opendatastudy

Research on Open Data and Transparency


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Evidence to the Public Audit and Post-legislative Scrutiny Committee

 

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You can watch me giving evidence to the Public Audit and Post-legislative Scrutiny Committee hearing on post-legislative scrutiny of the #FOI (Scotland) Act with Prof kevin_dunion, Dr karen McCullagh, alistair_sloan and Prof Colin Reid

https://www.scottishparliament.tv/meeting/public-audit-and-post-legislative-scrutiny-committee-october-3-2019


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Monitoring, Democracy and Citizens: Some thoughts

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Over the last decade a host of new formal and informal ‘political observatories’ watch and hold government to account (Schudson 2010). It has been argued that ‘scores of power-scrutinising and power-checking mechanisms’ create a ‘monitory democracy’, a ‘continuous surveillance’ by formal and informal bodies (watchdogs or observatories) which ‘keep arbitrary power on its toes…taming its excesses and evils’ (Keane 2018, 14).

These new ‘power-monitoring institutions’ draw on a growing armoury of low cost transparency tools (Schudson 2015, Keane 2009, Welzel and Dalton 2016). They range from formal, legal openness regulations all the way to the ‘radical transparency’ or ‘vigilantism’ of WikiLeaks. They can be general or targeted, sector-specific or body-specific. Some parts of the new system are made up of formal oversight bodies such as auditors or inspectors while others, such as Open Data, offer structured means of accessing government information and data. Others are more dynamic and less controlled instruments, from social media to mass leaks. Together these bodies form part of the ‘unending, never finished public business of scrutinising and restraining power’ (Keane 2018, 18).

Though it is has been created piecemeal since 1945, such monitoring has taken on a new force in the last few decades, powered by the growth of networks and the information revolution. Whether it is a new layer ‘atop’ the old institutions of representative democracy, exists in parallel or supplants it is unclear (Keane 2009: 2018). Keane argues that such monitoring replaces the ‘hollowed out’ older institutions and party systems and offers a new means  of checking power, over and above the static and limited accountability created by elections (see Mansbridge 2009).

The full effect of these hybrid formal and informal oversight bodies is to create a ‘permanent’ and ‘continuous’ oversight of government (see Hooghe, M., & Dejaeghere 2007; Schudson 2015, 237). They are closely related to Rosanvallon’s (2008) conceptions around ‘counter-democracy’ and the use of tools of ‘prevention’, ‘oversight’ and ‘judgement’ to counter institutional power.

Whether such activity is positive or negative remains a matter of some dispute, as does the question of whether such action merely ‘monitors’ government or becomes a true locus of ‘counter-availing’ democratic power. It is based around a series of assumptions around how institutions, and those monitoring and monitored behave, including the need for clear institutional narratives and relative civic agreement (Graves 2017).

Questions and issues for the project

Theory

The concept of monitory democracy is rather unclear and undeveloped in number of ways. First, for monitory democracy to have an effect requires a certain set of behaviours from those monitored. In terms of legislatures and MPs, their behaviour has always been ‘quasi performative’ and open (Pitkin 1974). The presentation of the ‘self’ has always been a ‘promissory note’ whereby members ‘stockpile explaining ammunition’ (Fenno 1978, 142). Voting data, for example, has always been a cause of concern for members of legislatures, who fear what a few well informed voters obsessed with an issue could do (Fenno 1978). So the new data may mean a greater loss of control, especially if it easier to access, but the effect may not be so different from the past. It also depends very much on who does or does not use this data. A member would be far more concerned if members of the local party or very strong supporters were critical than, for example opponents in the local area (Fenno 1978). Similarly, media exposes of ‘rebellion’ could cut-either way.

