FOI and the politically empowered

Here at the Unit we’re wrapping up a project on FOI and Parliament which looked at the use of FOI by MPs and peers. We’ve been asking:

  • Is FOI another tool in MPs’ arsenal?
  • Is it useful, and has it become part of the cut and thrust of politics?
  • Or, is it not being used?

After all, MPs already have great research tools, like Parliamentary Questions, access to the House of Commons Library and many NGOs working in the field who can provide them with information. Plus they are likely to get a more robust reply from ministerial letters than an ordinary member of the public (a reason their work for constituents is so valuable).

So why do any MPs make FOI requests? Examples from different parliamentarians provide us with some answers:

A key role of the parliamentarian is to hold public institutions to account, and our previous research finds that FOI helps increase accountability of institutions. Time will tell if FOI grows in popularity as an accountability tool among the elites who know how to manipulate and publicise information more than most. Our study finds that overcoming structural resourcing shortages may be the key to this.  The time and resource issues of FOI, compared with ‘instant’ PQs, cannot be easily overcome. FOI requests and their subsequent analysis takes much time, something that heavily effects FOI’s use by peers in the less professional and less well resourced House of Lords in particular. In New Zealand, it was the switch to a proportional voting system and a parliament with at least five political parties represented that saw FOI use increase as parliamentary competition did. Maybe an elected House of Lords could at least provide the competitive impetuous for wider use by peers. Though a cynic may say any increase in use by MPs will coincide when the tally of requests becomes another feature of They WorkForYou statistics…

Coalition Works! The Independent View

Article from Liberal Democrat Voice

The coalition is working well, but the Lib Dems could do better, is the overall message from the Constitution Unit’s first report on how the coalition works in Whitehall and Westminster. We are conducting a 12 month study, funded by the Nuffield Foundation, with a research team of five, including two former senior civil servants, and one senior broadcaster. David Cameron and Nick Clegg have authorised access to all the key figures in Whitehall, and so far we have interviewed 90 ministers, special advisers, officials, parliamentarians, and external interest groups.

Everyone we interviewed in Whitehall says how much more harmonious the coalition is compared with the rivalries and infighting of the Blair/Brown years. After widespread fears that coalition government would be weak, quarrelsome and divided, in the first year the coalition has proved remarkably stable and united. Cabinet government has been revived; but coalition issues are mainly resolved in informal forums, with weekly meetings between Clegg and Cameron, and regular get togethers between Danny Alexander and Oliver Letwin. The mutual trust and close working relations developed not just between Clegg and Cameron, but amongst all their top advisers, should help the government as it faces tougher times ahead.

And how could the Lib Dems do better? Read the full article at:

http://www.libdemvoice.org/the-independent-view-coalition-works-the-inside-story-from-the-constitution-unit-24357.html

The Inside Story: How Coalition Government Works–A Summary

The Coalition in Whitehall

  • Finding a balance between unity and distinctiveness is the key problem for coalition government. The current coalition has successfully ensured unity, and stability; but struggles to allow the two parties to express their distinctiveness.
  • Formal cabinet government has been revived: Cabinet and cabinet committees now meet regularly, but these are mostly forums for dealing with interdepartmental issues rather than specifically coalition issues.
  • The main forums for reaching agreement between coalition partners are informal. Coalition issues are often dealt with before they reach the formal machinery of government.
  • This informality of coalition decision making is based on high levels of trust between the leadership of the two parties. Trust, and the importance of compatible personalities, are essential for coalition government.
  • However, this informality has one drawback: it means that the Lib Dems are often unable to demonstrate their influence in government.
  • Some machinery has surprisingly not been effective in coalition brokerage—in particular, the Deputy Prime Minister’s Office, special advisers, and Liberal Democrat junior ministers.

The Coalition in Westminster

  • Flexibility within the executive is not always matched by flexibility in parliament. Compromise hammered out in government has led to excessive rigidity when policies are introduced into Parliament.
  • The informality and relatively close relationships in the executive are not matched by similar relationships within Parliament. In both houses, the coalition is tolerated rather than embraced.
  • Coalition governments often lead to a divide between the frontbench and backbench. Rebellions in this parliament are historically at record highs.
  • The parliamentary parties have begun to modify their backbench committees to prevent the divide between frontbench and backbench widening.

