Letting in the Air or Pouring on Fuel?

What happens when behaviour that used to be ‘normal’ suddenly becomes potentially toxic for a politician? This is the problem facing some of the most senior members of the government as the hacking scandal unfolds.  Since Thatcher’s day, regular meetings with members of News International have been part and parcel of being (and, some would argue, staying) in power in the UK. Only now it has become dangerous and damaging.

David Cameron, George Osborne and others are in a potentially tricky position. All long advocates of transparency, one of their responses to the unfolding hacking crisis has been to pro-actively publish details of all their meetings with News International(see here), perhaps taking a leaf from Alex Salmond’s book who ‘killed’ a story about collusion with Donald Trump by publishing all he had.

This counter-attack by transparency is a gamble. Instead of smothering the story with the disinfectant of sunlight, it could add fuel to the ‘firestorm’. One of the difficulties is that this information reveals just how many meetings took place, as this recent bureau of investigative journalism analysis shows and this guardian number crunching. This is not unusual but in the light of the two weeks of allegations looks poisonous. What, people may ask, were all these meetings about? What was discussed?

This leads on to the second problem, which is that the transparency only goes so far. There are no minutes of what was or was not said during these meetings. David Cameron, for example, has said he had no ‘inappropriate’ discussions with Murdoch about his ongoing (now dropped) bid for a larger stake in BskyB. It’s not clear what this means or, indeed, if we could ever find out.

Tom Watson MP, who has been pursuing the hacking case for a number of years, believes that the scandal still has a long way to go. It’s often said that yesterday’s headlines soon becomes today’s chip paper. But can it work backwards? As the scandal unfolds pieces of a very complex jigsaw assume new significance. Can last month’s innocuous information, placed on a website, become tomorrow’s time bomb?

Ireland gets a new Chief Justice…

… and a new barrier broken. Not only will Mrs. Justice Susan Denham be the first woman to lead the Supreme Court, she will also be Ireland’s first Protestant Chief Justice (that the latter point is less remarkable than the former  illustrates that a lot has changed in Ireland in the last 30 years). The soon-to-be Chief Justice’s appointment does not come as a surprise: she has always been very well-regarded and, having been appointed in 1992, is the longest serving member of the Court. Generally regarded as quietly activist on a Court that is more or less ideologically inscrutable (but in practice conservative in recent years), the appointment may give a more liberal direction to the Irish Supreme Court. Two of the most senior Irish law officers are now female. With the recent change of government Ireland also got its first female Attorney General, Máire Whelan SC.

One of the new Chief Justice’s first tasks will be to smooth relations between the government and the judiciary which have been ruffled by a proposed referendum to facilitate the reduction of judicial pay, due to take place in the autumn.

(PS: I am open to correction on this, but I believe Mrs. Justice Denham may also have broken through a somewhat more difficult glass ceiling by being the first Chief Justice to graduate from Trinity College Dublin and not University College Dublin, from whence the vast majority of her predecessors and current colleagues have graduated. There’s hope for us all…).

Watch That Man? Interesting FOI requests to keep an eye on

An interesting series of FOI requests have been made via whatdotheyknow.com in the last few days and weeks. One concerns the vetting of Andy Coulson

‘Dear Prime Minister’s Office,

Please could you tell me what vetting agency was responsible for
vetting Andy Coulson before he became director of communications at
Downing Street?’

And another asks for all his emails, which builds on top of a request made by Labour MP Tom Watson in 2010 about his status and salary while at number 10. Someone else has asked for details of meetings connected to Operation Weeting.

Isle of Man’s slow progress on FOI

Flag of Isle of Man

After four years in the works, Manx chief minister warned that a Freedom of Information law would be expensive to maintain.

In the last sitting of the House of Keys June 28, chief minister Tony Brown said the Code of Practice on Access to Government Information – the self-governing Crown Dependency’s current regulation “has served this island very well,” and added that ministers would have to consider whether they were willing to take on the cost.

Brown said the government would have to spend £1 million a year to administer the law, and a further £2 million to set it up.

General elections in Isle of Man will take place September 29, so the bill will be passed on to the next chief minister and council. The last sitting of Tynwald, the island’s parliament, was July 12.

