Monthly Archives: April 2012

Abolition of the Administrative Justice and Tribunals Council

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Written evidence to the Public Administration Select Committee, Dr Jeff King.

1. The AJTC is crucial for ensuring the distinctiveness of tribunals from the common law judicial process

Tribunal judges use a non-adversarial, or managerial, approach that is meant to assist the parties with their submissions. Parties are frequently unrepresented and research has shown this has a large impact on success rates. The more interventionist judging model is crucial for meeting, at least half-way, the mounting calls for state-funded legal representation before the tribunals. The more tribunals are viewed as courts, the more unsustainable the restricted access to Legal Aid will become.

The administrative justice landscape was explicitly meant, in the new system, to move beyond adjudication, for reasons of economy and justice. This orientation is distinctive and requires specialist review and guidance.

2. The MoJ will not presently be able to perform the same function

This distinctive culture is likely to be overlooked at the MoJ without the benefit of the AJTC expertise. In our experience, understanding the administrative justice field requires being conversant in a body of empirical literature and/or field experience in public administration.

Presently, the AJTC brings together people with expertise and extensive experience in areas that include experience in law and social science, the civil service, the Parliamentary Commissioner for Administration, advice sector and elsewhere. It is doubtful the MoJ could replace this expertise. The Council reviews the rules and operations of the tribunals, inquiries and other areas of the “administrative justice system,” something intentionally broader than the tribunals service. The AJTC regularly reviews legislation and regulations, and there is a statutory obligation for Ministers to consult the Council before adopting new rules for listed tribunals (TCE Act 2007, Schedule 7, Part III). Furthermore, the AJTC has special knowledge of how administrative justice connects with devolution arrangements. Again, there is little evidence that the MoJ has the capacity to absorb all these functions without the benefit of AJTC guidance.

3. The AJTC provides excellent value for money, and it plays a role in reducing the costs of dispute resolution

Even if the MoJ could ultimately take on such a role, it would not represent any greater value for money. The AJTC budget is approximately £1 million a year, over £400,000 of which is paid to MoJ and Scottish Government staff seconded for that purpose. That is excellent value for money for the oversight of a system in use by probably a majority of the population at some point in their lives.

As noted above, a key theme in the history of tribunal adjudication and in the recent reforms was keeping costs low. The AJTC facilitates this by exploring cheaper, less formal dispute resolution options that involve a lower likelihood of appeals than would be the case in a more judicialised model. MoJ staff, lacking the range of expertise of AJTC staff, would not be able to do this.

Read the full submission on the Parliament website

Being Open About Data

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The Finnish Institute in London has recently completed a five-month research project on the British open data policies. The report looks at how the open data ecosystem has emerged in the UK and what lessons can be drawn from the British experiences. The year 2012 will be a big year for open data in Finland, and this report also partly aims at further facilitating the development of open knowledge in Finland.
In short, the key arguments that the research makes can be listed as follows:

  • The key to securing the benefits of open data is the quality of user engagement
  • Open data and its objectives should be addressed as a part of the freedom-of-information continuum
  • The decision to emphasise the release of expenditure data was not ideal: governments do not know best what kind of data people want to have and should aim at releasing it all
  • Leadership, trust and IT knowledge are crucial, not only for political leadership but within organisations too
  • The social and democratic impacts of open data are still unclear and in future there is a need for sector-specific research

After a series of interviews and analysis of government documents it became evident that open data is not as apolitical an initiative as many may assume it to be. There is a long history of politicised debate on transparency and public spending behind the initiative. Open data is argued to be a good example of a targeted transparency policy, where proactive release of information is hoped to help in achieving certain political goals. The decision about which information should be released first is after all a political process.

In addition, we must realise the difference between transparency and democracy-oriented goals that are usually associated with the freedom-of-information movement and the technology and innovation-oriented goals of the open-data movement. In the end of the day, the overall value of transparency is not something that should be measured primarily in financial profits.

