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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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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


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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


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New Paper: Brexit and Open Government in the UK

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Abstract:

How will Brexit influence 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.

 

Download the paper here

 


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Scrutinising Brexit: the role of Parliament

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From European Union Committee 1st Report of Session 2016–17 HL Paper 33

Scrutinising Brexit: the role of Parliament (full report here):

        ‘Confidentiality and transparency

  1. 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 thatmany elements of the forthcoming negotiations—for instance, negotiationsaffecting acquired rights, or future cooperation between UK and EU policeforces—should be conducted transparently.
  1. At the same time, some of the most important and complex aspects of theforthcoming negotiations on a new relationship will be sensitive, commercially and politically, and will require a high degree of confidentiality. As the European Commission itself has noted, in the context of trade negotiations,“When entering into a game, no-one starts by revealing his entire strategy tohis counterpart from the outset”.5
  1. It is clear, therefore, that parliamentary scrutiny of the negotiations will haveto strike a balance between, on the one hand, the desire for transparency, and on the other, the need to avoid undermining the UK’s negotiating position.We note that parliamentary scrutiny has shown itself, in practice, to be highly flexible. The Intelligence and Security Committee of Parliament, though a statutory body rather than a Select Committee, conducts its hearings wholly in private; other Committees, such as the House of Commons Defence Committee, may receive confidential briefings, while private meetings arecommon across both Houses.
  1. We acknowledge that certain elements of the forthcoming negotiations,particularly those relating to trade, may have to be conducted confidentially. We would expect parliamentary scrutiny of the negotiations to strike an appropriate balance between transparency and  confidentiality, while achieving the over while achieving the overarching objective of holding the Government effectively to account.’

 

 


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Brexit and Open Government in the UK

number 10

Brexit, as we now know, means Brexit. But what does it mean for open government in the UK? On the surface, nothing changes. Almost all the legislation, from Freedom of Information to Data Protection, is bound up in UK law. The Open Data agenda will also continue to move along. Even the EU initiated laws lie Public Sector Re-use will be kept or, if anything is reversed, will somehow be preserved. There are three areas, however, where the tone or direction of open government may change: through new policies, the influence of the new Prime Minister and the Brexit process itself.

New Policies?

Looking across the UK’s 3rd OGP National Action Plan the top three commitments around Beneficial Ownership, extractives transparency and anti-corruption are all very much David Cameron’s personal agenda. Some of them are also very much in process, as the first Beneficial Ownership release last week shows (see this great analysis here of the first batch of data).

Theresa May’s speech in Birmingham has already indicated that she wants to continue in this general direction, with a commitment to ‘more transparency, including the full disclosure of bonus targets and the publication of “pay multiple” data’ and support for Cameron’s anti-tax avoidance drive.  The wider open data agenda is still ongoing. The FOI Act is also relatively safe (for the time being). Since it came into force in 2005 there has been an attempt to amend the law every 18 months or so. However, the FOI Commission’s clear endorsement of the Act and the sheer scale of the resistance to change has probably called a halt to any attempt to limit it in the near future-indeed the 3rd NAP proposed greater publication of data and some minor improvements.

Some new policies are very likely. New governments often promote openness to set a tone. This may be especially important for Prime Minister without a mandate facing the complications of Brexit. Openness represents an easy win to a new leader and is, perhaps, something that could help offset concerns over May’s rather, shall we say, less open actions as Home Secretary. Self-consciously ‘reforming’ administrations in the UK in 1997 and then in 2010, the US in 2009 and Italy in 2013 all made transparency a priority. It ‘signals’ a whole set of messages: that a government is prepared to be open and ‘democratic’ and is prepared to be monitored or overseen by the public.

New Prime Minister?

Political leaders set the tone and send out signals about the openness of their governments. Here’s my quick summary of how the U’Ks last three Prime Ministers did and to what extent they tried to pushback (i.e. limit) or extend openness.

UK Prime Ministers and Openness 2005-2016

Prime Minister Pushback Extension
Tony Blair Fees mooted (2006), (tacitly) supported attempt to have Parliament excluded (2007) Passed FOI Act in 2000
Gordon Brown Cabinet exclusion mooted, Excluded Monarchy from FOI (2010) Extension of 30 year rule (2009) and slight extension of FOI to new areas
David Cameron FOI commission (2015-2016) OGP especially Open Data agenda (2010 onwards) and Beneficial Ownership transparency (2013)

[N.B. this table doesn’t include a series of extensions of the FOI (Scotland) Act in 2012 and 2015-16]

While Tony Blair passed FOI then regretted it, Gordon Brown and David Cameron made strong speeches in favour of openness and pushed various transparency reforms. Cameron was especially committed to make his government the most open in the world, though in 2015 he set up an FOI Commission to restrict the Act and described the law as a ‘buggeration factor’.

So how about new Prime Minister May?

On the plus side, May as Home Secretary has supported and pushed the transparency within the UK anti-corruption agenda and was a key supporter of the long running Hillsborough campaign that exposed police corruption in the late 1980s. On a personal level she was quick to publish her own tax details. She has also extended FOI to the Police Federation and opened up police disciplinary hearings (though a cynic could argue that it is always easy to be transparent about your opponents).

On the minus side, May has been in the Home Office. Historically, the Home Office sunk many plans for greater openness. Recently it seems to have come a rather high third or so in the worst performing departments for FOI. This may, in part, be due to the often difficult and sensitive nature of some of the Home Office’s work.

May herself also has a less than liberal stance on various issues that runs against the idea of more openness: critics could well discern an authoritarian streak. She hasn’t always been transparent or accountable, seeking to hide Border Force cuts from Parliament in 2016 and, more famously, deflecting blame onto officials in 2011.

By far the biggest concern is over the repeated attempts on her watch to pass Investigatory powers legislation (aka ‘the Snoopers Charter’) that has led to ‘controversy around encryption, bulk data and hacking’and the right of various security services to carry out mass surveillance on the public. Serious privacy concerns have been raised by Parliament  with the UN warning it not compliant with International law. May’s refusal, in response to an FOI request, to release her own internet search history led to a backlash  from MPs.

Brexit and Beyond?

Brexit itself will soon become a huge transparency issue. There is an interesting debate about how much ‘information’ there was flowing in the referendum campaign itself, as this great blog post discusses. However, once negotiations begin there will be unprecedented pressure and scrutiny. Prime Minister May and the other 27 countries will probably argue for some secrecy in the delicate process but there will be a powerful case for more open door negotiations and, on a practical level, more leaks than you can imagine.

Here is the crux of the tricky debate between openness and closure. This fascinating study of the European Council of Ministers found openness can be good at regulating behaviour in negotiations but can encourage posturing or unnecessary ‘signalling’ to domestic audiences. Keeping discussions confidential will need to be balanced by a very difficult environment where the Leavers fear being ‘sold out’, Remainers hope for a messy compromise and the press and public demand to know what’s being done.

Looking further into the future, the impact of Brexit could get more complicated. Devolved bodies have already begun to innovate with their own openness policies, as the last NAP recognised. A set of devolved ‘plus’ institutions could easily make some very interesting regional variation in openness across the UK (if, of course, they all stay in the UK).