Tag Archives: transparency

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 →

Why pass FOI laws? The politics of freedom of information

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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.

Continue reading →

Return to the dark: the continuing lack of transparency over spads

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11th July 2013

The government released its response to the Public Administration Select Committee’s report on special advisers (spads) yesterday[1]. The more anorak-minded of us focused on Paragraph 8 where the government said something that is certainly misleading if not simply false:

“This Government has already significantly increased the transparency around all special advisers. The names and salary paybands of all special advisers are now published on a quarterly basis.”

Whilst the second sentence used to be true, nothing has been published since a report on 19 October 2012[2]. It is unclear why they would assert something to the contrary in an official publication.

It is only through relying on second-hand and unofficial sources that we are able to examine the number of spads, but it appears that about ten new spads have started working for the government who have not been named in any data release.

As this is about 10% of the total number who have worked for the Coalition at any point, this shows that the lack of clear data limits transparency and hampers data collection, whilst privileging those with pre-existing connections to the government (and frustrating researchers!).

Moreover, some of these spads have quite interesting backgrounds (e.g. the Lib Dem PPC who stood down to become a special adviser[3] or the Conservative spad assigned to a Minister of State who does not attend Cabinet[4]) and not all appointments have been noticed (even by bloggers who are normally quite watchful of these things, e.g. Guido Fawkes[5]).

Unfortunately, these secondary sources do not list information how much individual spads earn (or their collective pay bill), and thus that information will remain sadly in the dark until an eager MP asks a parliamentary question (as was normally the case until Tony Blair began releasing annual lists around 2003) or the government releases its next “eagerly” awaited list.

For those who are interested, information on the new spads is listed below:

Name

Minister

Department

Frith, Emily

Norman Lamb

Health

Gallagher, Will

Chris Grayling

Justice

Jones, Ed

Jeremy Hunt

Health

King, Nick

Maria Miller

DCMS

Masser, Alastair

Lord Hill

Leader of the Lords

O’Brien, Neil

George Osborne

Treasury

Parkinson, Stephen

Theresa May

Home Office

Rogers, Thea

George Osborne

Treasury

Talbot-Rice, Sam

Jeremy Hunt

Health

Wild, James

Michael Fallon

Business

Also, as far as our data shows, there are 89 spads in post (as of May-June 2013), a number which is certainly quite near the numbers reached during the New Labour governments.

No Going Back: Committee Protects FOI

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The Justice Committee today published its report following its post legislative scrutiny of the Freedom of Information Act. It concluded:

 The Freedom of Information Act has been a significant enhancement of our democracy. Overall our witnesses agreed the Act was working well. The Freedom of Information Act has achieved its three principal objectives, but its secondary objective of enhancing public confidence in Government has not been achieved, and was unlikely to be achieved.

It should be emphasised that the right to access public sector information is an important constitutional right, a fact that can get lost in complaints about the operation of the freedom of information regime. We do not believe that there has been any general harmful effect at all on the ability to conduct business in the public service, and in our view the additional burdens are outweighed by the benefits.

Some of the key findings were that

  •  The Freedom of Information Act has made government more transparent and more accountable.
  • The Act’s impact on decision-making is unclear, though the committee felt it may have had more of an impact than we felt it did.
  •  The Act’s impact on trust is also nuanced (perhaps more nuanced,in my opinion, than the MOJ memorandum claimed).
  • Publication schemes have been overtaken by technology, though it is too early to tell what impact reforms such as Open Data have had.

The Committee looked into some of the controversies around FOI.