After a survey of all English local councils and a series of interviews, it seems that public sector data providers are supportive towards the idea of data transparency itself, but very cautious towards the means of achieving it, especially the initiative of releasing the data of expenditure over £500 in local government. Many of the respondents feel that the data released lack information value and due to that the general interest towards data has been minimal.

Open data is applied in various ways with lots of small-scale success stories available, mostly in the form of mobile-phone or web applications. These services make everyday life of citizens a tiny bit easier, and when accumulated they may result in significant economic benefits. However, the open-data community has also been vocal about the potential positive impacts on democracy. These impacts are significantly harder to identify and need much more research in order to produce comprehensive and reliable results.

The report argues that the applicability of data is effectively linked to the initial objectives of open data. The value of open data is built on an uncertain variable and on how people use it – it is difficult to form a single “one size fits all” model, to measure the value of applicability. Data has value only in its use, and at this time it seems that the best way to facilitate its use is to further engage those organised civil society groups who have resources and will to use data with real public-service interests in mind.

Economic impacts can be measured relatively easily with the current methods, but the possible changes in our society due to digitisation of the core infrastructures and the abilities of citizens to manage their lives within it pose challenges for the legitimate and democratic transparency regime. In the future, it is more important to focus on the normative side of open data and on its potential impacts on democracy. There is a risk of creating a hollow mantra of open data improving the level of democracy without any evidence provided. However, the potential for great improvement in democratic accountability is there.

Truly democratic transparency requires more than just the release of open data. It needs citizens who can see that their interests are treated equally in society. If it is hoped that open data will provide the catalyst for this, then the thresholds for access, use and interpretation of data need to be as low as possible. In order to achieve this, the data producers must possess a certain level of ICT knowledge to implement the system so that it is both simple enough to use and sophisticated enough to be able to manage information flow comprehensively – knowledge which is often lacking. This should not be an excuse not to release data, however, but a wake-up call for both data providers and the open-data community alike.

The final report “Being Open About Data – analysis of the UK open data policies and applicability of data” can be read and downloaded here.

Antti Halonen is a PhD candidate at University of Helsinki and a Fellow at the Finnish Institute in London. He is the author of “Being Open About Data – Analysis of the UK open data policies and applicability of open data”.

Cos I’m the Taxman: Opening Up on Tax

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David Cameron, following on from George Osbourne, has spoken of how he would be happy to publish his tax returns. This links to criticism that many of the ‘Cabinet of Millionaires’ benefit from recent tax changes, the recent ‘Cash for Access’ controversy and, not entirely unrelated, the recent row over Ken Livingstone and Boris Johnson’s incomes (you can see Boris’s returns here and Ken’s here)

Not everyone is convinced. Here Liddell-Grainger, the Conservative chairman of the All Party Group on Tax, said publication would be unfair and could trigger “jealousy.”

If you put up people’s tax returns just willy-nilly across the United Kingdom, then you get the envious factor coming in. You’ll get the jealousy. People like myself will be dealing with people whose names have been put on internet sites, Twitter and Facebook.

I don’t think that’s fair on people. They do pay tax. People don’t know what their neighbours are doing these days. Why drag them through the mire if they don’t need to be?

Such publication is common in Scandinavia (see details of Norway here and some analysis by Channel 4.) According to Channel 4, the publication of the details of all tax returns in Norway, where the law on publication was enacted, reversed, and then acted again, led to mixed results as it

Provoked an outcry from privacy campaigners, who claimed it had sparked a “frenzy of snooping”, as people rushed to find out exactly how much their neighbours and co-workers made. Newspapers and media outlets swiftly compiled their own “Top 10” lists, comparing the earning power of celebrity couples, and revealing details of top-earning footballers, actors, and business tycoons.

With details on everyone from reindeer herders to top lawyers freely available, the list seemed to symbolise the best of Nordic openness. As Jan Omdahl, from the tabloid Dagbladet, wrote at the time: “Isn’t this how a social democracy ought to work, with openness, transparency and social equality as ideals?” However a poll carried out in 2007 found most of his countrymen disagreed: just 32% thought the list should be published, while 46% were opposed.