Roger Tomlinson, chair of the Positive Action Group, a political pressure association that has been actively lobbying for the passage of the law in Isle of Man for five years said the FOI bill was not a priority for the Council of Ministers.

The Manx public has been let down by this administration which claims to be open and accessible. Mr Brown has effectively filibustered the Bill. In this modern world It is important that people are allowed reasonable access to information on a statutory basis. We are being denied that same right. Mr Brown and his colleagues in [the Council of Ministers] ought to be ashamed of the way this legislation has been effectively sidelined.

Plans for a law in Isle of Man began four years ago with a public consultation and the beginnings of a Draft Bill that same year. But the initial momentum didn’t persist. The Draft Bill was again brought forward for public consultation three years on, and had a first reading in the June sitting of the House of Keys.

When prodded by Cannan, who asked why the bill was “not a matter of priority,” Brown responded the bill was a “complex piece of legislation” and needed much public input.

The proposed bill contains exemptions similar to UK’s 2005 Freedom of Information Act, according to the BBC.

All this talk of cost is reminiscent of Jersey’s recent debate about its own law – where its over £5 million yearly cost seemed to mar its prospects of survival.

Jersey’s FOI law was passed May 4 – to the surprise of many – but the States Assembly decided it would not go into effect until the end of 2015.

Clegg comes through for the Conservatives on Constitutional Reform

At a joint Constitution Unit/Institute for Government seminar on 11 July I developed three propositions:

  1. The Conservatives are just as much a party of constitutional reform as the Lib Dems, but this has never been acknowledged, not least by themselves.
  2. Nick Clegg in taking the lead on the whole of the government’s constitutional reform programme has taken responsibility for delivering the Conservatives’ reforms as well as the Lib Dem ones.
  3. At the end of the coalition government, Clegg will have delivered more of the Conservative package of constitutional reforms than his own. In particular, he will have failed on the AV referendum and on Lords reform, the Lib Dems’ two biggest priorities.

For proof that the Conservatives are a party of constitutional reform, see the report which I wrote analysing all the Conservatives’ plans for constitutional change in February 2010. To my surprise it ran to 12 chapters, and can be found here.

For proof that Clegg will have delivered more of the Conservative package than of his own reforms, see the table here. It shows on one page the main constitutional reform items in the coalition’s Programme for Government. It is not comprehensive, but it does capture the more important of the government’s constitutional reforms. And it is inevitably a crude score card, in that it lists all the reforms as if they were equal, when some are clearly more important than others.

Columns 2 and 3 in the table show where a commitment in the Programme for Government came from: in the Conservative manifesto, the Lib Dem manifesto, or both. Further proof of my Proposition 1, that the coalition’s constitutional reform agenda comes just as much from the Conservatives as the Lib Dems, can be found by summing those two columns. Of the 14 items analysed in my table, 10 were in the Conservative manifesto, and 8 in the Lib Dem manifesto

The last two columns record the Conservative and Lib Dem manifesto commitments. Columns 2 and 3 summarise these by two symbols:

● = manifesto commitment fully incorporated into Programme for Government

○ = manifesto commitment only partially incorporated.

Column 4, headed Result, indicates whether the commitment is likely to be delivered or not. This requires some educated guesswork, and not everyone will agree with my forecasts. Those who disagree can insert their own, to see if they come to a different overall conclusion. My own conclusion, summing up my forecasts, is that at the end of this government Nick Clegg will have delivered six of the Conservative commitments for constitutional reform, but only four of his own. As I put it at the end of my chapter for the Institute for Government report on the first year of coalition government, One Year On:

‘He will get little credit from the Conservatives for this, because they do not see themselves as constitutional reformers. So he risks being damned by his own side for his failures, and ignored by the Conservatives for his successes’.

- Professor Robert Hazell

Update: FOI and the media king

Prime Minister David Cameron pledged more transparency and better recording of all meetings held with the media.

The PM said he would consult Cabinet Secretary Sir Gus O’Donnell about amending the ministerial code “to require ministers to record all meetings with newspaper and other media proprietors, senior editors and executives – regardless of the nature of the meeting.”