  •  It concluded that evidence for a chilling effect is far from clear cut. The concerns of senior minister and officials may indicate there is a problem though, as the Committee pointed out, much of their evidence fitted particular circumstances, was hypothetical or was anecdotal-see Blair’s letter here. It did not recommend any changes in this area but sought to reassure that the Act itself, combined with use of the veto, should protect the required ‘safe space’ for discussion.  See here for my reasons as to why I am sceptical about this chilling.
  •  Despite a seemingly growing pressure for some form of application fee, the committee rejected this as too difficult to operate. It also outlined how difficult it was to calculate the cost of FOI.
  •  A final interesting and controversial proposal was the recommendation that universities be given a protection similar to that under the Scottish FOI that specifically protects research information. Interviewees we spoke to in our short study were divided over whether such an exemption would work or was necessary (see the UUK evidence and FOI man’s response).

The Committee made a number of recommendations: that the period of internal review have a 20 day limit, the ‘vexatious’ safeguards in the Act be better used and that requesters be told how much their question cost to process.

The most significant part of the report was what is did not do. There has been high profile criticism of FOI, from Tony Blair to David Cameron that worried the Information Commissioner. This had led to discussion of additional protections for discussion, the introduction of fees and other changes. The committee criticised Tony Blair for not appearing.

The report also quoted Francis Maude, who addressed concerns about ‘abuse’ by the press which may be driving some of these criticisms. Maude said: ‘Can [openness] lead to embarrassment? Yes. Do we have to be a bit grown up about that? Yes, we do’.

Cos I’m the Taxman: Opening Up on Tax

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David Cameron, following on from George Osbourne, has spoken of how he would be happy to publish his tax returns. This links to criticism that many of the ‘Cabinet of Millionaires’ benefit from recent tax changes, the recent ‘Cash for Access’ controversy and, not entirely unrelated, the recent row over Ken Livingstone and Boris Johnson’s incomes (you can see Boris’s returns here and Ken’s here)

Not everyone is convinced. Here Liddell-Grainger, the Conservative chairman of the All Party Group on Tax, said publication would be unfair and could trigger “jealousy.”

If you put up people’s tax returns just willy-nilly across the United Kingdom, then you get the envious factor coming in. You’ll get the jealousy. People like myself will be dealing with people whose names have been put on internet sites, Twitter and Facebook.

I don’t think that’s fair on people. They do pay tax. People don’t know what their neighbours are doing these days. Why drag them through the mire if they don’t need to be?

Such publication is common in Scandinavia (see details of Norway here and some analysis by Channel 4.) According to Channel 4, the publication of the details of all tax returns in Norway, where the law on publication was enacted, reversed, and then acted again, led to mixed results as it

Provoked an outcry from privacy campaigners, who claimed it had sparked a “frenzy of snooping”, as people rushed to find out exactly how much their neighbours and co-workers made. Newspapers and media outlets swiftly compiled their own “Top 10” lists, comparing the earning power of celebrity couples, and revealing details of top-earning footballers, actors, and business tycoons.

With details on everyone from reindeer herders to top lawyers freely available, the list seemed to symbolise the best of Nordic openness. As Jan Omdahl, from the tabloid Dagbladet, wrote at the time: “Isn’t this how a social democracy ought to work, with openness, transparency and social equality as ideals?” However a poll carried out in 2007 found most of his countrymen disagreed: just 32% thought the list should be published, while 46% were opposed.

In 2005 in Italy, in a supreme act of ‘last day in the office’ revenge, an outgoing Italian Finance Minister published tax details of the rich and famous.

Publication in Italy also caused quite a stir with allegations that it would be used by organised crime to kidnap the rich and hold them to ransom. Before you ask, Silvio Berlusconi earned £21.9m in 2005 and Giorgio Armani, who earned the most, earned £35m.

The exact point of publishing is not clear, apart from broadly being an ‘open’ thing to do. It is a great example of  the difficult, and unresolvable, balance between openness and privacy. It remains a problematic area in Norway and continues to be contentious. Perhaps this quote sums up the issue, with tax caught between the force of transparency, the voyeurism of celebrity and the irresistible pull of pure nosiness:

What some see as an honest commitment to fairness is for others, an invasion of personal privacy, and a licence for what the Norwegian tabloid Dagbladet described as “tax porno”.