In 2005 in Italy, in a supreme act of ‘last day in the office’ revenge, an outgoing Italian Finance Minister published tax details of the rich and famous.

Publication in Italy also caused quite a stir with allegations that it would be used by organised crime to kidnap the rich and hold them to ransom. Before you ask, Silvio Berlusconi earned £21.9m in 2005 and Giorgio Armani, who earned the most, earned £35m.

The exact point of publishing is not clear, apart from broadly being an ‘open’ thing to do. It is a great example of  the difficult, and unresolvable, balance between openness and privacy. It remains a problematic area in Norway and continues to be contentious. Perhaps this quote sums up the issue, with tax caught between the force of transparency, the voyeurism of celebrity and the irresistible pull of pure nosiness:

What some see as an honest commitment to fairness is for others, an invasion of personal privacy, and a licence for what the Norwegian tabloid Dagbladet described as “tax porno”.

What are the constitutional impacts of George Galloway’s by-election win in Bradford West?

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George Galloway’s victory in the Bradford West by-election on 29March 2012 was genuinely sensational and needed no hype – the raw numbers spoke for themselves. Having been a 33/1 outsider at the start of the campaign, bookmakers Ladbrokes alone paid out more than £100,000 as Galloway’s Respect party won 55% of the vote and beat the Labour party candidate Imran Hussain by over 10,000 votes. But what are the constitutional implications of his victory and does his victory represent any more than a freak occurrence achieved by a one off political maverick?

Galloway’s appeal among Muslim and disenchanted left leaning voters has been well documented, and much of the narrative has focused on the idea that his victory can be ascribed as a protest vote and rejection of mainstream politics – only 4 out of 10 voters in Bradford West voted for one of the three mainstream parties. But I have identified 4 structural factors that require more consideration with regards to why Respect won such a stunning victory.Image

1. Postal Voting

Prior to the by-election, George Galloway, Dawud Islam of the Green Party and the Liberal Democrat candidate Jeanette Sunderland had spoken out against the widespread use of postal ballots in the constituency at a hustings[1], with Galloway writing to chief returning officer Tony Reeves to ask him what measures were in place to tell voters of their rights[2]. He claimed that 10,000 people have registered for postal votes in the constituency and that he was “vehemently opposed to the postal voting system on demand” because it was “wide open to fraud.” The Conservative party evidently agreed, publishing a booklet entitled ‘Don’t Let Anyone Steal Your Vote’[3]  in the hope of preventing postal fraud in the constituency, with neighbouring constituency MP Kris Hopkins saying the move was prompted by a feeling that Bradford’s politics had been blighted by a lack of transparency in the past, because of scandals such as when two ex-councillors were jailed for fraudulent behaviour relating to the 2005 election[4].

The implication from all parties, amplified by the silence of the Labour party, is that the concept of ‘Biraderi’ or ‘Bradree’[5] – a Punjabi concept meaning ‘brotherhood’ – influences the way that people vote by encouraging large sections of communities to vote as blocks, controlled perhaps by a few key community leaders. On top of this, there are accusations that ‘Bradree’ has corrupted the internal democratic mechanisms of the Labour Party who have long taken the constituency electorate for granted, by creating a hierarchical candidate selection process controlled by a privileged few individuals who originate from the Mirpur area of Pakistan. David Goodhart of Prospect magazine suggests that ‘it is one of the open secrets of Labour politics that in large parts of the Midlands and the North it has acquiesced to the “wholesale” vote gathering system offered by some minority leaders.’[6] In the event of the election, Lord Tebbit described the number of postal ballots cast in the constituency as ‘suspiciously high’[7],

The irony of this though is despite Galloway’s previous protestations regarding the number of postal votes registered in the constituency and his long term objection to unnecessary postal voting dating back to the 2005 General Election when he contested Bethnal Green & Bow[8], the scale of victory suggests that Respect must have done well in postal balloting as well, which  may be attributed to the ‘Bradree’ effect, or may be attributed to a rejection of ‘Bradree’ by young Muslim voters as discussed below. In either case more work needs to be done to reinforce the legitimacy of the postal vote as a means of democratic participation to quell doubts about elections that have abnormally high number of postal ballots.