According to the BBC, top civil servants and special advisers would also have to record meetings with the media, and the government will not wait for a Freedom of Information request to release it, but rather publish it quarterly.

This comes on the tails of a rapidly developing News of the World phone hacking scandal, which was brought back to the fore after allegations surfaced the newspaper had hacked into telephones belonging to crime victims and soldiers who were killed.

Cameron has outlined the details of the phone-hacking inquiry, which will be led by Lord Justice Leveson, and will involve the culture, practice and ethics of the press, their relationship with the police, as well as re-examine the present media regulations.

The scandal, which is resonating both in international media and in Parliament, has shone the spotlight on the Metropolitan Police, which has been accused of not investigating the phone-hacking case as thoroughly as it could have (a spreadsheet of the dates and meetings between police and NoW have been released on The Guardian website).

It has also questioned politicians’ associations with Rupert Murdoch, the head of News Corporation, and journalists from its newspapers.

Prime Ministers Tony Blair and Gordon Brown’s meetings with the media tycoon have been a subject of public curiosity, but responses to FOI requests have been difficult to get (see previous post).

Cameron, who has also been criticised for not being transparent about his meetings with Murdoch has pledged to open up.

If we are going to say to the police ‘you must be more transparent and cut out corruption’, if we are going to say to the media ‘you must be more transparent and cut out this malpractice’ then, yes, the relationship between politicians and the media must change and we must be more transparent too about meetings.

However, Nick Robinson, BBC political editor, said he did not believe every meeting with every journalist would be recorded, but at least people would be able to see patterns arising between meetings and important decisions.

FOI and the media king

On June 30, a handful of demonstrators gathered outside Westminster touting an eight-foot carbon fibre dummy of media tycoon Rupert Murdoch as a puppet master. From his hands dangled the marionettes of British Prime Minister David Cameron and MP Jeremy Hunt.

The protest was about Rupert Murdoch’s potential takeover of media organization BSkyB, which Hunt, in charge of culture, sport and media, was expected to approve.

On July 6 the puppet master appeared again, and photos of it spread while the media chronicled the phone-hacking scandal that led Murdoch to close News of the World, his empire’s crown jewel.

It’s an image that sticks: the shadowy, larger-than-life character pulling the strings of British policy. In a theatre, he would be hiding behind heavy velvet curtains.

It took a phone-hacking scandal to pull the drapes apart. But before that even happened, requesters under the Freedom of Information Act were already tugging at the fringes, looking to bring decision-making back into the public realm.

According to the FOI tracker whatdotheyknow.com, at least three requesters asked about Murdoch and his meetings with government ministers. One request was refused, two were partially successful – no information about the content of the meetings was disclosed – and the last one, sent only recently, is awaiting response.

Carl Bernstein, the famed journalist who, with Bob Woodward, discovered the Watergate scandal, wrote an article in Newsweek suggesting some similarities to Nixon’s wiretapping.

Almost every prime minister since the Harold Wilson era of the 1960s and ’70s has paid obeisance to Murdoch and his unmatched power. When Murdoch threw his annual London summer party for the United Kingdom’s political, journalistic, and social elite at the Orangery in Kensington Gardens on June 16, Prime Minister Cameron and his wife, Sam, were there, as were Labour leader Ed Miliband and assorted other cabinet ministers.

In fact, newspapers have documented meetings between Murdoch and former Prime Ministers Tony Blair and Gordon Brown, though not much information was obtained on their content.

Details of Blair’s contacts with Murdoch in the nine days before the start of the Iraq War were released in June 2007, four years after Liberal Democrat peer Lord Avebury sent the initial FOI request. They were released as soon as Prime Minister Gordon Brown took over.

But because the content of most of the discussions were not revealed, the media was left to attach official events to phone calls in hopes of getting an idea of what was said.

BBC’s FOI Specialist Martin Rosenbaum was skeptical and as puzzled as everyone else,

In the few days leading up to the start of the Iraq War, Tony Blair had three phone conversations with Rupert Murdoch. One of these was ‘official’ and minuted by civil servants. The other two must have been either ‘personal’ or ‘party political’ or not significant enough to be minuted, if the Cabinet Office is to be believed. What they talked about at this time of extreme international tension we do not know.

