mr Graham had been 'miffed' by the ruling.

In what amounts to clear criticism of the Commissioner the BTO lawyers write: "The likelihood of damage must be based on more than conjecture and distress has to be more than mere irritation. If evidential thresholds are getting in the way of monetary penalties the answer is to provide the requisite evidence, not to call for the lowering of the threshold and potentially criminalising conduct that is undeserving of such categorisation."

But information rights expert Tim Turner, a former policy manager at the ICO who now runs his own training company, claims in his blog that Motion and Irvine's review of recent action is "eccentric, even myopic".

He agrees the ICO approach is flawed and inconsistent. But Mr Turner supports monetary penalties for breaches of Data Protection.

He adds: "I fear Irvine and Motion have lost sight of the purpose of the legislation. It is there to protect the public and to facilitate lawful, legitimate business activities. Personal data should be respected and handled with care. Some organisations will comply without sanction, but we need a strong effective regime for those who wont."

I'm sure those members of the SBC pension fund whose confidential, personal papers were scattered around that South Queensferry car park on September 10 2011 would wholeheartedly agree.

Saturday, 2 August 2014

Not just sheep and cricket!!

We're remembering the fifty-fifth anniversary of the Two Boy Test Match between England and India...or at least I am. I haven't a clue where the other obscure cricketer is now, so obviously I cannot say whether he is raising a glass in celebration this week.

I concede from the outset that this contribution may only appeal to a very limited readership. The Scottish Borders and the extremities of North Northumberland have never been cricketing hot-spots, and those who have played the game in these parts have tended to do so virtually unnoticed.

For those of us who love the sport there's an exciting Test series in progress just now with England and India level at one victory apiece with two matches to play. Perhaps it was the arrival of those Indian tourists earlier this year which triggered flashbacks to the glorious summer of 1959 when the Borders provided the backdrop for an epic contest between Willie and me.

It was an era when English cricket enjoyed near world domination with the likes of Peter May, Ken Barrington, Colin Cowdrey, Fred Trueman, Godfrey Evans and Brian Statham combining to thrash an emerging Indian side 5-0. But things were a little bit different in our back yard where fortunes fluctuated throughout the long, hot school holidays.

I wonder if many kids nowadays could be bothered to prepare for, then participate in their own Test series. The modern generation of emerging teenagers is surrounded by counter-attractions and the ever developing world of new technology. Down on the farm we had a couple of home made bats, a set of crude stumps and bails, a few battered tennis balls and very fertile imaginations.

Our cricket pitch wasn't so much The Oval as The Oblong; a concrete expanse measuring maybe eighty yards in length by 30 yards across. In winter it was home to piles of turnips or farmyard manure, but in summer it was available for cricket seven days a week.

An eight-foot high wall ran down one side while the other was bounded by a barn. A hit over the wall into the adjoining field of grain resulted in dismissal, and there were other quirky by-laws and restrictions which I've long forgotten about.

The physical shape of the 'ground' meant straight drives were the only scoring shot allowed. A single for getting the ball past the bowler; two if it ran on past the next marker, and so on to the boundary which doubled as the farm road to the outside world.

A faint air of authenticity was added to proceedings with the construction of a scoreboard fashioned from strips of discarded linoleum tacked on to plywood. Pieces of cardboard bearing the players' names were slotted between the lino, and scores were painstakingly updated at the end of each over.

Willie was a year older - and bigger than me - so he was able to 'be' England each time we took to the concrete. While Willie posed as May or Barrington I became Desai or Surendranath when bowling or Manjrekar or Borde when wielding the bat. An unusual collection of boyhood heroes for a schoolboy from the Borders in 1959, but they only stayed with me for one cricket season. Dennis Compton was the real star in my firmament although his Test career had ended in 1957.

Play at The Oblong was usually under way before nine in the morning, and continued until noon when the farm staff returned for lunch (or dinner as it was known back then). Whoever happened to be batting was also saddled with the task of providing a running account of play in the style of BBC radio's John Arlott, the greatest commentator of them all.

We were out on the square again after a 30-minute break, giving it our all till tea time. In the evenings it was my job to fill in the score book - a pilfered school jotter to be honest - in my finest copperplate writing, copying the style of the BBC's Maurice Ryman, the most talented of calligraphers, who lovingly crafted the TV score cards before technology rendered him redundant.

The outcome of the Two Boy Test Series may be lost in the mists of time. And Willie has probably forgotten all about our boyhood exploits. But it would be nice to think that somewhere right now a couple of lads are staging their own Two Boy Test Series having adopted temporary heroes from the current England and Indian teams.