The 2017 election manifestos and the constitution

Over the past two weeks the political parties have published their manifestos for the snap general election. In this post Chris Caden and Fionnuala Ní Mhuilleoir summarise the constitutional content, covering proposals relating to Brexit, the possibility of a constitutional convention, devolution, House of Lords reform, electoral reform, human rights and freedom of information.

Theresa May’s surprise election announcement left the political parties with the challenge of putting together manifestos in a matter of weeks. The Conservatives, Labour, the Liberal Democrats, the Green Party and Plaid Cymru all published their manifestos in the week beginning 15 May. UKIP followed on 25 May and the SNP on 30 May. With much of the election debate centring on whom the public trust to lead the country through the biggest constitutional upheaval in recent history, Brexit is unsurprisingly covered by all the parties. Attention on other constitutional issues has wavered somewhat as a result, but Labour and the Liberal Democrats both propose a constitutional convention to review aspects of the UK’s constitutional arrangements. The manifestos also lay out a variety of options in areas such as House of Lords reform, devolution, electoral reform and human rights.

Brexit

Negotiating Brexit is a major theme for all parties. The Conservative Brexit commitments include ending membership of the single market and customs union so that a greater distinction between ‘domestic and international affairs in matters of migration, national security and the economy’ can be made. This means negotiating a free trade and customs agreement between the UK and EU member states and securing new trade agreements with other countries. Theresa May’s party aims for a ‘deep and special partnership’ with member states. A successful Brexit deal would entail regaining control of borders, reducing and controlling net migration, but maintaining a ‘frictionless’ Common Travel Area for people, goods and services to pass between Northern Ireland and the Republic of Ireland. The manifesto controversially maintains that ‘no deal’ is better than a bad deal for the UK.

Labour also accepts the referendum result, but rejects ‘no deal’ as a feasible option and envisages something more akin to a ‘soft Brexit’. The party would scrap the Conservatives’ Brexit white paper and replace it with an agreement maintaining the benefits of the single market and customs union; the government’s proposed ‘Great Repeal Bill’ would be replaced with an EU Rights and Protections Bill to ensure no changes to workers’ and consumers’ rights, equality law or environmental protections. The party pledges to immediately guarantee existing rights for all EU nationals in the UK and UK citizens in EU countries, and would also seek to remain part of various research and educational projects such as Horizon 2020, Erasmus and the European Medicines Agency. Additionally, membership of organisations like Eurojust and Europol would be retained. Labour commits to no hard border between Northern Ireland and the Republic of Ireland.

Unlike the Conservatives and Labour, the Liberal Democrats and Greens pledge a second referendum after a Brexit agreement is concluded, which in each case would include an option on the ballot paper of staying in the EU. Preventing a hard Brexit is the first priority for the Lib Dems and as a result the party promises to fight for the continuation of UK membership of the single market and customs union. It also pledges to protect the rights of EU citizens living in the UK and UK citizens abroad, to maintain UK participation in the Erasmus+ programme and other EU-funded schemes, and to retain the European Health Insurance Card. The Greens set out a similar agenda.

The SNP wishes to mitigate what they see as the damage of Brexit with the proposal that Scotland should remain in the single market. The party seeks additional powers for the Scottish government including powers that will be repatriated from Brussels to the UK like agriculture, fisheries, environmental protection and employment law. Plaid Cymru, meanwhile, pledges to make sure ‘every penny’ of European funding for Wales is replaced by the UK government and that the Welsh share of the money promised by the Leave campaign (referring to the £350 million for the NHS) is delivered. It also demands that the UK government seeks the endorsement of each UK devolved legislature before any trade deal can be signed.

UKIP supports leaving the single market, the customs union and the European Court of Justice. The manifesto outlines that no ‘divorce’ bill should be paid to the EU and that Brexit negotiations will be complete by the end of 2019.

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Why pass FOI laws? The politics of freedom of information

Ben Worthy

Why are there now more than 100 freedom of information laws around the world, even though they help opponents and hinder governments? In a new book, published this month by Manchester University Press, Ben Worthy investigates. He concludes that the main reason is that as a symbolic pledge in opposition FOI laws are hard to resist. Once in power these promises are hard to back down from, though experience suggests that proposed laws are often watered down before being enacted. These findings are summarised here.

worthy-bookWhy don’t more politicians react to freedom of information (FOI) like Lyndon Johnson? Why don’t more of them run a mile when presented with the possibility of giving the public a legal right to ask for information from the government? When the idea of an FOI law was suggested to Johnson in 1966 by a fellow Democrat Congressman the US President responded, after some swearing, ‘I thought you were on my side?’ As his Press Secretary explained:

LBJ… hated the very idea of the Freedom of Information Act; hated the thought of journalists rummaging in government closets and opening government files; hated them challenging the official view of reality.

For any budding politician, FOI appears to be the ultimate political boomerang. It helps your opponents. It hinders you.