The Dilemmas for the Junior Partner

  • The Lib Dems are still reeling from the loss of their state funding, given only to opposition parties. This has led to the loss of many of their staff. It may help explain their under powered performance, particularly with the media.
  • By going for breadth over depth, the Lib Dems have spread themselves too thinly. They need to prioritise. Given the numbers they have, what can they realistically do which will have an impact with the public?
  • In a future coalition, the junior partner might seek to specify the support to be made available to them, in terms of special advisers, expanded Private Offices, and additional support for the parliamentary party.

Press Release: Coalition Works! The inside story from the Constitution Unit

What works, and what doesn’t in the new coalition? A first year report – full version pdf

Despite the political strains which have affected the coalition in recent months, the Constitution Unit’s research on how the coalition works shows that it has functioned very well in its first year. Viewed from inside, the ructions which have dominated the headlines have not destroyed the coalition’s effectiveness.

The Unit’s first year report, Inside Story: How coalition government works, is based upon 90 interviews with senior people in Whitehall and Westminster. The mutual trust and close working relations developed inside the government should help as it faces tougher times ahead.

“People feared that coalition government would be weak, quarrelsome and divided” said the Unit’s director Prof Robert Hazell. “But in the first year the coalition has been remarkably stable and united. Everyone we interviewed in Whitehall says how much more harmonious the coalition is compared with the rivalries and infighting of the Blair/Brown years”.

“Maintaining that unity in government while demonstrating the distinctiveness of the two parties is the key challenge going forward” Prof Hazell added. “This is particularly difficult for the Lib Dems as the junior partner. Instead of spreading themselves thinly across the whole of government, they need to prioritise their effort on areas where they can clearly have an impact”.

“An interesting development is the Lib Dems’ backbench committees” said the project’s lead researcher Dr Ben Yong. “It is a sign of how stretched the Lib Dems are for resources that these have been created. But it is also a way of preserving their distinct identity, and gives backbenchers regular contact with the frontbench. Conservatives we interviewed have been rather envious, and they have now started their own backbench policy committees”.

The report’s findings and recommendations include:

  • The Lib Dems did well in the coalition negotiations, with 75% of their manifesto items going into the coalition agreement compared with 60% of the Conservative manifesto. But in any future coalition, they should focus as much on the division of office as the division of policy. It is through ministerial leadership that coalition partners have visible impact.
  • By going for breadth over depth in their selection of ministerial posts, the Lib Dems risk spreading themselves too thinly. They may have achieved hundreds of small policy wins, but their influence is invisible to the public
  • Cabinet committees deal mainly with interdepartmental issues. Coalition issues are resolved in half a dozen informal forums, and are dealt with before they reach the formal machinery of government.

Notes for Editors

  • This is an initial report from a 12 month study of how the coalition works, funded by the Nuffield Foundation. The project runs until December.
  • Access to Whitehall interviewees has been authorised by the Prime Minister, Deputy Prime Minister and Sir Gus O’Donnell. So far the project team have interviewed 90 officials, ministers, special advisers, parliamentarians and outside groups.
  • Robert Hazell is available for interview this weekend, tel 020 7679 4977 (Friday), 020 7267 4881 (Sat and Sunday).
  • Browse the coalition government project pages

The Coalition and the Constitution

Prof Vernon Bogdanor (Research Professor at the Institute for Contemporary History, King’s College London)

Date: Thursday 12 May, 6.00pm Venue: Council Room, The Constitution Unit

The first anniversary of the Coalition has come and gone. It was the cue for a mass of commentary – which is interesting in itself. It is clear that the British public and media are still coming to terms with coalition. Professor Vernon Bogdanor, long a student of coalition governments, has been looking at the implications for the British constitution. Professor Bogdanor spoke on this yesterday at the Constitution Unit to promote his new book The Coalition and the Constitution (Hart Publishing, Oxford). He drew interesting comparisons between historical coalitions and our current situation. Bogdanor argued that many coalition governments had been formed out of fear. For instance, the current economic stresses at home and abroad caused the Liberal Democrats to form a coalition with the Conservatives and abandon their previous policies and adopt the Conservative policy of immediate and sustained deep spending cuts. Bogdanor argued that this was not going to be a comfortable ride for the Lib Dems. Coalitions have never been happy experiences for the Liberals, often leading to splits within the party –the classic example being the Liberal Unionists who later merged with the Conservatives. His analysis showed that the Conservatives, on the other hand, had largely benefited from these alliances. The reduction of Commons seats from the current figure of 650 to 600 had been overshadowed by the AV referendum, despite being arguably the more revolutionary reform of the two. This meant that many constituency associations will have to pick new electoral candidates which could result in a slew of anti-coalition candidates being chosen. A key point of Bogdanor’s talk was that coalitions collapse from the bottom-up, not from the top down. He also spoke of the effect of the Fixed Term Parliaments Bill, which could provide the Lib Dems with a way out of the Coalition without having to fear immediate annihilation by Cameron calling a general election. During the following question and answers session, some in the audience queried Professor Bogdanor’s historical account. Audience members of Liberal Democrat and Conservatives persuasion both defended the Coalition, trying to distinguish between the circumstances leading to the current coalition and those leading to previous coalition administrations. A question was asked about the application of the Salisbury convention in the House of Lords. A peer in the audience argued that the House of Lords was fully entitled to vote down government legislation and that the Salisbury convention didn’t apply under the present circumstances. The effects of the recent AV referendum were also discussed, with Professor Bogdanor believing that it will galvanise those ‘small c’ conservative elements in both Houses, but that the finality of referendums can be overstated – Britain’s status in Europe is still up for debate 31 years after the Common Market referendum.

