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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

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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

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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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Up, Down or No Change: What Happens When You Publish Salaries?

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In a blaze of publicity, the BBC has now published the pay of its top earners (you can see the full 16 page annexe here). Given the government is also committed to opening up corporate pay across the private sector, what actually happens when you publish salaries? Does the force of terrible headlines and an outraged public help reduce out of control pay packets? Or is the result, as the BBC Director General warned, really inflationary, driving up pay?

It is, of course, quite tricky to measure this sort of effect. This study of what happened when academic pay in Canada was made public concluded that publishing had no effect on pay levels (it also said academics weren’t paid enough. I digress). However, other evidence, such as this piece on opening up German executive pay, found a so-called ‘ratchet effect’ with disclosure increasing overall salaries by creating upward pressure from colleagues who demand to be paid better. One detailed study of CEO pay from the 1930s found openness had a generally upward effect:

 …disclosure did not achieve the intended effect of broadly lowering CEO compensation. If anything, and in spite of popular outrage against compensation practices, average CEO compensation increased…The evidence suggests an upward “ratcheting” effect whereby lower paid CEOs…experienced relative gains while well paid CEOs…were not penalized (Mas 2016, 1).

It concluded that only ‘the most salient and visible wages’ were ‘restrained’-so Gary Lineker and Chris Evans could get a wage cut but everyone else could get an increase. So the evidence actually says, at the very best, publishing has no effect on driving pay downwards and could well drive it upwards. The focus on levels of pay also obscures other important issues around performance and exactly how people are paid. Perhaps the bigger story is over the BBC gender pay gap and perhaps publication could help close a pretty scandalous discrepancy (blog on its way on this).

However, this evidence only takes us so far. Pay levels in the entertainment sector may work very differently from academia (insert entertainment related joke) or ‘normal’ CEOs. The BBC is rather a unique institution and any popular judgment could be bound up in views of the BBC itself, which the public appear to love. This could account for the fact a full quarter of those asked think the pay is OK and only 53% think it’s too high. But maybe public opinion about pay is quite nuanced. Even this poll about MPs’ salaries in 2013 found 60% of Britons think Members of Parliament get paid too much but 28% felt MPs were ‘paid about the right amount’ and a full 5% ‘think Members of Parliament are paid too little’.

The difficult of measuring anything is about what to measure it against-what’s the benchmark being used? Compared with the average UK salary of £ 28,200 then the amounts are eye-watering. However, the pay of almost anyone of note in the UK is compared with the Prime Minister, whether it’s Chris Evans, 9,000 public sector workers or 24 employees at Kent and Medway council. The problem for any comparison is that the last two Prime Ministers have, bless them, taken a 5% pay cut and a self-imposed pay freeze since 2010 and so Theresa May has to scrape along with a measly £150,402  instead of the £152, 532 she could have won. For any Prime Minister there is, remember, a free central London house in a very desirable location plus weekend ‘chillin’ pad and £64,000 pension. Luckily for Theresa May, a Prime Minister is entitled to a ‘pension equal to one half of their final salary when the leave that office, regardless of…length of service’.

So, as with many eye-catching transparency reforms, it’s not clear exactly what will happen in the weeks, months and years after publication. Certainly there is a principled reason publishing such data. But the evidence suggests that there’ll be no great BBC pay cut and it could push some pay higher. Ironically, it could be worth a few days of Twitter storm each year for a nice salary boost.

 


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Friday lunchtime lecture: Brexit and open government in the UK – 11 months of May

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Come along to my talk

Friday 14 July 2017, 1:00pm – 2:00pm

Open Data Institute, 65 Clifton Street, London, EC2A 4JE

https://theodi.org/lunchtime-lectures/friday-lunchtime-lecture-brexit-and-open-government-in-the-uk-11-months-of-may

How has Brexit influenced the UK’s transparency regime and how, in turn, will openness will shape Brexit? There are three ways of looking at Brexit and open government: 1) possible changes to old policies and new ones being pushed, 2) the new Prime Minister either championing transparency or supporting secrecy, and 3) the openness of the Brexit process itself, which has so far struggled between the executive’s secretive prerogative powers and the legislature’s rights to know.

May’s government will be seen as one that prized secrecy but conceded openness, an object (and abject) lesson in how hard it is to keep government closed in the 21st century. The May administration 2016–2017 is likely to be remembered as a secretive one, headed by a Prime Minister that wished to govern through confidentiality and closed networks. There were some high-profile openness policies, but they were inherited and slow.

In this lecture, Ben Worthy will explain how Brexit shows how badly the approach misfired. The government’s plan of no ‘running commentary’ and secrecy was undermined by the Supreme Court, the UK Parliament and the EU Commission – who all forced greater transparency and greatly limited May’s room for manoeuvre and concealment. The three institutions – creating and using ‘institution friction’ to open up government – also exposed the government’s lack of preparation and undermined the UK’s credibility and leverage even before Brexit began.

You can read the paper here

 


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New Paper: Brexit and Open Government in the UK: 11 Months of May

Westminster Terrorist Attack Statement

This paper examines how Brexit has influenced the UK’s transparency regime and how, in turn, will openness shape the UK’s Brexit process. There are three ways of looking at Brexit and open government: through possible changes to old policies and the pushing of new ones, through the new Prime Minister championing transparency or supporting secrecy, and the openness of the Brexit process itself, which so far has seen a struggle between the executive’s secretive prerogative powers and the legislature’s rights to know.

May’s government will also be seen as one that prized secrecy but conceded openness, an object (and abject) lesson in how hard it is to keep government closed in the 21st century. The May administration 2016-2017 is likely to be remembered as a secretive one, headed by a Prime Minister that wished to govern through confidentiality and closed networks. Though there were some high profile openness policies they were inherited and proceeded slowly, if at all.

Brexit reveals how badly the approach misfired. The government’s plan of no ‘running commentary’  and secrecy was undermined by the Supreme Court, the UK Parliament and the EU Commission, who all forced greater transparency and greatly limited May’s room for manoeuvre and concealment. The three institutions, creating and using ‘institution friction’ to open up government, also exposed the government’s lack of preparation and undermined the UK’s credibility and leverage even before Brexit began.

Read the paper here https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2988952