2. Third party campaigning

The Bradford West by-election was notable for the influence of third party groups in the course of the campaign. A letter, signed in Urdu and attributed to George Galloway (but without his official logo or the name of an agent, as required by electoral law) contained implications that Labour candidate Imran Hussain is not a true Muslim[9] and unfounded accusations that he drinks alcohol, forbidden in Islamic culture, an unfounded slanderous allegation which was repeated by the Muslim Public Affairs Committee (MPAC)[10], who urged voters in Bradford to vote Respect over Labour. One of Galloway’s supporting speakers at a rally on the 25th of March was Abjol Mihah, a leading activist in Respect and in the Islamic Forum of Europe (IFE), an extremist group who Galloway has previous links with that led to him being exiled from the Labour Party in 2003.[11]

3. Social Media

This by-election was notable not only for the personal popularity and star appeal of George Galloway the candidate, but for his mobilisation of his vote through his extensive use of social media. Labour MP Michael Dugher described Bradford West as ‘possibly the first by-election fought and even won on social media” and lamented the fact that George Galloway had “85,000 followers on Facebook while our candidate was knocking on doors the old-fashioned way”.[12] A Labour activist in Bradford West said that on Twitter there were 10 pro-Galloway tweets by young Asian voters for every pro-Labour one, and said that he had “never witnessed anything like this in British politics. The communication between activists on the Galloway side was phenomenal.”[13] Politicians are no longer as naïve about the power of Social Media to affect politics but evidently the cohesiveness of the Respect campaign took even the Labour party machine by storm.

With the popularity of the three mainstream party leaders hitting an all-time low[14], there is a growing phenomenon of disillusionment with mainstream politics, a group Lord Tebbit calls the ‘None of the abovers’[15] who don’t feel that the three main parties are speaking to their needs. This may be capitalised on by nationalist, minor parties and independent candidates in future elections. The use of social media by Respect in Bradford West to engage voters on the ground in this way and energise a disaffected populace in a seat previously thought of as ‘safe’ provides an interesting template for how future outsider candidates could conduct their campaigns.

4. Young and First Time Voters

George Galloway and Respect campaigned hard amongst young people and students, who all voted in large numbers in Bradford West[16]. On the University campuses, he is celebrated for his strong anti-war stance and his appearances at Universities were all well attended as he struck the right note with the young and disaffected.[17] By contrast, when the Guardian followed the Labour candidate Imran Hussain the reaction he got at University campuses compared to the one Galloway received ‘couldn’t be greater’[18], and after the result, Shadow Home Secretary Yvette Cooper said that “Labour wasn’t connecting enough with young voters in Bradford’s Asian community.”[19]

Targeting first time voters was another tactic employed by the Respect campaign – the Guardian reported that they spoke to ‘dozens’ of men who said they had voted for the first time that day[20], emphasising the disillusionment with mainstream politics that Respect were able to exploit. Mohammed Shafiq, chief executive of the Ramadan Foundation, told Channel Four News that the election signified a rejection of “Bradree” by the young voters of Bradford West stating “What this win shows is that the time when unelected elders in the community say, ‘we’re all voting for Labour,’ who would dictate to young Muslims how to vote, is over,”[21]. Evidently there are lessons to be learned from the Respect campaign in Bradford West about how to engage with both young and disillusioned voters in order to promote a more involved, actively engaged democratic society.

Conclusion

George Galloway and Respect’s victory in the 2012 Bradford West by-election provides us with some interesting insights into several facets of our democratic system that we can learn from. The postal voting system needs to be examined in greater depth to check for electoral irregularities and more work should be done to ensure greater transparency of the rules surrounding electoral campaigning by third parties in order to ensure that slander and mistruths aren’t tacitly tolerated by any of the candidates taking part in an election. The bigger parties in particular also need to examine how they can better improve their social media presence to engage younger and disaffected voters in order to maximise the number of people actively taking part in the democratic process, a strategy employed by George Galloway and Respect to great effect in Bradford West.

