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. Continue reading

What happens when the Prime Minister is incapacitated?

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Boris Johnson’s admission to hospital has led to speculation about who is ‘in charge’, if he is not able to fulfil his duties. Former Unit Director Robert Hazell outlines the constitutional position when the serving Prime Minister is incapacitated, arguing that our parliamentary system allows for greater flexiblity than a system in which a president is directly elected.

Since Boris Johnson was admitted to an Intensive Care Unit, the airwaves have been full of speculation about how government will be conducted in his absence, and what would happen if his condition worsens; or worse still, if he fails to recover.

When he formed his government, Boris Johnson appointed Dominic Raab as First Secretary of State as well as Foreign Secretary, and when he went into intensive care Johnson asked Raab to lead the government in his absence. So Dominic Raab will chair meetings of the Cabinet and the main Cabinet committees, and at the end of the discussion he will sum up and pronounce their collective decision. He will represent the government at its regular COVID-19 press briefings, unless he invites another minister to do so: as Johnson himself did in asking Health Secretary Matt Hancock to talk about health issues. And Raab will lead on all the government’s day-to-day business, and in responding to any other emergencies: for example, convening meetings of the National Security Council if there is a flare-up in the Middle East. In all this he will be supported by Sir Mark Sedwill, now a very experienced Cabinet Secretary, and the staff of the Cabinet Office, as well as the civil servants and political staff in Number 10.

What will happen if Johnson is ill for longer than expected? The Cabinet would then have to discuss whether to continue with these temporary arrangements, or start to consider a longer term solution if it seemed unlikely that Johnson could return to office. That leads on to the further question, what would happen if Johnson failed to recover. In those circumstances the Cabinet would then discuss who should be appointed as his successor, and would advise the Queen accordingly. Back in 1963, when Harold Macmillan reluctantly resigned from his hospital bed, it was the party elders (led by the Lord Chancellor, Lord Dilhorne) who took soundings of the Cabinet, leading to the Queen being advised to appoint Lord Home as his successor. But party leaders are now elected by the party membership rather than emerging through secret soundings, which can lead to a much longer process, typically lasting three months if the leadership election is contested. However, these would be difficult circumstances in which to hold a leadership contest, and it is notable that since the change in their rules the Conservatives have twice managed to choose a new party leader without reference to the wider membership – Michael Howard being elected unopposed in 2003, and Theresa May in 2016, when two of her rival candidates were eliminated in the initial votes by MPs, and two other candidates withdrew. Continue reading

Light and shadows: the RHI scandal and the temptations of secrecy

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The RHI inquiry in Northern Ireland has led to concerns about a record ‘void’ that has left room for doubt and suspicion. Ben Worthy argues that the lack of a record might aid political deniability, but means that politicians also can’t be truly exonerated when accused of wrongdoing.

Marilyn Stathern, in her famous article on the ‘Tyranny of transparency’, asked: ‘what does visibility conceal’?  While openness can shed light on some areas, it can also create shadows and shade to hide in. One of the biggest fears for transparency campaigners is that openness will create an opposite and equal reaction. Instead of letting in the light, could freedom of information laws, open meetings or open data lead to officials and politicians trying to hide from them, or even fight them? Could it create what’s called a ‘chilling effect’, whereby officials and politicians bury their decisions elsewhere?

Finding any firm evidence for resistance, avoidance or concealment is notoriously difficult. It could take place in numerous ways, whether avoiding questions or requests, keeping records and decisions off paper, or using non-official emails or networks like WhatsApp. It’s hard to prove a negative, that something isn’t happening and, if avoidance done well, it should stay hidden. Only the most incompetent or inept are likely to be caught.

A few concrete examples have surfaced. We have had flashes of an apparent ‘chilling’ in the Trump White House and closer to home with Michael Gove using a private email address for public business in 2012 (as urged by his then adviser Dominic Cummings). More worrying was the evidence in Scotland in 2018 that some parts of government were engaged in ‘deliberate delaying tactics and requests being blocked or refused for tenuous reasons’. But are these isolated cases or the tip of an iceberg of systematic resistance? Studies have come to varying conclusions and a select committee in 2012 concluded that there was no firm evidence.

