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Research on Open Data and Transparency


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How Parliament’s campaign of attrition forced the government to open up about Brexit

Brexit_WEB

The issue of whether the government would allow Parliament a vote (it seems as though it will) and whether any such vote will be meaningful (it won’t be) has dominated Brexit coverage since the referendum. This has been a distraction from the main event – not least because the EU Withdrawal Act makes any vote meaningless. When the Conservatives and Labour whipped their MPs in the same direction, they whipped away Parliament’s power and gave it to the EU and UK government.

The place where Parliament has actually had most success is not  taking back control of what’s happening, but actually finding out what’s going on (or not going on). This was symbolised by the apparent success last month in forcing the government to release the 58 studies about the likely economic impact of Brexit.

MPs and the public first got wind of these ‘studies’ back in the summer when David Davis mentioned them on the Andrew Marr show: (see p.11 of this transcript):

“That  data’s  being  gathered,  we’ve  got  50,  nearly  60  sector  analyses already done, we’ve got planning work going on in the customs,  we’ve  got  planning  work  going  on  22  other  issues  which  are  critical,  127  all  told.  All  of  them  have  got  to  be  grounded  before  we come to a conclusion what it looks like.”

Repeated FOI requests for the studies by the MEP Molly Scott Cato and others failed, as the government appeared to argue it would undermine their ability to negotiate (and there are certain protections under FOI that might support this rather bland statement).

In November, Labour then used an obscure piece of parliamentary procedure to force the government into releasing its Brexit impact studies, as this blog by Andrew Defty explains. Using a motion for a return, Labour ‘transformed a non-binding opposition day motion into a binding resolution of the House’ (see more on these here in this 1999 report Section 3 (ii)).

However, the government then responded with an admission (or confession) that the ’50’ or ‘60’ – or possibly 127 – pieces of analysis are not what they seem: “As we have made clear, it is not the case that 58 sectoral impact assessments exist”. The statement went on to explain that the papers are a

“… wide mix of qualitative and quantitative analysis, contained in a range of documents developed at different times since the referendum. It examines the nature of activity in the sectors, how trade is conducted with the EU currently in these sectors and, in many cases, considers the alternatives after we leave as well as looking at existing precedents. This analysis ranges from the very high level overarching analysis to sometimes much more granular level analysis of certain product lines in specific sectors.”

At some point, a discerning reader could conclude, Davis was being ‘economical with the truth’. Either the impact studies exist (or existed) in some form, or they didn’t. It now seems that ‘Brexit studies’ doesn’t mean, as it were, ‘Brexit studies’. And whatever they are, they won’t be fully released (though the ultimate power may lie with the DExEU committee here).

Back in July of 2016, when Brexit meant Brexit and Theresa May had a majority, her new government asserted that it was for government to declare and trigger article 50 and then conduct the subsequent negotiations in a confidential way. The government were keen to keep things closed and secret. There was to be, famously, no running commentary.

In September 2016 Davis, the new secretary of state for Brexit, made it clear the limitations of any openness, saying he would be “as open as I can. More accurately, the Government will be as open as they can”. He argued that it may be ‘the most complicated negotiation ever’ but there would be ‘debates, reports by Select Committees and hearings’ and he promised:

“We will certainly match and, hopefully, improve on what the European Parliament sees. At given times, that will be tactical, I am afraid. I do not want to be boring about it, but this is likely to be the most complicated negotiation of modern times. It may be the most complicated negotiation of all times. By comparison, Schleswig-Holstein is an O-level question. We will not always be entirely free agents, but we will be as open as we can be.”

He also spoke of the impossibility of secrecy:

“… I will seek to be as open as is possible…Even were I to decide that I was going to behave like Rasputin and keep it all entirely secret, I would fail. It would not be possible… other Governments would do it. In the Government’s own interest, it is a better idea to be more open than is perhaps traditional, but always subject to the overriding point that we cannot pre-empt the negotiation.”

 In October the report from the House of Lords EU Select Committee took a rather stronger view of what right Parliament had (2016).

“One of the key objectives of parliamentary scrutiny is to ensure transparency – to cast a light on the actions of the executive. It is, we suggest, essential that many elements of the forthcoming negotiations – for instance, negotiations affecting acquired rights, or future cooperation between UK and EU police forces—should be conducted transparently.” (House of Lords EU 2016a).