[1] Just West Yorkshire, Bradford West By Elections Hustings 2012: Post By Elections Analysis (22 March 2012), Available at www.justwestyorkshire.info/wp-content/uploads/2011/10/BRADFORD-WEST-BY-ELECTIONS-HUSTINGS-2012-POST-BY-ELECTIONS-ANALYSIS.pdf

[2] G Galloway, ‘Fears over ‘large scale fraud’ with postal voting’ Vote George Galloway (15 March 2012)  www.votegeorgegalloway.com/2012/03/fears-over-large-scale-fraud-with.html

[3] K Griffiths, ‘Conservatives launch booklet to help stop postal vote fraud’ Telegraph & Argus (17 March 2012), Available at www.thetelegraphandargus.co.uk/news/9596811.Conservatives_launch_booklet_to_help_stop_postal_vote_fraud/

[4] Yorkshire Post, ‘Two Ex Councillors Jailed for Bradford Postal Votes Fraud’ Yorkshire Post (6 September 2010), Available at www.yorkshirepost.co.uk/news/two-ex-councillors-jailed-for-bradford-postal-votes-fraud-1-2588030

[5] H Pidd, ‘Bradford West by-election: George Galloway shakes up Labour relations’ Guardian (27 March 2012), Available at www.guardian.co.uk/politics/2012/mar/27/george-galloway-bradford-west-byelection

[6] D Goodhart, ‘Making Sense of Bradford West’ Prospect Magazine (4 April 2012), Available at http://www.prospectmagazine.co.uk/2012/04/george-galloway-bradford-west-bloc-voting-labour-ethnic-minority/

[7] N Tebbit, ‘Why the major parties can’t just blame George Galloway for their shocking performances in Bradford’ Telegraph (1 April 2012), Available at blogs.telegraph.co.uk/news/normantebbit/100148522/why-the-major-parties-cant-just-blame-george-galloway-for-their-shocking-performances-in-bradford/

[8] M Tempest and agencies, ‘Galloway accuses Labour of Electoral Fraud’ Guardian (8 June 2005), Available at www.guardian.co.uk/politics/2005/jun/08/election2005.localgovernment

[9] A Gilligan, ‘A runaway victory for George Galloway – and all praise to Allah’ Telegraph (30 March 2012) Available at www.telegraph.co.uk/news/politics/9176195/A-runaway-victory-for-George-Galloway-and-all-praise-to-Allah.html

[10] MPAC, ‘Bottoms Up Imran Hussain’ MPACUK.org (27 March 2012), Available at www.mpacuk.org/story/260312/bottoms-imran-hussain.html

[11] A Gilligan, ‘A runaway victory for George Galloway – and all praise to Allah’ Telegraph (30 March 2012) Available at www.telegraph.co.uk/news/politics/9176195/A-runaway-victory-for-George-Galloway-and-all-praise-to-Allah.html

[12] BBC News, ‘Labour ‘failed to connect with Asians in Bradford’’ BBC News (1 April 2012), Available at www.bbc.co.uk/news/uk-politics-17576752

[13] MA Sieghart, ‘Labour’s wrong if it thinks it’s time for a shift to the left’ Independent (02 April 2012), Available at www.independent.co.uk/opinion/commentators/mary-ann-sieghart/mary-ann-sieghart-labours-wrong-if-it-thinks-its-time-for-a-shift-to-the-left-7606806.html

[14] J Pickard, ‘Mainstream party leaders’ ratings plummet’ Financial Times, (1 April 2012) Available at www.ft.com/cms/s/0/e967718a-7c12-11e1-9100-00144feab49a.html#axzz1qtYmutry

[15] N Tebbit, ‘Why the major parties can’t just blame George Galloway for their shocking performances in Bradford’ Telegraph (1 April 2012), Available at blogs.telegraph.co.uk/news/normantebbit/100148522/why-the-major-parties-cant-just-blame-george-galloway-for-their-shocking-performances-in-bradford/