Avebury was in the process of appealing this to the Information Tribunal, when his legal team were staggered to be told by government solicitors that the Cabinet Office would give in and disclose the information.

Funnily enough, this capitulation was communicated to them on the day after Gordon Brown became prime minister. So did revealing the dates when Blair talked to Murdoch figure prominently on day 1 of his grid for his first 100 days as PM?

Brown was targeted in the News of the World phone-hacking scandal – as was everyone who is anyone, it seems – but back when all of this was still secret, he was equally reluctant to share details of his own meetings with the media mogul.

The Independent, which issued an FOI request asking for “details of any meetings” between the two was told by a Downing Street official there were no minutes to show.

 The Prime Minister has promised to respect “the public right to know” and bring in “new rights to access public information where previously it has been withheld.” Last October, he scrapped plans by Tony Blair to make Freedom of Information requests more expensive to deter more frivolous requests. Mr Brown released details of Mr Blair’s contacts with Mr Murdoch only days after becoming Prime Minister last June. But he is remaining coy about his own discussions with him.

Liberal Democrat MP Nick Clegg called Brown a hypocrite and that was that.

In May 2010, The Mirror reported that “the media baron sneaked in by a back door for a private meeting with Prime Minister” David Cameron, and heavily influenced the current government media policy.

Mr Murdoch stands accused of writing the Conservatives’ media policy. The Tories have already agreed to two of his key demands – abolishing the media regulator Ofcom and axing the BBC Trust. All four of Mr Murdoch’s UK newspapers backed Mr Cameron in the general election. When Mr Cameron was the Opposition leader, he accepted £34,000 of free private jet flights to talk with the tycoon on his yacht off Greece.

The Mirror also hit a brick wall when asking what the meetings were about.

This week, both Brown and Cameron publicly condemned the phone-hacking, after it was revealed that The Sun obtained confidential information in 2006 that Brown’s son had cystic fibrosis.

While Brown accused Murdoch of employing criminals to obtain private information about his family, private finances and ordinary people who were at “rock bottom,” Cameron called it “yet another example of an appalling invasion of privacy and the hacking of personal data.”

Cameron took a step further in opposing the BSkyB bid, striking another blow at Murdoch’s News Corp, which has already lost $7 billion, or £4.4 billion in market value in the past four days.

Bernstein doesn’t think Murdoch will ever end up in jail, even though feigning ignorance of his staff’s illegal practices has not proven to be a very convincing defence.

Could Murdoch eventually be criminally charged? He has always surrounded himself with trusted subordinates and family members, so perhaps it is unlikely. Though Murdoch has strenuously denied any knowledge at all of the hacking and bribery, it’s hard to believe that his top deputies at the paper didn’t think they had a green light from him to use such untraditional reportorial methods.

Bringing Prince Charles back

Prince Charles

Prince Charles’ private meetings with government ministers, and the fact that we cannot know what was said in them ,has become a small controversy buried under a scandal, namely the one about News of the World and its various mischiefs.

What seemed to be the beginning of an interesting debate was inevitably cut short. A small recap may be useful to bring the story back to the fore and continue with the discussion.

A week ago, the Mail on Sunday reported that prince Charles held at least 9 private meetings with senior ministers and also mentioned his notorious “black spider” letters to ministers – referring to the Prince’s lengthy notes on policy, inked in his spider-like handwriting.

This came after Alastair Campbell, who was former Prime Minister Tony Blair’s communications chief, revealed that Blair was frustrated with the Prince’s interventions on policy issues.

The monarchy no longer has any political power in the UK and Prince Charles’ constitutional role is to remain largely a symbolic head. Private meetings with ministers could be seen as pushing boundaries. But more important is that we can’t know for sure if Charles was, in fact, exceeding his position because the Royal Family’s communications with ministers became exempt under the Freedom of Information Act during the final days of the previous government.

In response, campaigners have called for a review to the changes in the law.