Since then, Parliament has been the key to shining more light on Brexit. The sheer volume of investigation and scrutiny can be seen below:

Scrutiny of Brexit by Parliament, 13 July 2016 – 19 June 2017

Written questions 490
Written answers 819
Select committee inquiries begun 55

(House of Commons/UK Parliament: IFG)

Select committees launched more than 55 inquiries into various aspects of Brexit, though some were curtailed by the June 2017 General Election. In December 2016, the Liaison Committee was the first body to subject the Prime Minister to detailed scrutiny of the government position on Brexit revealing, perhaps inadvertently, that her approach was one of secrecy and that she appeared unaware of how exactly article 50 functioned. In one day in November 2017, in a ‘bumper day for select committees’, six select committees questioned different officials and Ministers on various aspects of Brexit. In March 2017, the new DExEU Select Committee scrutinised the government’s objectives and positions and questioned Davis, who confessed there had been no preparation for what would happen in the event of Brexit talks breaking down and that any financial settlement will favour the EU. The debate around the European Union (Notification of Withdrawal) bill from January to March 2017, triggered by the Supreme Court ruling, also gave a focus to discussion and debate and revealed more about the prospects and government plans.

All this pressure has given us far more information that the government seemed prepared to give before. We have had two major Prime Ministerial speeches and one, heavy, evidence session (with another due December 20 this year). Ministers have appeared and explained (and sometimes contradicted each other) regularly. We’ve also had a Brexit White Paper (that, you’ll be pleased to know, gave us all 14 weeks holiday a year).

Brexit has not, of course, been fully opened up by Parliament. The government refused some of the more transparent options, such as a cross-party approach via Royal Commission, in 2016 and again in 2017. The January White Paper was described as ‘largely devoid of content because the UK government’s concern about negotiating secrecy’ and offered ‘as few concrete positions as it is possible to imagine’. The government also resisted Parliamentary motions to mandate regular updates on Brexit to Parliament in the future.

Nevertheless, Parliament was key in forcing appearances. Far more is known than before, and benchmarks have been lain down with the legislature’s action leading to far greater understanding of the government’s views and preparation. And here is what has proved so damaging: the lack of preparation. Westminster’s digging and pressure have revealed not what has been done but what has not been done. There is no hidden grand plan, but a void at the heart of government thinking on the most important event in the last 60 years. And this is what the ‘58’ studies symbolise. As General Montgomery once said: “I have not been told of any master plan and I must therefore assume there was none.”

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My FOI: A list of all the FOI requests rejected as ‘vexatious’ since 2016

index

DEXEU hasn’t covered itself in glory in FOI terms, as the IFG have demonstrated. So I asked what requests had been labelled vexatious.

My FOI, made via WhatDoTheyKnow, asked

‘Dear Department for Exiting the European Union,

This is an FOI request for a list of all the FOI requests (in particular the detailed question or questions in each request) rejected as ‘vexatious’ since 2016.

Yours faithfully,

Ben Worthy’

Here’s the response:

Annex

Reference and Wording of request

DEX000313

* Please provide a breakdown of the £533 cost of a trip by David Davis to Belfast from Aug 31 to Sep 1, 2016. In providing the breakdown, please disclose the cost of the flights, the cost of accommodation and the cost of all meals. Please also provide copies of all receipts, bills and invoices relating to the trip.

* Please provide a breakdown of the £273 cost of a trip by David Davis to Dublin from Sep 8 to Sep 9,Please also provide copies of all receipts, bills and invoices relating to the trip.

* Please provide copies of all receipts relating to subsistence and meal claims by Oliver Robbins in relation to: * a trip to Paris/Rome starting on August 23; * a trip to Warsaw/Budapest starting on August 3;

* a trip to Brussels on September 5;

* a trip to Brussels starting on September 21;

* Please disclose the cost of the business premier rail travel relating to trips by Oliver Robbins starting on July 19, September 5 and September 21.

DEX000453

I would like all correspondence of decisions on the attendance of Ministers and Secretaries of State for European Union Exit and Trade Cabinet Committee meetings since July 2016.

