opendatastudy

Research on Open Data and Transparency


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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

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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


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United Kingdom End of Term Report 2013-2015

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My OGP IRM report is here for public comment on the UK government’s Second National Action Plan. Here’ s a summary:

The UK’s second action plan commitments on beneficial ownership, aid transparency, Sciencewise, and OpenDataCommunities are some examples of major contributions to government openness. Four commitments were closer to completion. However, progress overall in the rest of commitments was sustained from the assessment at mid-term. The third action plan has several commitments that flow from two priority areas and star commitments including beneficial ownership and extractives.”

You have until 18th January to offer any thoughts either via the page or by email to to irm@opengovpartnership.org.