Maurice Frankel of the Campaign for Freedom of Information told The Independent that the revelations of regular private meetings with ministers showed that the changes in the FOI Act were not sustainable and suggested the Prince could use the exemption to conceal his political involvement.

“There is a legitimate case to made, for example, in protecting discussions between the Queen and the Prime Minister. But this type of roving lobbying by Prince Charles is a different matter. There is a question as to whether any political role he might be taking is being concealed by the use of this exemption. It should be made subject to review and, in some circumstances, the release of that information is justified.”

When the changes were first announced, Ben Chu, commented in The Independent that though the royals are no longer political actors, their symbolic position representing the U.K. must also be kept in check. Their exemption from the FOI Act also eliminates the mechanism meant to scrutinise their actions.

 “The Royal Family must be above politics and provide a focal point for respect from all Britons. But that does not undermine the argument for scrutiny and oversight of royal affairs. The monarchy needs to be seen as a dignified figurehead. Financial profligacy or improper behaviour by members of the Royal Family would bring the monarchy into disrepute and jeopardise its constitutional role. Statutory transparency (in the form of the Freedom of Information Act) would help to keep royals on the straight and narrow.”

The changes to the FOI Act came after Prince Charles was accused of intervening to halt a £3 billion redevelopment of the Chelsea Barracks by the Qatari royal family.

At the time, the Royal Family was exempt from direct requests for information under the FOI Act, but public bodies could be asked to disclose the information they held about them. The requests were subject to a public interest test.

The changes that took place in January rendered the Royal Family an absolute exemption from the release of details about his contacts with ministers and civil servants.

Here is what the Constitution Unit wrote about them in March.

“The absolute exception covers all communications of the monarch, her heir, and the second in line to the throne, while the correspondence of the rest of the Royal Household with public bodies remains subject to a qualified exemption. So… requests about finances would result in exactly the same outcome now as before the amendments. Similarly, if people are requesting records of Prince Andrew’s activities as the UK’s trade envoy, then the decision to release, at least under section 37, will be taken in light of a qualified exemption. The real change will be felt with respect to the third and more controversial example: letters allegedly sent between ministers and Prince Charles lobbying on political matters are now inaccessible to FOI requesters.“

With all this talk about Freedom of Information, Martin Rosenbaum, the BBC’s FOI specialist added another element to the mix: the FOI law may be only part of the issue here.

Because Prince Charles’ policy concerns has more to do with the environment than with any other policy issue, much of the information we want to know about is not covered by the FOI law at all, but rather the Environmental Information Regulations (EIR).

The EIR do not have any specific provisions protecting the Royal Family, Rosenbaum said, so requesters can fire away. But there are exemptions.

“The letters written by Charles himself could be withheld on the basis that it would harm his interests, as someone not obliged to supply information to the public authority. And the Information Commissioner has ruled that replies to him from the government can be kept secret, because by revealing his views they would thus reveal his personal information in breach of the Data Protection Act.”

In all matters not related to the environment, however, the FOI exemption for the royals should be looked at. After all, the Prince Charles may be only a symbolic figurehead and a private person in his own right – but not every private individual enjoys such access to Members of Parliament. Isn’t it in the public’s interest to know what is being said to them?

Judicial Appointments in the UK and the US (Part I)

[Posted on behalf of Graham Gee]

The HL Constitution Committee is currently looking at The Judicial Appointments Process. Two questions stood out in the call for evidence: question 9 (on whether there are lessons to be drawn from other jurisdictions) and 21 (on whether there is a case for parliamentary hearings for senior judicial posts). These questions are related insofar as debates in the UK about parliamentary scrutiny of senior judicial appointments tend to be conducted in the shadow of confirmation hearings for the US Supreme Court. Reference is usually made to the US hearings to bolster the case against parliamentary scrutiny of judicial appointments. For the lesson that most commentators in the UK draw is that confirmation hearings have led to the ‘politicization’ of appointments to the US Supreme Court. It was thus pleasing to see Professor Alan Paterson offer a qualified defence of the US experience during his evidence before the Committee last week. Following Professor Paterson’s lead, and drawing on written evidence I’ve submitted to the Committee, I use this post to debunk three ‘myths’ about hearings for the US Supreme Court. (In a later post, I seek to debunk some common myths about the role of judicial elections for appointments to state judiciaries in the US).