To make FOI laws even less appealing, there are no votes in them. Merlyn Rees, a Home Secretary who fought hard against an FOI law in the 1970s, once exclaimed that ‘the Guardian can go on for as long as it likes about open government… but I can tell you that in my own constituency of 75,000 electors I would be hard pressed to find many who would be interested’. Only in India, where the Right to information Act was part of an anti-corruption campaign, have FOI laws responded to broad public enthusiasm. So how is it that there are now more than 100 FOI laws around the world?

The question is really why would a politician support FOI in the first place? Sometimes they believe in openness and sometimes leaders who don’t believe in it have it forced upon them, as Theresa May has discovered over Brexit. Other times it is for pure advantage, because a scandal makes it hard to avoid (as in Ireland), so a politician can ensure that they get information in the future or because it has promised FOI as part of a coalition deal (as in India). It is also about context. Often FOI laws are pushed through when there is lots of other constitutional or legal change going on. Across the world, as Rick Snell points out, organised groups and enthusiastic individuals, often ‘outsiders’, push for an FOI law when other key people are distracted or looking the other way.

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Disruptive or beneficial? Freedom of information in the UK

Ben Worthyrobert_hazell (1)

On 1 March, to some surprise, the Burns Commission concluded that the Freedom of Information Act was ‘generally working well’. Ben Worthy and Robert Hazell explain how the Commission came to this unexpected result and, drawing on the results three major research projects, argue that since it came into force in 2005 FOI has achieved its primary objectives of making British government more accountable and transparent.

Freedom of information was in the news again when the Independent Commission, chaired by Lord (Terry) Burns, delivered its report on 1 March.  To some surprise, the Commission concluded the Act was ‘generally working well’, and there was ‘no evidence that the Act needs to be radically altered’. This was not the expectation when the Commission was established last summer, with a membership of Lord Burns, Lord (Alex) Carlile, Dame Patricia Hodgson, Lord (Michael) Howard, and Jack Straw.  Their terms of reference invited them to consider whether there was a need for sensitive information to have robust protection; whether the Act adequately recognised the need for a ‘safe space’ for policy development; and whether change was needed to moderate the burden on public authorities.  All that suggested a report that was likely to restrict FOI in various ways, but that is not what has happened.  Why has the Commission come to this unexpected result?

The answer lies mainly in the evidence they received.  The Commission received over 30,000 written responses, with 29,334 coming via the 38 Degrees campaign website.  The media and civil society organisations like the Campaign for Freedom of Information were strongly supportive of the Act, and it was left to a few local authorities, police authorities and NHS Trusts to explain the burdens they felt it imposed.  No central government departments submitted evidence, so if the government had wanted to restrict FOI, its case went by default.

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Better than asking: an experiment on the effectiveness of FoI requests

Ben WorthyMatia

In July 2015 the government appointed a new independent commission to look into how the law on freedom of information (FOI) is working. Here, Ben Worthy, Peter John and Matia Vannoni explain how their field experiment provides evidence that FOI requests work, and that they are twice as likely to get a response than informal requests.

In 2010 Tony Blair felt that passing the Freedom of Information Act was one of his biggest mistakes; in 2012 David Cameron claimed requests were ‘furring up the arteries’ of government. In 2015, FOI became controversial again when, after a Supreme Court ruling, the government appointed an independent commission to look into how the law is working. All the debate on the benefits and costs of FOI rest on one question, which is whether the law actually works as it should. Does FOI enable a user to ask a question and get a response? Do public bodies comply? Finding this out is trickier than it sounds. Simply measuring numbers of requests may not tell us much, as we need to measure it against something else. Some great attempts have been made in Brazil, Mexico and in an international 14 country study.

Building on these, we devised an experiment to compare whether a request under the law works better than a more informal route: that of simply asking. We sent out a series of similarly-worded FOI requests and informal asks – the former specifically mentioned the FOI Act. This way we hoped we could see if an FOI with the force of law worked better than just asking informally.

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The government’s Freedom of Information commission tilts the political discussion towards damage and cost

Ben Worthy

On Friday of last week, the government announced a new commission on Freedom of Information. Here, Ben Worthy offers his response to the announcement, arguing that the objections to the scope and usage of FOI that have been raised are nothing new, and furthermore aren’t unique to the UK. Further, he argues that the commission’s remit tilts discussion naturally towards the two issues of damage and costs, rather than a more balanced cost/benefit analysis. 

What’s Wrong?

The questions in the remit of the commission boil down to asking ‘is FOI undermining decision-making’ and ‘is it too expensive’? The remit itself is, of course, priming discussion in a particular way, framing it  towards two issues of (1) whether FOI is hampering decision-making and (2) whether it ‘costs too much’ . So what does the evidence say?

Is FOI Hampering Decision-making?

Just to put this discussion into context:

  • Our 2010 study of FOI in the UK found very few requests for Cabinet documents and also found a broader lack of interest in the decision-making process. Leaks are a far more important cause of openness for these citadels of government decision-making than FOI.
  • UK governments since 2005 have used the veto seven (or technically eight) times, compared with 48 times in Australia in the first five years of its own FOI Act. This seems to indicate that ‘dangerous’ requests trying to prise open the very centre of government are relatively few in number, though their psychological effect may be disproportionate.

