Brexit, as we now know, means Brexit. But what does it mean for open government in the UK? On the surface, nothing changes. Almost all the legislation, from Freedom of Information to Data Protection, is bound up in UK law. The Open Data agenda will also continue to move along. Even the EU initiated laws lie Public Sector Re-use will be kept or, if anything is reversed, will somehow be preserved. There are three areas, however, where the tone or direction of open government may change: through new policies, the influence of the new Prime Minister and the Brexit process itself.
Looking across the UK’s 3rd OGP National Action Plan the top three commitments around Beneficial Ownership, extractives transparency and anti-corruption are all very much David Cameron’s personal agenda. Some of them are also very much in process, as the first Beneficial Ownership release last week shows (see this great analysis here of the first batch of data).
Theresa May’s speech in Birmingham has already indicated that she wants to continue in this general direction, with a commitment to ‘more transparency, including the full disclosure of bonus targets and the publication of “pay multiple” data’ and support for Cameron’s anti-tax avoidance drive. The wider open data agenda is still ongoing. The FOI Act is also relatively safe (for the time being). Since it came into force in 2005 there has been an attempt to amend the law every 18 months or so. However, the FOI Commission’s clear endorsement of the Act and the sheer scale of the resistance to change has probably called a halt to any attempt to limit it in the near future-indeed the 3rd NAP proposed greater publication of data and some minor improvements.
Some new policies are very likely. New governments often promote openness to set a tone. This may be especially important for Prime Minister without a mandate facing the complications of Brexit. Openness represents an easy win to a new leader and is, perhaps, something that could help offset concerns over May’s rather, shall we say, less open actions as Home Secretary. Self-consciously ‘reforming’ administrations in the UK in 1997 and then in 2010, the US in 2009 and Italy in 2013 all made transparency a priority. It ‘signals’ a whole set of messages: that a government is prepared to be open and ‘democratic’ and is prepared to be monitored or overseen by the public.
New Prime Minister?
Political leaders set the tone and send out signals about the openness of their governments. Here’s my quick summary of how the U’Ks last three Prime Ministers did and to what extent they tried to pushback (i.e. limit) or extend openness.
UK Prime Ministers and Openness 2005-2016
|Tony Blair||Fees mooted (2006), (tacitly) supported attempt to have Parliament excluded (2007)||Passed FOI Act in 2000|
|Gordon Brown||Cabinet exclusion mooted, Excluded Monarchy from FOI (2010)||Extension of 30 year rule (2009) and slight extension of FOI to new areas|
|David Cameron||FOI commission (2015-2016)||OGP especially Open Data agenda (2010 onwards) and Beneficial Ownership transparency (2013)|
[N.B. this table doesn’t include a series of extensions of the FOI (Scotland) Act in 2012 and 2015-16]
While Tony Blair passed FOI then regretted it, Gordon Brown and David Cameron made strong speeches in favour of openness and pushed various transparency reforms. Cameron was especially committed to make his government the most open in the world, though in 2015 he set up an FOI Commission to restrict the Act and described the law as a ‘buggeration factor’.
So how about new Prime Minister May?
On the plus side, May as Home Secretary has supported and pushed the transparency within the UK anti-corruption agenda and was a key supporter of the long running Hillsborough campaign that exposed police corruption in the late 1980s. On a personal level she was quick to publish her own tax details. She has also extended FOI to the Police Federation and opened up police disciplinary hearings (though a cynic could argue that it is always easy to be transparent about your opponents).
On the minus side, May has been in the Home Office. Historically, the Home Office sunk many plans for greater openness. Recently it seems to have come a rather high third or so in the worst performing departments for FOI. This may, in part, be due to the often difficult and sensitive nature of some of the Home Office’s work.
May herself also has a less than liberal stance on various issues that runs against the idea of more openness: critics could well discern an authoritarian streak. She hasn’t always been transparent or accountable, seeking to hide Border Force cuts from Parliament in 2016 and, more famously, deflecting blame onto officials in 2011.
By far the biggest concern is over the repeated attempts on her watch to pass Investigatory powers legislation (aka ‘the Snoopers Charter’) that has led to ‘controversy around encryption, bulk data and hacking’and the right of various security services to carry out mass surveillance on the public. Serious privacy concerns have been raised by Parliament with the UN warning it not compliant with International law. May’s refusal, in response to an FOI request, to release her own internet search history led to a backlash from MPs.
Brexit and Beyond?
Brexit itself will soon become a huge transparency issue. There is an interesting debate about how much ‘information’ there was flowing in the referendum campaign itself, as this great blog post discusses. However, once negotiations begin there will be unprecedented pressure and scrutiny. Prime Minister May and the other 27 countries will probably argue for some secrecy in the delicate process but there will be a powerful case for more open door negotiations and, on a practical level, more leaks than you can imagine.
Here is the crux of the tricky debate between openness and closure. This fascinating study of the European Council of Ministers found openness can be good at regulating behaviour in negotiations but can encourage posturing or unnecessary ‘signalling’ to domestic audiences. Keeping discussions confidential will need to be balanced by a very difficult environment where the Leavers fear being ‘sold out’, Remainers hope for a messy compromise and the press and public demand to know what’s being done.
Looking further into the future, the impact of Brexit could get more complicated. Devolved bodies have already begun to innovate with their own openness policies, as the last NAP recognised. A set of devolved ‘plus’ institutions could easily make some very interesting regional variation in openness across the UK (if, of course, they all stay in the UK).