Myth 1: Hearings are the primary source of the politicization of appointments

Hearings are a fairly recent innovation. The first was held in 1939, and hearings only became routine from 1952. Yet, political conflict was an occasional feature of the appointment process before 1939. All told, there have been 29 unsuccessful nominations in the Court’s history, 22 of them long before the very first hearing in 1939.

It is true that some nominations have trigged political conflict. But what is often overlooked is that most nominations have not. To illustrate this, consider how the Senate has actually voted in confirmation proceedings. Since 1969, the Senate has confirmed 15 Justices and 2 Chief Justices by a combined vote of 1,336 to 264. During the same period the Senate has rejected 3 nominations by a vote of 164 to 132 (with a further 2 nominations withdrawn before a vote was taken).

It is also true that the level of opposition to nominees seems to have increased in recent years, at least in terms of the numbers of votes cast by the Senate. However a better explanation for recent episodes of political conflict stems from the newly aggressive nomination strategies adopted by some recent Presidents.

It is well known that the Court has assumed an increasingly prominent role over the last sixty years. It is widely accepted that this is one reason why appointments attract considerable attention—and, from time to time, political controversy. Less appreciated is that as the Court’s influence over constitutional matters has risen, so Presidents have become increasingly aware of their limited capacity to influence constitutional affairs. For example, Presidential attempts to spearhead movements to amend the Constitution have failed and as have attempts to strip federal courts of jurisdiction over contentious social issues such as abortion and school prayers. As a result some Presidents have turned to judicial appointments in an attempt to shape the constitutional agenda by selecting a nominee who falls outside the mainstream of constitutional thought and who might, if appointed, seek to upend the settled precedent of the Supreme Court (e.g. Robert Bork).

In broad terms, it might be said that if presented with a nominee whose judicial ideology falls outside the mainstream of constitutional thought, the Senate is likely to reject the nomination. If presented with a more moderate nominee, the Senate is likely to confirm (provided, that is, that the nominee is suitably qualified and has a record of professional integrity). Insofar as the Senate might refuse to confirm a controversial nominee who might seek to upturn settled precedent, the Senate process—including the hearing—can be said to uphold the independence of the Supreme Court. Hence, whereas confirmation processes are often said to imperil the independence of the judiciary, it might be that sometimes the opposite is in fact nearer the truth. For in the US context, the Senate’s involvement provides a means to protect the Supreme Court from presidential attempts to transform the interpretation and construction of the Constitution.

Myth 2: The Questioning of Nominees is Inappropriate

The hearings have been criticised for encouraging the inappropriate questioning of nominees about their judicial ideology. However, there are two main reasons why the Senate is entitled to question nominees about their judicial ideology. First, a nominee’s judicial ideology would influence how they would vote—if confirmed —on the issues that would come before them, and it is thus appropriate for the Senate to question them on it. Those opposed to questioning a nominee about their judicial ideology must argue either that a nominee’s ideology is unlikely to affect how they decide the cases before them or that even if ideology shapes their decisions, a nominee should not be questioned about it by the Senate. Nether argument is attractive when it applies to members of as powerful an institution as the US Supreme Court. Second, it is plain that the President considers a person’s judicial ideology when deciding whether to nominate them to the Supreme Court and so should the Senate, since otherwise there is too much scope for Presidents to mould the Court in their own image. It is true that Senators have been criticised for asking questions that require a nominee to pledge to decide specific types of cases in a certain way. This is a valid criticism. That said, it is worth remembering that most nominees have repeatedly (and quite properly) refused to answer such questions.

Myth 3: The Questioning of Nominees is Futile

The questioning of nominees about their judicial ideology is sometimes said to be futile. Recent nominees have often provided bland and uncontroversial answers. Thus, the Senators’ questions are said to be futile insofar as they fail to elicit any interesting or novel information. But this neglects the fact that the hearing is only one part of the Senate’s scrutiny of a nominee. Prior to the hearing, the Senate’s Judiciary Committee will already have researched the background, credentials and writings of the nominee. It will have received reports about the nominee from the FBI, the Congressional Research Service and the American Bar Association. Face-to-face meetings will already have been held between the nominee and members of the Senate Judiciary Committee.

