What the RHI Inquiry tells us about the ‘chilling effect’ of freedom of information laws

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The report into the Renewable Heat Incentive scheme provided an insight into the functioning of government in Northern Ireland. Ben Worthy examines the extent to which it revealed that freedom of information laws have produced a ‘chilling effect’ and affected the completeness of the public record when it comes to ministerial discussions and decisions.

One of the biggest fears for transparency campaigners is that Freedom of Information (FOI) laws could create an incentive to hide instead of open up. Could the presence of such laws lead to officials and politicians trying to hide from them, or even fight them? The particular concern is that laws designed to increase transparency might instead empty out the official record, so that meetings go un-minuted, conversations go unrecorded and that important audit trails simply disappear. Even where it goes on, this so-called ‘chilling effect’ is notoriously hard to prove. 

This was one of the many concerns raised as a consequence of scrutiny of the Renewable Heat Incentive (RHI) scheme in Northern Ireland. The alleged mishandling of the scheme partially led to the collapse of the Northern Ireland Executive in January 2017 and prompted an official inquiry, which reported last month. Back in March 2018, giving evidence to the RHI Inquiry, the Head of Northern Ireland’s Civil Service, David Sterling, admitted that ‘the practice of taking minutes had “lapsed” after devolution’ and mentioned FOI specifically as a factor.

The RHI Inquiry’s report itself now offers some more interesting detail as to what ‘chilling effect’ happened and, more importantly, why. Chapter 52 of the report looks at this, with the most important reflections coming from David Sterling, Head of the Civil Service. He, and others, make it clear repeatedly that minutes and records were always kept in accordance with the official guidance. Or, at least, almost always:

‘Now, on occasions, there would be discussions between Minister and officials that may not be minuted, but I think my view would always be that the ultimate decision needs to be reflected in a submission so there’s a clear record of what considerations the Minister took and what the final decision was and why it was taken.’

Sterling made it clear that ‘during the long period of direct rule in Northern Ireland, there would have been pretty firm adherence to the Guidance’. However, this then changed. He ‘explained that an unwritten custom and practice had developed over recent years’ where some gaps appeared and practices slipped. This change seems to be quite recent, and is dated to around 2008, when power came back to Northern Ireland following a period of direct rule from London. 

According to Sterling, there’s a few arguments as to why this slippage over records happened. It’s worth unravelling them. Here’s argument one, the ‘safe space’: 

‘…but Ministers like to have space, safe space, where they can consider difficult things, think the unthinkable and not necessarily have it all recorded. A feature of the devolved Administration here has been that the two main parties have been sensitive to criticism, and I think that it’s in that context that, as a Senior Civil Service, we got into the habit of not recording all meetings on the basis that it is safer sometimes not to have a record that, for example, might be released under freedom of information which shows that things that might have been considered unpopular were being considered.’

So this was about ‘thinking the unthinkable’ and the political sensitivity of not being seen, known or proved to have said anything too controversial. This is rather a classic one, with the phrase ‘safe space’ dating back at least to discussion over Official Secrets Act reform in the 1970s. Here, interestingly, the chilling is directly linked to the possibility of an FOI request.

Argument two, what I’ll call the ‘waste of time’ doctrine, then drifts away from FOI towards a point about processes, and is really about how decision-making actually works. When ‘questioned further about his reference to the Freedom of Information Act, and asked whether there was a conscious decision to reduce minuting and ‘dumb down’ the routine practice, Sterling said: 

‘The absence of routine minuting of all meetings with Minister, that wasn’t a conscious dumbing-down at all. I think it’s largely a reflection of just the changed circumstances in which we were working. So, for example, again I drew a distinction with, or the contrast with, working in direct rule, where you wouldn’t have seen your Minister very often. Now, you were in much more regular daily contact with Minister and adviser, and I would’ve encouraged openness between Minister, adviser and officials….My view was that you get more efficient policy development if policy teams are talking to the special adviser and, indeed, the Minister, at a very early stage in the policy development process. You know, there’s no greater waste of time than a policy team going away, dreaming up some great policy idea, sending in a 20-page submission, and the Minister says, “This is nonsense. I can’t run with this.” So, we did have a much more fluid involvement and engagement between Minister and adviser, and I think that’s a good thing. But I think one of the consequences of that is it becomes more difficult to apply the rigid disciplines of minuting every meeting.’

Argument three, the ‘quick word’, then drifts a little bit further still, to being a point about informality and relationships. Here ‘Mr Sterling said that the pace of day-to-day life had increased exponentially since 2008… civil servant might have been called up at short notice for a “quick word” or the civil servant might have asked the Private Secretary for a “quick word” with the Minister’. 

So what we have is a series of bundled up arguments. Working backwards, there’s the reasonably innocent idea that it’s hard to decide when a meeting is a meeting or when it’s a quick word in the corridor. There’s another one, reasonable-ish, that time shouldn’t be wasted assembling big outlandish ideas that won’t fly. These are a bit of a problem because they muddy the waters: ‘the Inquiry pointed out that ‘with an unwritten custom… it might become very difficult for an individual to decide where the boundary might lie as to when a minute should be recorded and when not’. 

But hidden among these understandable points, in argument one, is the claim that politicians don’t record what’s discussed because they might be unpopular or a problem for them politically. This is a very serious democratic issue. It undermines the spirit and point of FOI, and the right of access that it creates. If there’s no record then there’s no ‘information’ to disclose, no accountability and no proof. 

The report also asks how widespread this all is. Mr Sterling ‘emphasised that it was important not to draw conclusions as to the general practice from this particular scheme’. However, the use of words like ‘unwritten custom and practice’, ‘developed’ and ‘habit’ indicate this is something that has spread, or is at least spreading. The fact that no one queried the non-existence of minutes could be another sign that this was common. The report itself concluded that ‘there can be little doubt but that such approaches became more frequent after devolution’ with at least two key meetings ‘of 14 June 2011, as well as the conversation relating to the Ofgem warning with regard to cost controls in June 2012’ taking place. It flags up at least one more such problematic area, the ‘Bioscience and Technology Institute project’ (considered further in chapter 55).

Stepping back, what we see in Belfast is part of a more worrying trend. Examples have been springing up of resistance and avoidance from Edinburgh to Washington. It seems there’s a group of officials on Pennsylvania Avenue who are sellotaping President Trump’s shredded documents back together. In 2018, the Scottish Information Commissioner concluded that the Scottish executive had engaged in ‘deliberate delaying tactics [with] requests being blocked or refused for tenuous reasons’. In 2012 Michael Gove used a private email address for public business (as urged by his then advisor Dominic Cummings). The conclusion is a depressing one. A chilling seems to be happening, and it is going on at the very top of government. 

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About the author

Ben Worthy is Lecturer in Politics at Birkbeck, University of London. He tweets as @benworthy1.