Second, the exact outcomes are rather hazy-labelled as a kind of continuous ‘accountability’, through exposure or anticipated reactions, as well as the creation of ‘humility’ and limits on political behaviour (Keane 2018). There has also been some challenge to the idea it is ‘continuous’ but instead is only ‘good enough’ (see Lucas 2017). It may also have the opposite effect, especially with a complex body like Westminster. As Strathern (2000) argues, ‘visibility conceals’ for example, the ‘real facts’ of how an organisation functions, such as relationships, networks, skills and ‘invisible processes’ (314). Monitoring can also, by Keane’s admission, cause ‘conflict’, delegitimise and be used to ‘muck rake’ (see Keane 2013).

Monitory democracy seeks scrutiny, restraint and accountability, but there may be a long and weak link between them. If monitoring has taken place how does it then turn into something that restrains? Much depends on if those tools exists or work. To bring about accountability, restraint or change at Westminster monitoring must lead to, for example, shifts in voting patterns, attempted removal by parties or through recall laws. In fact, two of the three uses of the new UK Recall Act 2015 were driven by a ‘monitorial’ exposure of expenses and register of interests respectively, while one MP’s voting record was mention formally at least in one local party attempt to remove them (Dominic Grieve). In this sense, monitor democracy is not so remote from central democratic ideas of (i) anticipatory (ii) reactive (iii) exposure and appears tangled up in older forms of representation (Weale 2004).

Third, one major area left unclear is the central idea of representation-what does the rise of monitory democracy, used potentially by unrepresentative groups, mean for who, or how an institution represents? Does monitory democracy mobilise too much bias?

An alternative approach that could be used is to conceptualise monitorial democracy more broadly as producing and exposing new lines of democratic conflict and new spirals of battles, mobilising and involvement (Schattschneider 1960). Conflict is inherent in democracy. The heart of this conflict is the ‘long standing struggle between the competing tendencies towards privatising and socialising of conflict’ (Schattschneider 1960, 7). Attempts at exposure or closure ‘creates a chain reaction’ with a ‘fight is difficult to contain’ as different sides famously ‘mobilise bias’ (Schattschneider 1960, 2). Monitory democracy does this far more quickly than in the past, and opens up new areas to scrutiny and conflict. Looking at it through this lens should allow a wider view of the positive and negative impact.


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Theresa May and Boris Johnson: secrecy as statecraft?

During UK–EU Brexit negotiations, Theresa May pursued a determined path of concealment and non-disclosure. Envisaged as a way to protect herself against political opposition, enhancing her bargaining power vis-à-vis the EU and deliver policy promises, the strategy failed and contributed to the end of her premiership. Ben Worthy and Marlen Heide detail how her case illustrates the powers of increasing transparency expectations and the risks of concealment over longer times or around contentious issues. It provides a useful lesson for her successor.

Contemporary leaders are caught between expectations and obligations of transparency and the pressure to achieve tangible outcomes in complex and hostile political environments. Being open is a moral commitment and a way of building trust and legitimacy. Yet leaders still have powerful incentives and temptations to choose a strategy of concealment to protect their power, policy plans or reputation. As such, secrecy still features as part of leaders’ strategic repertoire. How does such an approach play out in an age of transparency?

Pursuing a strategy of secrecy can be a powerful instrument protecting leaders’ room for manoeuvre or power. It can be vital for protecting early or delicate discussions, especially around contentious policy issues. Frequently, secrecy also serves to minimise blame or conceal personal or political mistakes.

Secrecy can, in certain contexts, be a necessary, if not fruitful, way of leading. Concealment, however, comes with risks and downsides, undermining the benefits it is supposed to bring. Secrecy provokes suspicion and speculation, and can raise demands for transparency or provoke leaks. Cover-ups of political mistakes can cause greater damage on a leader’s reputation in the long-term, creating stronger opposition and undermining trust. The can even prove terminal to a career, as the resignations of Eden and Nixon show. Finally, secrecy needs constant maintenance and can consume valuable time and political energy.

The case of Theresa May’s premiership shows what happens when a leader chooses a strategy of concealment in an age of transparency. It illustrates that context is key, and secrecy is more difficult for high-profile controversial issues, such as Brexit, and particularly damaging if exposed when it is tied to the reputation of the leader themselves, as was the case for May.