However, it now looks as though transparency campaigners’ worst nightmare has come to pass in Northern Ireland’s RHI scandal, as detailed in Sam McBride’s new book Burned. The RHI scandal, as the later Inquiry FAQ explains, concerns ‘the non-domestic renewable heat incentive… a financial incentive for businesses to move away from non-renewable sources of energy’. However, the FAQ goes on, ‘how the scheme came about in the form in which it was adopted, how it has been operated and the possible financial consequences of the scheme have become the source of considerable public concern’. You can see the background here and a timeline. Continue reading

Ten things you need to know about a hung parliament

professor_hazell_2000x2500_1.jpgimage1.000.jpg.pngWe know there will be an election on 12 December, but the outcome, in terms of parliamentary seats and who will form the next government, remains uncertain. Robert Hazell and Harrison Shaylor answer some of the key questions about what happens if the election creates another hung parliament.

With an increasingly volatile electorate, and uncertain forecasts in the polls, it is possible the 2019 election will result in another hung parliament. Although bookmakers currently have a Conservative majority as comfortably the most likely election result, and the Conservatives are currently polling around 11 points ahead of Labour, a hung parliament is by no means out of the question. It would be the third hung parliament in four general elections. This explains what lessons can be learned from our previous experience of hung parliaments at Westminster and around the world. It addresses questions such as how a new government is formed, how long formation of that government will take, what kinds of government might emerge, and what the most likely outcomes are.

How common are hung parliaments in other countries?

In most democracies across the world, single party majority governments are the exception. Whereas the ‘first-past-the-post’ (FPTP) voting system used in the UK has had the tendency to encourage adversarial two-party politics and majority government, this is far from a default setting. Proportional representation tends almost always to produce coalitions: many countries in Europe currently have a coalition government.

Recent years have shown that, even in countries using FPTP, hung parliaments can occur quite frequently. In Canada, whose parliament uses the same electoral system as Westminster, there were 10 minority governments in the 20th century. There have already been four since 2000, including the incumbent minority government led by Justin Trudeau, formed after the Liberals lost their majority in the October 2019 federal election.

What is the experience of hung parliaments at Westminster?

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Westminster has more experience of hung parliaments than is generally recognised. There were 20 governments in Westminster in the 20th century: four were coalitions, and six were minority governments. But single party majority governments dominated after the Second World War. The 2010 coalition government was the first since 1945 and the product of the first hung parliament in 36 years. Since 2010, however, two out of three general elections have produced hung parliaments (and the fact that David Cameron’s Conservatives succeeded in obtaining an absolute majority in 2015 was a surprise). Continue reading

Advice in a time of belief: Brexit and the civil service

Jim.Gallagher.150x150.jpgThe role of the civil service in delivering Brexit has been hotly debated by many. Its neutrality has been questioned by some, and individual civil servants have been personally criticised. But what precisely is their role when it comes to advising ministers, and has it been affected by Brexit? Jim Gallagher argues that just as political parties have been tested by the result of the 2016 referendum, the civil service is similarly under pressure.

The UK civil service prides itself on being able to serve democratically elected ministers of radically different political beliefs. This principle of political neutrality has carried it through transitions as marked as Callaghan to Thatcher, Major to Blair, and from the Brown government to its coalition successor.

The permanent home civil service has also successfully transitioned from serving Westminster departments to devolved administrations in Cardiff and Edinburgh, even advising a Scottish government in pursuing independence. None of these transitions has been painless, but Brexit seems to present a different challenge.

Individual officials have been publicly identified for criticism, dismissed or moved after giving unpalatable advice, or leaked against in the press. Sir Ivan Rogers was sacked from his job in Brussels for advising on how the EU would react. Olly Robbins will be the fall guy for negotiating Mrs May’s failed deal. Last week, Sir Kim Darroch, the UK’s ambassador in Washington, resigned, and the Cabinet secretary Sir Mark Sedwill is said to be next.

But this may not just be about individuals. Many pro-Brexit politicians seem to see the civil service as a supporter of the establishment they seek to overthrow. So is the principle of a politically neutral civil service under threat? Continue reading