Further information

Graham Gee: Are Executive-Judicial Relations Strained?

[Posted on behalf of Graham Gee. This post originally appeared on the UK Constitutional Law Group Blog.]

At one level, it seems reasonable to characterise executive-judicial relations as strained. In recent weeks, after all, concerns have been raised by senior judges, or on their behalf, on a range of matters—including (the now withdrawn) Schedule 7 of the Public Bodies Bill that would have given ministers the power to modify, merge or abolish a large number of public bodies, including the Judicial Appointments Commission (see here and here); Part 4 of the Pensions Bill, which provides that ministers may require judges to contribute to the costs of their pensions, whereas at the moment judges only contribute to the costs of benefits for their spouses and dependents (see here); as well as aspects of the finance and administration of the UKSC (see here). At the same time, the PM and Home Secretary have spoken of being ‘appalled’ by the UKSC’s 2010 decision in R(F) on the notification requirements for sexual offenders, with the PM also outspoken on the ECtHR’s 2005 ruling in Hirst v UK (No. 2) on prisoners’ votes. But, at another level, the characterisation of executive-judicial relations as strained risks concealing more than it reveals, and for three main reasons.

First, public lawyers often use shorthand when discussing institutional relationships. For example, we refer to ‘executive-legislative relations’ when discussing Parliament’s powers or the ability of Parliament to hold the Government to account. Often the implication, as Anthony King noted in an article in 1976, is that there is one body called Parliament and another called the Government, with our aim to study the relationship between the two. Yet, as King explained, if we really want to understand the various phenomena subsumed under such a broad heading as ‘executive-legislative relations’, we need to study a number of distinct political relationships (including those between and within different chambers, between Government and Opposition and between and within different political parties). King’s basic point—and, in one sense, it is a very basic point and yet, at the same time, marvellously subtle—is that shorthand such as ‘executive-legislative relations’ conceals multiple, complex relationships, each with its own dynamic. So what then do we mean by ‘executive-judicial relations’? Following King, we can take this as shorthand for distinct but sometimes overlapping relationships. For a start, there is not simply one ‘judiciary’ or one ‘executive’ relevant to UK public lawyers; rather, there are multiple judiciaries and executives in our multi-layered polity. We might speculate that relations appear strained between UK Ministers and the UKSC, and those ministers and the ECtHR. Or similarly we might have speculated that, following Cadder, relations between Scottish Ministers and the UKSC were strained. But, in each case, we ought to offer our speculative assessments whilst reserving judgment about other relationships. The point, here, is that we have to specify which executive and judiciary we have in mind when talking of strained relations.

Second, even then, we would likely have in mind relations between only some part of the executive and some part of the judiciary and only on certain issues. Are relations between the Lord Chancellor and the UKSC strained? On the one hand, the Lord Chancellor gave short shrift to the concerns raised by Lord Phillips about the funding of the UKSC and the position of its Chief Executive (see here). As Joshua Rozenberg put it, Lord Phillips ‘learned the hard way’ that a judge ‘who takes on the government in the court of public opinion is bound to end up second best’. On the other hand, reports a week later suggested that the Lord Chancellor had sent a ‘furious letter’ to the Home Secretary, copied to the PM, rebuking her (and, indirectly, the PM) for intemperate comments on the UKSC’s decision in R(F). Leave to one side the question of whether Theresa May’s comments were in fact intemperate, or whether this was simply the sort of ‘no-holds-barred constitutional politics’ that Danny Nicol suggests that we should expect under the HRA. Leave also to one side the question of how ministers ought to react, particularly on the floor of the House, where they are genuinely appalled by some judicial decision. The point, here, is that different parts of the executive have different relations with different parts of the judiciary, with clashes between ministers and judges only ever one part of the story. What is more, the same minister can have differing relations with the same part of the judiciary on different issues.

