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

An ‘extraordinary scandal’: looking back at the 2009 MPs’ expenses crisis and its consequences

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More than ten years on from the 2009 expenses scandal, Andrew Walker and Emma Crewe have published a book that seeks to offer fresh insight into the origins and legacy of the crisis. David Natzler, a former Clerk of the Commons, offers his own take on the book, and the crisis it seeks to shed light on.

Over a decade has passed since the Westminster expenses scandal of 2009. It is widely regarded as one of the factors, together with the banking crisis and the absence of a referendum on the Lisbon Treaty, which led to popular contempt for the political class, the growth of UKIP, and thus the outcome of the 2016 referendum. There have been useful books and articles on the scandal’s effect as well as accounts by the journalists involved, and last year there were several TV and radio programmes looking back to what seemed at the time to be a momentous series of events. 

Now there is a book by Emma Crewe and Andrew Walker, An Extraordinary Scandal: the Westminster Expenses Crisis and Why it Still Matters, published late in 2019 by Haus. Andrew Walker was the senior Commons official responsible for the administration of the expenses regime; Emma Crewe is an academic anthropologist who has specialised recently in looking at parliamentary culture. I should declare an interest as it was at my suggestion that Andrew approached Emma with the prospect of working together on this project.

The basic story is familiar. A disc (or discs) containing at least a million documents was bought by the Daily Telegraph, who through May and June 2009 published daily exposés of the claims made by MPs. The information was on the discs in preparation for the major clerical task of responding to a court ruling under the Freedom of Information Act 2000 requiring the publication by the House of Commons of much more detailed information than hitherto on payments made to members under the expenses scheme. The Act’s final incarnation included within its statutory ambit both ‘the House of Commons’ and ‘the House of Lords’, although neither appeared in the bill as first drafted. Jack Straw, the minister in charge of the bill, added them to the list of public authorities in Schedule 1 to the Act, and is said to have regretted it ever since. Individual MPs and peers were not then – and are not now – regarded as public authorities. But the House authorities were subject to the Act, and since they administered the expenses system and held the information on MPs’ claims, it became disclosable.

The Act did not come into force until 2005, giving anybody that would be affected five years to prepare. One obligation was to prepare ‘schemes of publication’, which would list what information would be published proactively. The House of Commons made similar preparations to other public authorities: they appointed specialist staff to oversee the effort and discussed what they would proactively publish. The House of Commons eventually decided in late 2004 to publish details of MPs’ expenses broken down into several headings, for each of the previous three years, and to then issue quarterly updates. Crewe and Walker recount the vain attempt to prevent the press from creating ‘league tables’ of MPs by publishing only a locked pdf, which the press had little difficulty in cracking. Various MPs were appalled and angry at being ‘exposed’ as the UK’s or Lancashire’s most expensive MP. One external PR adviser had to resign when it emerged that he had been secretly encouraging one party to make more of a meal of the other party’s record. 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

The power to just say no: Corbyn, Freedom of Information and the Ministerial Veto

image_previewJeremy Corbyn recently used a speech on what a Labour government would seek to change in the media sector to confirm that the party will seek to abolish the ministerial power to veto decisions to release government papers under the Freedom of Information Act. Ben Worthy argues that the idea is neither new, or the best means of increasing transparency.

Vetoes are there in the hope they will not be needed, but their mere existence reassures. In no case is this truer than section 53 of the UK FOI Act,  which allows the government the ultimate power to block requests. Amongst a number of radical proposals in his recent speech on the media, Jeremy Corbyn suggested that he would ‘look at ending the ministerial veto to prevent the Information Commissioner being overruled’, thereby abolishing the government’s FOI veto.

Some sort of veto, or ultimate backstop, is common across many FOI regimes. The US stands as an exception due to the separation of powers (though this didn’t stop President Johnson trying to insert a thoroughly unconstitutional one into the original bill). In some senses, the veto is symbolic for supporters and critics alike, offering a final reassurance or a last line of ultimate secrecy, depending on your point of view.  The idea to abolish it has been around for some time, and the Liberal Democrats promised to do so in their 2017 election manifesto.

In the UK, whether the Freedom of Information Act 2000 (FOIA) had a veto in it or not was a key sticking point, and an indicator of the shifting radicalism of the policy as it made its turbulent way onto the statute book. The terrifying lack of a veto in the original White Paper sent a shiver through Whitehall (a veto would, it argued, ‘erode public confidence in the Act’). The later draft bill, which emerged after much retreating and agony, had a veto so wide it could be used not only by government ministers but also potentially local councillors. In this form, it was a veto that could be seen, as it were, from Huddersfield. Removed from the White Paper and re-inserted into the draft Bill, the final FOIA gave government a veto to prevent the release of information, even if the appeal system ruled in favour, in situations where the public interest had been weighed and ‘exceptional circumstances’ existed. So far so clear. But there are some complexities that only, perhaps, Corbyn’s proposal would resolve. Continue reading

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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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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