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10 Years of Freedom of Information in the UK: Tony, Tension and Turbulence

Ben Worthy

Ben Worthy looks at how the Freedom of Information Act has come to work in practice and the debates around whether it is ‘good’ or ‘bad’. He argues that on balance it appears to be a success, bringing very public benefits and potentially unseen positive outcomes at local level as well.

‘The truth is that the FOI Act isn’t used, for the most part, by ‘the people’. It’s used by journalists. For political leaders, it’s like saying to someone who is hitting you over the head with a stick, ‘Hey, try this instead’, and handing them a mallet’ –Tony Blair 2010

‘The Freedom of Information Act has enhanced the UK’s democratic system and made our public bodies more open, accountable and transparent. It has been a success and we do not wish to diminish its intended scope, or its effectiveness’ – House of Commons Justice Select Committee 2012 Post-Legislative Scrutiny of FOI

These two comments sum up the difficulties of measuring how successful the UK Freedom of Information Act has been. It isn’t just about statistics on numbers of requests, users or refusals (though there are some here if you are interested). What people think also shapes how it works and how others then behave. So a former Prime Minister sees it as one of his biggest mistakes while a Parliamentary committee see it as a vital part of democracy. Which is it?

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Government Response on FOI

The Government recently responded to the Justice Committee’s post-legislative scrutiny of FOI. Below are some of the highlights. You can also see what FOI man said here.

In summary it’s a mix of the good (no upfront fees), the bad (revising cost limits) and the ‘let’s wait and see’ (exemption for universities and, the Oldie but Goldie extending FOI to other organisations).

FOI does not necessarily improve trust (though the jury is still out) but does have beneficial effects on democracy (see our take here).

The Government agrees that improved trust in Government may not have been an entirely realistic objective of FOIA. Nonetheless, some limited evidence suggests that FOIA has resulted in greater public trust in Government.

Although FOIA can result in criticism of public authorities, this tends to represent a minority of cases. The Government agrees that, notwithstanding any negative coverage of public authorities generated as a result of FOIA, the increased openness, transparency and accountability of public authorities brought about due to FOIA have lead to significant enhancements of our democracy.

There should be no upfront fees for requests…..(see some work on the cost of FOI here)

The Government agrees with the Committee’s assessment that charging for FOI requests would have an adverse impact on transparency and would undermine the objectives of the Act. For commercial requesters, the Government’s Transparency Agenda has been supportive of the role that public sector information can play in driving economic growth and thus, the Government is not minded to seek to curtail the ability of those seeking information for commercial purposes.

3. But it may be possible to lower the threshold or calculate differently.

It is the Government’s view that it ought to be possible to take into account some or all of the time spent on considering and redacting when calculating whether the costs limit has been exceeded.

The Government does not share the assessment of the Committee that it is unfeasible to develop an objective and fair methodology for calculating the cost limit which includes further time spent dealing with information in response to a request. As such, the Government is minded to explore options for providing that time taken to consider and redact information can be included in reaching the cost limit.

The Government will also look at other options to reduce the burden on public authorities in relation to the cost limit. These will include the possibility of reducing the current overall limits of £600 and £450

The government may revise how the veto is used (for some background on veto use see here)

The Government is minded to review and, as appropriate, revise the policy on the use of the veto. As part of that review, we propose to consider how the veto policy can be adapted both in terms of the process involved in its use and to offer greater clarity and reassurance on its ability to offer appropriate protection in addition to that which it provides in the context of information relating to collective Cabinet responsibility.

Universities may be given a special exemption for research, as exists in Scotland (see our research on FOI and Universities here)

The Government is minded to amend FOIA to introduce a dedicated exemption, subject to both a prejudice and public interest test, as recommended by the Committee. The Government shares the Committee’s view that this would constitute a proportionate response to the concerns expressed. The Government also agrees that such a measure should be reviewed at a suitable point after introduction

It may also extend FOI (if deemed necessary)? (this has been a long term commitment-but can they get around the ‘classic’ arguments against it ?)

We intend to continue consultations with over 200 more organisations, including the Local Government Group, NHS Confederation, harbour authorities and awarding bodies, about their possible inclusion in relation to functions of a public nature that they perform; and then to consult more than 2000 housing associations on the same basis. Where we conclude that such bodies are performing functions of a public nature, we intend to legislate under section 5 of FOIA to bring them within the scope of FOIA in relation to those functions, unless there are very good reasons not to, by spring 2015.

So what does this tell us? Some of the more high profile announcements may be less important than they seem. The veto, for example, has been rarely used. Few requests are made for university research and extending FOI has been an aim, but not an achievement, of at least two UK governments and one Scottish.  The interesting question is what these proposals tell us-the veto shift and proposal to charge for appeals to the Tribunal may indicate concern about FOI at higher levels of government, the University exclusion concern from senior levels of Higher Education.

The silent killer here may be the fees threshold. Reducing time spent or adding more activities to what is counted could mean many more requests hit the ceiling.