Third, strained relationships between ministers and judges are sometimes as much about some aspect of ‘executive-legislative relations’ as ‘executive-judicial relations’. Consider, for example, the timing of Theresa May’s ministerial statement on R(F) in mid-February. This statement was made 10 months after the original decision, but less than a week after the House of Commons’ debated the blanket ban on voting by prisoners, where MPs backed a motion stating inter alia that ‘legislative decisions of this nature should be a matter for democratically-elected lawmakers’. Had the Home Office long been planning to respond to the s4 declaration in R(F) in mid-February? Was someone in government pushing for the statement to be made sooner than planned in order to intensify debates about the HRA, the ECHR and a British Bill of Rights? Was the timing of the statement a sop to Conservative backbenchers riled by other aspects of the Coalition Government’s constitutional agenda, coming as it did on the same day that the Parliamentary Voting System and Constituencies Act 2011 received Royal Assent? None of this should be read as to dismiss the importance of ministerial criticism of this or that judicial decision or political debate about issues such as prisoners’ voters or the post-sentence monitoring of sexual offenders. As King noted in his article, the views of Government backbenchers matter because they are seldom speaking for themselves. Their views on knotty question such as the proper role of courts are likely to be held by some, and perhaps many, inside the Government, as well as parts of the public at large. The point is simply that, at times, it may not be best to construe apparent clashes between ministers and judges solely in terms of ‘executive-judicial relations’, but to see them as related to those larger, complex relationships that we conflate under the shorthand of ‘executive-legislative relations’.

Spads: Who they are, what they do, why they exist—and why they will continue to be appointed

What are spads, said everywoman, and would not stay for answer. Everyone knows about certain notorious special advisers—Alastair Campbell, spin doctor extraordinaire; Damien McBride, attack dog for Gordon Brown; and Jo Moore, forever infamous for sending an email around on 11 September 2001 saying, “today is a good day for burying bad news.”[1] Under the Cameron-Clegg administration, media reports on the whole remain fairly hostile.

There have been some dissenting voices, calling for more spads. Jahan Ganesh in Prospect (££); Tim Montgomerie on ConservativeHome; our esteemed (and rather more flush) colleagues at the Institute for Government as well. The recent reconfiguration of No 10’s policy unit suggests the coalition is feeling the absence of spads.

But what are special advisers, and what exactly do they do? There is surprisingly little on this, academically.

A technical definition: they are temporary civil servants, drawn from outside the traditional civil service structure, and subject to the patronage of ministers for whom they work. In layman terms, civil servants are appointed through open competition and promoted by merit. Special advisers, on the other hand, are appointed personally by ministers, to work for those ministers; when a minister leaves, the spad leaves with them. They may or may not have policy expertise.

What do spads do? Most think of them as spin doctors, but this is too crude. Maria Maley, at the Australian National University, has identified five basic functions:

  1. Personal support: managing the minister’s time, determining priorities
  2. Political support: in parliament, within the party, etc
  3. Communication: media management, but also management of relations with other key actors
  4. Policy matters: initiatives, development, implementation
  5. Executive coordination: between portfolios and between ministries.

The focus has always been on ‘spin’, but the truth is we don’t know what the majority of spads do. Some clearly are spin doctors (Alastair Campbell), but others are not (Jonathan Powell’s key ‘function’ would have been executive coordination; Andrew Adonis perhaps for his policy knowledge). There are usually about 75 spads in any one year: we tend only to hear about a tiny few, usually those at the centre; not those in departments.

Spads are often thought of as bright young things with an eye to a political post in the future. They are often thought to be former parliamentary researchers or think tankers. Former special advisers include David Cameron, George Osborne, Ed Miliband, Ed Balls, Jack Straw … the list goes on. But again: we don’t know if the labels ‘bright young thing’/ ‘political careerist’ are appropriate because no one yet has studied them in detail in the UK (see below for the exceptions).

A final point, before this post gets too long. The focus has always been on spads, and their apparent malign influence—but there is a prior question: why do ministers keep appointing spads? Well—again, we don’t know the actual reasons. But we can guess. Spads exist because there is a demand for them. And there are at least three reasons why ministers may want to appoint spads:

  1. Ministers are overloaded.[2] They just have too much to do—so spads help ministers to determine their priorities.
  2. being (ostensibly) neutral, civil servants cannot offer ‘political’ advice; spads, often being appointed for their political qualities, can.
  3. Ministers want to increase the ‘responsiveness’ of the civil service, which is seen as passive and obstructive; spads can drive the machine because they exist outside the civil service.