Theresa May: Prime Minister of secrets

Theresa May had a long-standing reputation for strict information control and a secretive working style. As Home Secretary between 2010 and 2016, she had a ‘preference for working with a close team of advisers [nicknamed the Chiefs], often not bothering to share information with Number 10 or other ministers’. She avoided publicity and scrutiny when problems threatened, causing David Cameron to call her ‘the submarine’. May ‘survived as home secretary for six years partly because she held a tight grip over information flows’ and twice (in 2011 and 2016), blame avoidance and information control saved her career.

As a Prime Minister, May tied her reputation to her ability to successfully negotiate Brexit and, in turn, Brexit to secrecy. She made it clear that her approach was based on strict confidentiality by saying there will be no ‘running commentary’ on the negotiations. May was warned in late 2016 that ‘silence is not a strategy’. In her case, concealment was doubly risky, since there was no substantive policy to protect.

In the short-term, May’s approach temporarily preserved her room for manoeuvre, and her power over a divided party. Many of her big decisions – triggering article 50 or calling a snap election – were taken in small, secret groups. Her avoidance of the press for anything other than set-piece interviews or speeches helped protected her reputation for competence for some time, at least until the election campaign of 2017 shined a dazzling, brutal, light on her abilities.

May’s secretive approach came under pressure domestically. For over two years, Parliament used all the tools at its disposal to force greater openness around Brexit. MPs and committees sought to open up Brexit. Between 2016 and 2018 select committees launched more than 108 inquiries into various aspects of Brexit, as well as creating a new, unusually large, DEXEU committee to scrutinise the negotiations. The ‘publicity spotlight’ at committee hearings revealed ministerial contradictions or confusion. In one day in November 2017, for example, six committees simultaneously questioned six different officials and ministers about Brexit.

One key symbolic battle concerned several government-produced studies on the impact of Brexit. Their existence first became known in the summer of 2017, triggering several requests for documentary access. After FOIs were refused, in November 2017 Labour used an obscure piece of parliamentary procedure, a Humble Address to Her Majesty, to force the government to release them. Other key pieces of information that the government clearly wished to keep secret, from other assessments to legal advice, were forced out of them or informally disclosed. Alongside the more spectacular battles was a daily drip of disclosure. Parliamentary pressure through questions, statements and government scrutiny meant, as the Chair of the Exiting the EU committee put it, ‘we learn something new about the potential impact of Brexit every day’.

At the same time, May’s divided government leaked continually. The leaks began straight away, and this BBC headline sums it up quite how bad things became: ‘Leak inquiry into leaking of letter warning about leaks’. This got worse after 2017 as May’s authority waned and Cabinet ministers openly undermined and contradicted policy. Behind the scenes, pressure from Conservative backbench MPs forced May to be more open and publish the first Brexit White paper in 2017 and another in 2018. By 2019 May appeared to have lost control of the policy, the narrative and with it her own reputation.

Boris Johnson: hiding in plain sight?

Interestingly, May’s successor, Boris Johnson, has followed the same path, with hidden plans for Brexit, made with a closed networks of advisers. He too has said he will deliver Brexit, but what the real plans are – or if there is plan – remains a mystery, with bluff, secrecy and lies swirling like a smokescreen.

In his leadership bid there were limited chances for questions from the press and few interviews. Once in power, Johnson appointed Dominic Cummings, who had been held in contempt of Parliament over his refusal to give evidence. There were early warnings that leaking would mean instant dismissal (though that was, of course, leaked). Most controversially there has been the lengthy prorogation of parliament, which means that Johnson has had a mere five days of scrutiny and avoided the now regular liaison committee appearance, which was scheduled for today, 11 September. Rumours abound of Johnson’s government not only avoiding scrutiny itself, but seeking to scrutinise and gather data on us.