The questioning is also said to be futile insofar as the Senate can never be certain that a nominee’s judicial ideology will not change. This is certainly true. However, the fact that there can be no certainty on this front does not render the Senate’s questioning futile. The questioning of a nominee has multiple purposes, only one of which is to elicit information. It also provides a forum for the Senate to discuss issues of national importance—and, in this, to signal the Senate’s concerns to the judiciary and public at large (e.g. the discussions of racism in the nominations of Rehnquist, Haynsworth and Carswell). Hearings also provide an opportunity to ask the nominee about any specific charges which emerge during the confirmation process (e.g. Clarence Thomas).

Concluding Thought

None of this should be taken to deny that here are problems with the process for appointments justices of the US Supreme Court. Nor should it be taken to deny that the confirmation hearings can be messy, partisan and aggressive. Rather, this post should be taken as a reminder that hearings are not the primary source of the politicization of the process. Above all, this post cautions us against making two mistakes all too common in UK discussions of the US process. The first mistake is to focus only on the Senate’s role in confirming the nominee, and to neglect the President’s role in selecting nominee in the first place. Both the initial nomination by the President and the subsequent confirmation by the Senate must always be kept in mind. This first mistake is often compounded by a second mistake, namely focusing only on the Senate hearing. The hearing is only one part in the Senate’s scrutiny of the President’s nominee.

 

Patience and Time? FOI and Trust

The issue of FOI and trust looks simple but isn’t. Politicians and others point out, quite rightly, that the more open you are the more you will be trusted.  This is true but it depends entirely on what information you are being open about.

The issue of if, why and how the public trust government is hotly debated. Trust may be based on experiences, emotions, gut instinct or all three. There is a question over whether trust is actually declining in the developed world. Many believe it has been falling since the mid-1960s blaming politicians, television, a more complex society, a lack of deference, the Vietnam War, the Beatles and Lyndon Johnson. Others have pointed out that, from what little we know, government has only ever been trusted by a few of the people a little of the time. Politics, they say, is not an occupation for the trustworthy.

So where does FOI fit? It is hoped that the more open you are the more the public will trust you. This is because they will understand more about what you do and also because, quite simply, you will be less secretive.

Our projects have all looked into this. Our central government project concluded that FOI did not increase trust. This was because most people find out about FOI through stories which rightly (see MPs’ expenses said journalists) or wrongly (just open a newspaper said politicians) are about government failure. But it isn’t fair to blame FOI. This never ending battle is much bigger than FOI, which just gets caught up in it. The government spins, the media attacks. The more interesting point is that both requesters and officials felt their own requests were in some senses ‘motivated by mistrust’. But again this isn’t FOI’s fault.

Our local project has found different results. Local government is, generally more trusted than central government anyway. Here it can be very variable. In some areas the local press use FOI often, in others never. It is also used to find out about lots of non-local government issues that don’t necessarily reflect on the council such as violence in public libraries (more than you think in answer to your unspoken question) and dirty restaurants. Requesters are also divided-some say it has increased their trust, others say it has not. Local politicians have pointed out that they can do things that central government can’t to build ‘local trust’. They can improve their services (taking bins out, repairing roads) and try to be more ‘visible’ in the community. Opening fetes and judging vegetables may have more effect than any FOI.

This last point highlights the difficulty. How you measure trust depends, as ever, on what you ask and how you ask it. Some recent studies about E-government point to the fact that people trust more if they see their actions make a difference. It also may dependent on what attitudes and ideas they bring with them (here some members of the public were disappointed by the messiness of how politics really worked).

There is probably no definitive way of answering this. The real answer to ‘does FOI improve trust?’ is ‘it depends’.  It is unrealistic and naïve to hope FOI on its own, caught between a spinning government and a hostile press, could improve things. It may also be early days. For openness to make a difference it could take time, a whole lot of precious time, patience and time, the two things politicians don’t have.

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