There may be a fourth reason: coalition government. Coalition government may require greater negotiation between parties; spads may provide that liaison function.

Whether or not these reasons are legitimate reasons is another story. But these are likely to be the reasons ministers will give in appointing special advisers. We should be asking ministers what they think special advisers are for, and to what extent they fulfil this function (or functions). It is time we moved on from talking about spads in a largely negative manner and asking whether there are too many, to asking why are they there, how they contribute, and whether they can improve ministerial effectiveness.

Background

The Constitution Unit has been working on a grant proposal on special advisers, and so it seemed appropriate to blog on this. For those really interested in spads, there is Andrew Blick’s excellent text. On the internet, start with the House of Commons’ library research note; or  the Public Administration Select Committee’s 2001 report, Special Advisers: Boon or Bane, which is still good value. There’s also an excellent article by a former spad to Jack Straw here, which gives an insight into a spad’s everyday life. The Powerbase website has (very) uneven coverage of special advisers. On what ministers do, and ought to do, there is the (so-so) Public Administration Select Committee report What Do Ministers Do?

EDIT 14/04/11: a very interesting report on the coalition’s spads here:

http://network.civilservicelive.com/pg/pages/view/564295/

EDIT 16/09/12: I should have updated this long ago. But the Unit is now carrying out a project looking at special advisers 1997-2012. Watch for more news here:

http://www.ucl.ac.uk/constitution-unit/research/special-advisers


[1] And of course Sir Richard Mottram’s rather choice response when he discovered Jo Moore’s email had been leaked.

[2] I could write a whole post on this. Ministers have ridiculous workloads. This is partly because of the complexity of modern government; and partly because of an unwillingness to define what a minister ought to do.

Unit in the News

Some recent mentions of the Unit over the last couple of weeks:

Aiding ministerial achievement, Guardian (14 March 2011)

http://www.guardian.co.uk/public-leaders-network/2011/mar/14/professional-ministers-delegation-whitehall

Calls for merger of Welsh, Irish and Scots offices, Wales Online (10 March 2011)

Goats humiliated by Wolves, Epolitix (01 March 2011)

Lord Green and the Problems of ‘Outsider’ Ministers

According to the FT’s Westminster Blog, Lord Green of Hurstpierpoint, the Coalition’s new trade minister has agreed to vote in line with the Conservative party—but he has chosen not to become a member of the Tories or the Lib Dems. Shades of Lord Digby Jones, a businessman who was appointed as the UK’s Minister of State for Trade and Investment during Gordon Brown’s premiership. Lord Jones also refused to take the Labour whip, causing much consternation at the time. It didn’t help that Lord Jones left after a year, after having complained about the dehumanising experience of being a junior minister, and being very disparaging about civil servants.  Ouch.

The Constitution Unit will soon publish a report on ‘outsider ministers’—those people who are initially non-parliamentarians who are appointed to ministerial posts because of their expertise. In the report, Putting Goats amongst the Wolves, we discuss the experience of these ‘outsiders’. Brought into government, these men and women, usually highly successful in the ‘non-political world’, often found it difficult to adapt to being in government, and often left quickly. Not because they were incompetent—but because they were thrown in the deep end with little guidance, and because they faced resentment from the rank-and-file who believed that only parliamentarians (and preferably elected parliamentarians) should take ministerial office.

We interviewed over 20 individuals, mostly peer ministers and those who had dealt with the outsider ministers. From this we derived a number of recommendations to aid in the integration of outsiders. A key recommendation was that outsiders should be prepared to join the governing political party. This would indicate they have a long term commitment, and help to build trust with their fellow parliamentarians.

Lord Green may have a hard time ahead: coalition government tends to intensify the division between the frontbench from the backbench—refusing to be a member of either coalition party is not going to make Lord Green’s life any easier. And his refusal to join the party gives Tory backbenchers yet another reason to gripe to David Cameron.

For more information on the Ministers from outside Parliament project, watch this space:

http://www.ucl.ac.uk/constitution-unit/research/parliament/ministers-outside-parliament2

The Constitution Unit is also beginning a project on coalition governance. For more information, see here:

http://www.ucl.ac.uk/constitution-unit/research/coalition-government