The counter-pressure for forced openness has been even swifter for Johnson than May. Again, like May, Johnson now faces pressure to publish government assessments, this time around ‘Operation Yellowhammer’, its analysis of the impact of a no-deal Brexit (already leaks have undermined Johnson’s own claims). In the final moments before Parliament was prorogued, a humble address again struck, seeking messages, including texts as WhatsApp messages, around prorogation, sending a signal of the determination of opponents to break open the government’s plans. The motion covered:

All correspondence and other communications (whether formal or informal, in both written and electronic form, including but not limited to messaging services including WhatsApp, Telegram, Signal, Facebook messenger, private email accounts both encrypted and unencrypted, text messaging and iMessage and the use of both official and personal mobile phones.

The all-embracing nature was due to fears – based on leaks from anonymous public officials to Dominic Grieve MP – that decisions were being made outside of formal records and decision-making process (something Michael Gove has previous for). Even if the motion fails to turn up much information – and the government seems unwilling to provide any – it will create pressure for leaks and scrutiny from elsewhere. At the same time, the case in the Scottish courts may prove a crucial first step in undermining his power. It first revealed Downing Street documents showing Johnson’s planning back in August, including his insult that Cameron was a ‘girly swot’ (initially redacted, see image), and today the Court of Session has concluded the main purpose of prorogation was to hinder scrutiny, and so unlawful.

We’ll see when the UK Supreme Court considers the matter next week the full extent of the damage to Johnson’s reputation, and the extent to which such secrecy helps or hinders his power, his policy and his reputation. Hiding anything over a long period of time in a high polarised and partisan environment is almost impossible. May’s attempts to keep the Brexit negotiations secret amid such strong transparency pressure, and with a divided, leak-prone government, always appeared highly unlikely, if not futile. Secrecy triggered a negative spiral against a greater counter-pressure for transparency, exposing May’s policy. Using secrecy to protect a reputation means that any exposure has consequences for a leader’s credibility: May’s premiership came under even greater scrutiny, eventually crashing her reputation. For May, in the end, secrecy failed to deliver power, protection or tangible results. Will it for Boris Johnson?

This post has been updated to include a reference to the ruling of the Scottish Court of Session on prorogation on 11 September.

This post represents the views of the authors and not those of Democratic Audit. It draws on their article, Secrecy and Leadership: The Case of Theresa May’s Brexit Negotiations’, recently published in Public Integrity, 1-13.


About the authors

Ben Worthy is Senior Lecturer in Politics at Birkbeck College, University of London. He is the author of The Politics of Freedom of Information: How and why governments pass laws that threaten their power.

Marlen Heide is a Ph.D. student at the Faculty of Communication SciencesUniversità della Svizzera italiana at Lugano.


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Who is watching Parliament?

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Here’s some details of my new Leverhulme project Who is watching Parliament?

How well can we monitor what is happening at Westminster? What happens when we do? This project looks at how new data sources and web platforms have made it easier to monitor Parliament and its members. At the touch of a button, we can see an MP or peers’ voting record, browse their declared payments in the register of interests or scroll through their expenses. We can even see if people using parliamentary computers are editing Wikipedia. But what does this all mean for parliament and democracy?

An analysis of users of the website TheyWorkForYou.com found a tendency for people browsing Westminster data to focus on certain high profile MPs (such as the Prime Minister or leader of the opposition), members connected with controversy or certain high profile debates. Data are used to get a sense of a politician’s position on an issue, as done here with Boris Johnson and Jo Swinson.  It can also be used to open up what groups of members are doing-this analysis of Peers register of interests revealed that 1 in 5 members of the House of Lords are advising private business.

You can try yourself with a look at data on the new Prime Minister Boris Johnson. A browse of his voting record tells us he voted in favour of the Iraq war and civil partnerships but voted against the smoking ban, the banning of fox hunting and is strongly against the EU.  Elsewhere, his register of interests is packed with book royalties, speaking engagements and interesting looking donations.

But this data can only tell us so much. It doesn’t tell us why Johnson voted how he did-he said he supported May’s withdrawal Bill at the third attempt but did so ‘sadly’. Voting is only one part of what an MP does, and their decisions can be influenced by party, country, constituents, ambition and even conscience. We may not see the whole picture either-Johnson was formally warned for his ‘over-casual attitude to rules’ when he failed to declare a property on the register of interests.