DEX000454

I would like details of any minutes, agendas or briefings sent by the Cabinet Office to the Secretary of State for Wales, regarding the European Union Exit and Trade Cabinet Committee since July 2016.

DEX000455

Under the freedom of information act, I would like all correspondence of decisions on the attendance of Ministers and Secretaries of State for European Union Exit and Trade (Negotiations) Cabinet Sub-Committee meetings since

July 2016.

DEX000456

Under the freedom of information act, I would like all correspondence of decisions on the attendance of Ministers and Secretaries of State for European Union Exit and Trade (International Trade) Cabinet Sub-Committee meetings since July 2016.

DEX000457

Under the freedom of information act, I would like all correspondence of decisions on the attendance of Ministers and Secretaries of State for European Union Exit and Trade (European Affairs) Cabinet sub-Committee meetings since July 2016.

DEX000458

I would like details of any minutes, agendas or briefings sent by the Cabinet Office to the Secretary of State for Wales, regarding the European Union Exit and Trade (Negotiations) Cabinet Sub-Committee since July 2016.

DEX000459

I would like details of any minutes, agendas or briefings sent by the Cabinet Office to the Secretary of State for Wales, regarding the European Union Exit and Trade (International Trade) Cabinet Sub-Committee since July 2016.

DEX000461

I would like details of any minutes, agendas or briefings sent by the Cabinet Office to the Secretary of State for Wales, regarding the European Union Exit and Trade (European Affairs) Cabinet sub-Committee since July 2016.

DEX000462

Under the freedom of information act, I would like details of any minutes, agendas or briefings sent by the Cabinet Office to the Secretary of State for Northern Ireland, regarding the European Union Exit and Trade Committee since July 2016.

DEX000463

Under the freedom of information act, I would like details of any minutes, agendas or briefings sent by the Cabinet Office to the Secretary of State for Northern Ireland, regarding the European Union Exit and Trade (Negotiations) Cabinet Sub-Committee since July 2016.

DEX000464

Under the freedom of information act, I would like details of any minutes, agendas or briefings sent by the Cabinet Office to the Secretary of State for Northern Ireland, regarding the European Union Exit and Trade (International Trade) Cabinet Sub-Committee since July 2016.

DEX000465

Under the freedom of information act, I would like details of any minutes, agendas or briefings sent by the Cabinet Office to the Secretary of State for Northern Ireland, regarding the European Union Exit and Trade (European Affairs) Cabinet sub-Committee since July 2016.

 


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How Open is Britain in 2017 and Where Next?

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To celebrate International Right To Know Day, the Centre for British Politics and Public Life held a panel discussion on how Open Britain was. The UK has seen more than a decade of continuous openness reform, from Freedom of Information and Open Data and all sorts of information on gender pay gaps and experiments with election data. But where are we now?

Our panel of experts, Martin Rosenbaum (Journalist, BBC), Rosemary Agnew (Former Scottish Information Commissioner and now Scottish Public Services Ombudsman) and Professor Sarah Childs (Professor of Politics and Gender, Birkbeck College) debated how open the UK really is in 2017 and where we could go next.

If you want to know about the openness of Britain’s political candidates and restaurant hygiene, why FOI is not always enough and how Brexit could take us backwards, listen to the podcast below.

Listen on Sound Cloud https://soundcloud.com/british-politics-centre/how-open-is-britain-in-2017-and-where-next

For further reading

 


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Does FOI Create A Chilling Effect? Evidence from the UK

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Michael Gove got caught doing it. Now ‘family members / senior advisers’ Ivanka Trump and Jared Kushner have been found using private emails with another four senior White House staff, including Steve Bannon, also alleged to do the same in what CNN calls a colossal blind spot. But is there really a ‘chilling effect’ on records because of FOI? Does an new Act lead to people not writing things down, using the phone and private emails more and ‘emptying out the archives’?