[16] T Clark, ‘George Galloway’s by-election win is a lesson in the power of the minority vote’ Guardian (30 March 2012), Available at www.guardian.co.uk/commentisfree/2012/mar/30/george-galloway-bradford-minority-vote?newsfeed=true

[17] H Pidd, ‘Bradford West by-election: George Galloway shakes up Labour relations’ Guardian (27 March 2012), Available at www.guardian.co.uk/politics/2012/mar/27/george-galloway-bradford-west-byelection

[18] H Pidd, ‘George Galloway hails ‘Bradford spring’ as Labour licks its wounds’ Guardian (30 March 2012), Available at www.guardian.co.uk/politics/2012/mar/30/george-galloway-bradford-spring-labour?newsfeed=true

[19] BBC News, ‘Labour ‘failed to connect with Asians in Bradford’’ BBC News (1 April 2012), Available at www.bbc.co.uk/news/uk-politics-17576752

[20] H Pidd, ‘George Galloway hails ‘Bradford spring’ as Labour licks its wounds’ Guardian (30 March 2012), Available at www.guardian.co.uk/politics/2012/mar/30/george-galloway-bradford-spring-labour?newsfeed=true

[21] Channel Four News, ‘‘Young Muslims defied elders to vote for Galloway’’ Channel Four News, (30 March 2012) Available at www.channel4.com/news/young-muslims-defied-elders-to-vote-in-galloway

Risk of a Chill?

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ImageThe Tribunal has now released details of its final decision over NHS Risk Registers, a risk assessment of controversial reforms to the NHS. The concerns centred on the potential damage release would have and whether it would have a chilling effect in reducing records kept, or in other ways restrict policy-making (see here for our views).

It has a classic defence of the chilling effect from Former Cabinet Secretary Gus O’Donnell on p.15:

‘Lord O’Donnell was very concerned that if there was routine disclosure of risk registers at the stage they were requested in this case that ultimately they would lose their effectiveness as a vital management tool for government and this would have a profound and damaging effect on the public interest in sound policy-making for the following principal reasons:

  • frankness and candour which are essential to the usefulness of risk registers would be fundamentally damaged;
  • the likelihood of the risks materialising would increase;
  • it would distract policy makers from their task at a crucial point in the process of formulation and development; and
  • there was a danger that disclosure of the risks in the form that they are set out in the risk registers could harm rather than assist public debate.’

The tribunal seemed less sure

We note that independent research carried out by the Constitution Unit at University College London has concluded that there is little evidence of FOIA leading to a chilling effect. Also in a previous case, OGC v IC EA/2006/2068 & 80 (“OGC”), where the Information Tribunal ordered the disclosure of Gateway Reviews apparently there has been no evidence of a chilling effect since their release.

It asked the opinion of Jon Healey, the (now opposition) MP making the FOI request , who was formerly a Minister

Mr Healey was the Minister responsible for the Office of Government Commerce at the time and said that there was no evidence that a chilling effect developed as a result of the release of the reviews even after he moved to The Treasury.

It ends with two statements that sum up the difficulties with the chilling effect

Lord O’Donnell said it was very difficult to prove one way or the other whether a chilling effect would take place.

Mr Healey expressed the view, that in his experience as a Minister, that the quality of submissions on policy had tended to improve since the above disclosures.

A further difficulty is the complications of the policy process. NHS reform has proved particularly complicated and controversial, as the Tribunal points out

From the evidence it is clear that the NHS reforms were introduced in an exceptional way. There was no indication prior to the White Paper that such wide-ranging reforms were being considered. The White Paper was published without prior consultation. It was published within a very short period after the Coalition Government came into power. It was unexpected. Consultation took place afterwards over what appears to us a very short period considering the extent of the proposed reforms. The consultation hardly changed policy but dealt largely with implementation. Even more significantly the Government decided to press ahead with some of the policies even before laying a Bill before Parliament. The whole process had to be paused because of the general alarm at what was happening.

The problem is that many FOI requests that touch on the policy process will be for matters that are already controversial or sensitive (the war In Iraq, devolution etc)-will there ever be case that is not in some way special?