Much may depend on who is looking at the data.  It can have a very different impact depending on if it is a curious member of the public fact-finding, a journalist hunting a story, a voter making up their mind or an aggrieved local party member looking to cause trouble. Voting record data has played a part in attempts at deselection. A lack of transparency around the register of interest and expenses have triggered two of the three recall votes since 2015.

So finally, the project asks what it all means for our democracy, now that we can monitor those we elect from the comfort of our own laptop. Some see the new flow of data as simply disruptive, proving ammunition for trolls and opponents. Other see it as part of a fundamental change, as we shift from an old style representative democracy to one shaped by a constant monitoring and surveillance. Does this monitoring mean more democracy or just more noise?

 


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Secrecy and Leadership: The Case of Theresa May’s Brexit Negotiations.

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A new topical piece on Theresa May: Heide, M., & Worthy, B. (2019). Secrecy and Leadership: The Case of Theresa May’s Brexit Negotiations. Public Integrity, 1-13.

Openness is essential for democratic leadership. It represents a moral commitment and an instrument for increasing trust and legitimacy. However, secrecy can still aid leaders by safeguarding their power and policies or preserving their reputation. This article examines Theresa May’s attempted use of secrecy around the UK–EU Brexit negotiations to protect her power, policy, and reputation between 2016 and 2019. While this approach appeared successful initially, over time, the counter-pressure for openness reversed its benefits. By the beginning of 2019, it was clear that May’s secrecy had limited her power, undermined her policy, and ultimately damaged her reputation. The analysis ends by drawing comparisons with Donald Trump, whose efforts to conceal his actions have produced the same counterproductive results. The case study illustrates how secrecy can create political space and bolster a leader’s reputation in the short term; however, over time, secret-keeping encourages leaks and greater scrutiny, exposes policies, and damages reputations, especially in increasingly transparent governance systems such as in the United States and the UK. Context is key, and secrecy surrounding high-profile, controversial issues, such as Brexit, is difficult to preserve. It can prove particularly damaging when it is tied to the leader’s reputation, as in May’s case.

 

Here’s a download link for the first 50…

https://www.tandfonline.com/eprint/9tYfyCe9K6QMIEDZJHdY/full?target=10.1080/10999922.2019.1609273


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New paper ‘Freedom of Information in Europe: Creation, Context and Conflict’

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Abstract

This paper takes an overview of the development and implementation of Access to Information laws across Europe. It argues that laws are shaped (and re-shaped) by their creation, context and the resulting conflict. It begins by examining the link between the passage of the legislation and the differences in their implementation. While there are common features and trends in ATI laws, they differ by the type of political systems, legacies of open or secret cultures, and the strength of political support or opposition. The paper ends by looking at how contestation and conflict continue to shape Europe’s ATI laws. Regimes go through phases of ‘expansion’ or ‘dismantling’ over time and systems are now increasingly shaped by the wider ‘ecology’ of openness in which they are placed (Knill 2012: Kreimer 2017).

Keywords: Access to Information, Freedom of Information, Europe

Download it here.

[image via Walter Keim]


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FOISA in Scotland-How’s it Doing?

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Being a bit of an FOI nerd, recently I asked myself how many FOI laws are in operation in the UK in 2019. Currently, by my count there are four: the Freedom of Information Act 2000 (‘FOIA’), the Freedom of Information Scotland Act 2002 (‘FOISA’), the Freedom of Information (Jersey) Law 2011 and the Isle of Man Freedom of Information Act 2015.

One of those laws, FOISA, is currently enjoying an MOT of sorts. As happened in the UK in 2015, the Scottish Parliament is examining how well FOISA is functioning.

Read my PDP analysis here FOI in Scotland – how is it doing – Ben Worthy, Birkbeck College UCL (Volume 15, Issue 5) (1)