The negative effect of FOI on policy is a long story, going back to the 1980s in Australia when it was feared FOI would lead to ‘hidden filing’ or ‘post-it-note’ cultures In the UK, Tony Blair claimed in 2010 that FOI had led to more caution over recording decisions, concluding the law was

not practical for government…if you are trying to take a difficult decision and you’re weighing up the pros and cons, you have frank conversations…if those conversations then are put out in a published form …you are going to be very cautious. (Guardian 1/9/2010)

David Cameron also hinted that it was disrupting decision-making and was, as he put it, ‘furring up the arteries of government’. Former Cabinet Sectary Gus O’Donnell claimed it had ‘hamstrung’ government, though when pressed he could only offer three isolated examples-two hypothetical and one based on the coalition negotiations. The claim is also regularly made at local government level. The current UK Information Commissioner, herself an archivist, is taking it sufficiently seriously to push a new legal duty to record.

But is it really happening?

There has been plenty of high profile examples. There’s also some good evidence from Sweden, home of the world’s first FOI –ish law in 1766, that there is what they label an ‘empty archives phenomena’.

But whether it’s happening wholesale across government is another matter. The UK Justice Committee looked into it 2012 but ‘was not able to conclude, with any certainty that a chilling effect has resulted from the FOI Act’. The Chairman of the 2015-2016 UK independent review, that looked into chilling as part of its remit, chairman concluded that he ‘struggled to find is actually cases, clear cut cases, where a lot of information has been released and discussions of the kind … have been damaging’. Research at central government found there was concern and isolated instances but no general trend and for local government there appears to be a few exceptional cases but nothing systematic. Just to make it more complex, in Scotland and England there was some evidence of a positive professionalising effect where staff kept better, more professional records because of FOI. Our own studies found that many officials were more concerned with the consequences of not having a record if their superiors or, even worse, a judge came looking for it.

There are two problems with finding out if any chilling really is happening. The first is the difficulty of proving or disproving it. There’s lots of anecdote but not much hard evidence. By its nature it is very difficult as proving it means proving a negative (i.e. something didn’t happen), and means asking people to admit unprofessional conduct. One study found many comments were jokes or light hearted quips.

Second, it’s also very difficult to prove that any changes are a result of FOI. Isolating and disentangling FOI as the cause of the problem is almost impossible. Fear of leaks, the arrival of new technology, new decision-making styles and the key question of resources all influence how and if records are kept.  Concerns over the non-recording of information go back far into the past. As the Justice committee pointed out, the 2004 Butler report raised serious concerns over Tony Blair’s use informal meetings and ‘sofa government’ a year before FOI came into force.

The problem was rather wonderfully summed up during the UK independent review hearings when two ex-Home Secretaries, Michael Howard and Jack Straw, cross-questioned the ‘chilling claiming’ Lord O’Donnell, a former Head of the Civil Service:

LORD HOWARD: Do you have any direct experience of ministers avoiding putting things into writing in order to escape the provisions of the legislation?

LORD O’DONNELL: I mean, in a sense, how could I? Minister A phones Minister B on his mobile phone and I’m not involved in that process at all. That’s what I mean. The whole evidence thing you’re asking for is virtually impossible …

LORD HOWARD: Not at all. You might have suggested to a minister that a meeting’s necessary to discuss a particular decision and you might have been told, ‘No, I don’t think we need one’ and you might be able to form quite a good judgment that that was the reason why the meeting wasn’t taking place. Have you ever come across something like that?

LORD O’DONNELL: Yes, is the short answer, and yes, I’ve had occasions where – I mean, I think the area of contingency planning. You know, I think there are various reasons why ministers are very reluctant to commission planning for outcomes that they do not want to happen.

JACK STRAW: But is that directly related to FoI?

LORD O’DONNELL: That’s a combination of FoI and leaks, let’s be honest.

JACK STRAW: Yes, because I can recall in the early part of the 1997/2000 government, well before FoI was a serious prospect in people’s minds, that there were some ministers who were very reluctant to go in for contingency planning on any basis because they were just reluctant to. It was nothing to do with FoI. (Independent Commission on Freedom of Information 2016a, 84–86)

 

It is impossible to say if there is or is not an effect. It is likely there is some chilling at the margins and obviously much more skullduggery from politicians than we know of but it is not as widespread as some claim.

The difficulty is that the myth could become reality. If people believe it is happening, are they more likely to do it? The previous Information Commissioner warned that ‘if mandarins keep talking about a chilling effect, theirs is a self-fulfilling prophecy’. But the reassuring thing is that, as with many conspiracies, getting caught can carry a high price-just ask Hillary Clinton.

