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

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

Challenges to good government in Northern Ireland: charting a future course

alan_rialto2-1The first part of this blog looked at Northern Ireland’s troubled experience with government without ministers for the last year and a half; while the Renewable Heat Incentive Inquiry offered colourful but not uplifting revelations about the way it had been conducted under devolution; and Westminster’s conduct of its responsibilities was widely questioned. Alan Whysall asks what lies behind these problems?

A lack of interest in good government and public policy has long been part of the Northern Ireland political culture. The dialogue in politics and the media has always readily reverted to the traditional issues – and more now that the parties are not constrained by the need to work together.

Partly, this illustrates the seriousness of the political and community divide that politics must seek to bridge. But the reflection of that divide in the structure of politics in Northern Ireland also means that no alternative government is on offer during elections, so misconduct in government is harder for the electorate to sanction. If the great priority of most electors is to support their community’s champion against the other side, the detail of the champion’s conduct in government gets lost. Continue reading