Ben Worthy is a lecturer in politics based at Birkbeck College, University of London and is author of The Politics of Freedom of Information: How and why governments pass laws that threaten their power published by Manchester University Press. You can read chapter 1 here.

Post originally in the IRM Newsletter

 

 


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How Open is Britain in 2017 and Where Next? 28 September 2017 – 18:30:

How Open is Britain in 2017 and Where Next?

Starts 28 September 2017 – 18:30
Finishes 28 September 2017 – 20:00
Venue G15 Malet Street Building, Birkbeck College
Free entry; booking required

Event description

In the last decades British government and society has been opened up in all sorts of new ways. From the Freedom of information Act to Open Data and from surgeons’ performance rates to ownership of UK businesses, we know a great deal more about what is being done and spent in our name. New initiatives promise new openness about everything from gender pay gaps to executive bonuses. Exposés such as the MPs’ expenses scandal show what effect the new openness can have.

But how open is Britain? How well do these new systems of openness and streams of data work? Can they be avoided or turned to politicians’ advantage? This seminar asks a panel of experts to discuss how open Britain really is and to look to the future and ask, as Britain moves into the opaque world of the Brexit negotiations and faces new and uncertain post-EU world, how open will the new UK be?

Panel:

Martin Rosenbaum (Journalist, BBC)

Rosemary Agnew (Former Scottish Information Commissioner and now Scottish Public Services Ombudsman)

Professor Sarah Childs (Professor of Politics and Gender, Birkbeck College)

This event will be chaired by Dr Ben Worthy, whose book The Politics of Freedom of Information: How and Why Governments Pass Laws that Threaten Their Power was published in 2017.

Sign up here https://www.eventbrite.co.uk/e/how-open-is-britain-in-2017-and-where-next-tickets-37457675917


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Gender Pay Gap Transparency: Will It Work?

Gender pay gap two

In July this year the BBC, with a bang and probably a muffled whimper, released details of its highest earners. It predictably provoked outrage at the overpaid but also, less predictably, re-ignited the debate on the gender pay gap. Political leaders were quick off the mark to condemn the stark gap between male and female presenters. Theresa May criticised the BBC for paying women less for doing the same job as men and Jeremy Corbyn suggested a pay cap.

How Big is the Gender Pay Gap in the UK?

Measuring the gap is tricky. Here’s a summary from the ONS of some of the key figures for the UK in 2016:

  • Average pay for full-time female employees was 9.4% lower than for full-time male employees (down from 17.4% in 1997).
  • The gap for all employees (full-time and part-time) has reduced from 19.3% in 2015 to 18.1% in 2016 (down from 27.5% in 1997).

So the gap is nearly 10% or 18% depending how you measure it. This FOI request shows how the gap has altered in the past decade or so in the UK. The pay gap is high, and higher than the UK, in many other parts of the EU, where the UK sits about seventh from the top: ‘across Member States, the gender pay gap varied by 21 percentage points, ranging from 5.5 % in Italy and Luxembourg to 26.9 % in Estonia’.  To get some sense of the scale of the problem, in 2015 ‘women’s gross hourly earnings were on average 16.3 % below those of men in the European Union (EU-28) and 16.8% in the euro area (EA-19)’.

Gender pay

So what’s being done?

Something, finally. Successive governments have been determined to open up gender pay. Gender pay transparency is actually a Labour policy from long ago in 2010. Theresa May’s sound and fury has been heard before. Back in 2010 a certain Theresa May, writing in the Guardian no less, already claimed she was ‘clearing a path towards equal pay’ in 2010.What she forgot to say was that the Conservative-Liberal coalition she was part of didn’t actually engage the requirement to publish gender pay, contained in section 78 of (Labour’s) Equality Act of 2010. They wished to pursue a ‘voluntary scheme.’ Alas, few volunteered. Four years into the scheme only 4 companies had reported.

David Cameron, in a second wind of revolutionary ardour, committed to engage mandatory reporting (5 years after not doing so). This would ‘eradicate gender pay inequality’. All companies over 250 employees would have to publish the data. As of April 2017 companies have a year to produce the data and a written statement explaining, if there is a gap, what action will be taken. After 2018 organisations not publishing will be contacted by the Equalities and Human Rights Commission. The light of transparency will, it is hoped, end pay inequality.

How’s it going so far?

Although a number of companies have been voluntarily publishing the data, as of May 2017 only 7 companies had reported. An email from the GEO from July informed me there were now 26 and, according to a spreadsheet on data.gov.uk, there are now 40.

That’s from an estimated 7,000 companies with 250 or more employees. On a very generous rounding up, that means only 0.57% companies have reported. At this rate, if the Equalities and Human Rights Commission must send out notices next April, they’d better fire up the old email wizard or buy plenty of stamps.

There is also concern over the coverage of the policy, as this paper argued:

Only around 6000…of the 4.7 million businesses in the UK have more than 250 employees. Thus, around 59% of employees would be unaffected by the provisions if reintroduced in their current form.

The government calculated that the pay gap reporting would cover 34% of businesses with a further 12% covered by regulations for public bodies, meaning ‘approximately 8,500 employers, with over 15 million employees’ would be opened up.

The Women and Equalities Select Committee argued that the data needed to be broken down by age and status, and applied to companies with less than 100 employees-moving to 50 in the next two years (the government argued smaller businesses may find it ‘difficult to comply due to system constraints’). May appeared to promise further action on gender pay before the General Election and there was a mention of more data in the manifesto but, like much in that doomed document, we’ll probably never know what, if anything, was intended.

What will publication do?

On a practical level much may depend on how the data is published and who accesses or uses it. Underneath this is a serious question for all transparency policies: what exactly will publication do? While opening up such data is useful, measuring gender inequality is highly complex and a ‘moving target’ and is caught within wider issues of female representation in public life, professions and boardrooms. There is a long way between publishing data on a problem and ‘eradicating’ it.

In the case of the BBC, the controversy has led to a letter and high profile lobbying but will it lead to real change? Tony Hall has set a deadline for action (2020) and promised representation and consultation. Now FT journalists may strike over it and Sheryl Sandburg has weighed in.

The former Secretary of State for Equalities spoke of how publication of gender pay gaps would have benefits in terms of ‘transparency, concentrating the mind and helping people make employment decisions’, all of which are either a bit tautological (transparency will make everything more transparent) or vague. More worryingly, a survey for the Young Women’s Trust found that many business were unconvinced ‘44 per cent of those making hiring decisions say the measure introduced last April will not lead to any change in pay levels’. In the 2016 the Women and Equalities Select Committee concluded that pay publication focuses attention on the issue but is not a solution: ‘It will be a useful stimulus to action but it is not a silver bullet’ and recommended that ‘the government should produce a strategy for ensuring employers use gender pay gap reporting’.

As the committee put it, openness is ‘a first step for taking action rather than an end in itself’. It is hoped that publication could drive up pay and standards-though the evidence of what publishing pay generally does is rather mixed (publishing executive pay appears to push overall pay up not down). Companies could be embarrassed into action but could, equally, ignore it, wait for the storm to blow over or kick it to the long grass with a consultation.

As with all sorts of openness, mandating publicity is only the start. Gender pay data must not sit on a spreadsheet but needs to wielded, repeated and find a place as a staple, symbolic benchmark-and become, like the ‘scores on doors’ restaurant star rating, a mark of quality or reason to avoid.

Images from UK government equality report and EU gender pay gap pages

 


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Prime minister of secrets: The short, closed premiership of Theresa May

Theresa May will be remembered as a prime minister who liked to keep things hidden. What’s less often commented on is how her obssession with secrecy explains why everything went so badly wrong….

Some claimed that Theresa May would be different. As home secretary she opened up police stop and search data, extended FOI to the Police Federation, and championed anti-corruption. Unlike Andrea Leadsom, she even published her own tax returns.

Sceptics told another story. In the Home Office, May was much keener on opening up her enemies than herself. She had a tendency to information control and secrecy and liked to work with a closed circle of trusted advisors, letting nothing out. Cameron’s likening of May to a submarine in the Brexit campaign, disappearing when trouble brewed, could be applied to her whole Home Office career. She sought to hide Border Force cuts from parliament in 2016 and, more famously, deflected blame onto officials in 2011 during a career threatening crisis.

It was these habits she took with her to No.10.

See the rest of the piece here on politics.co. uk