Farewell to Open Government

Since New Labour’s election victory of 1997, there has been a professed commitment from the UK executive to “open government”. The most tangible evidence of this was the Freedom of Information Act 2000, which enshrined a Labour manifesto commitment, though for various reasons it did not come into force until 1 January 2005.

I recall training seminars and discussion sessions for civil servants in advance of the 2005 start-date, and various degrees of enthusiasm for the new scrutiny to which government actions would be subject. On the more cynical side of the equation, we became familiar with the categories of exemption that might prevent disclosure of information, and with careful methods of drafting of responses that will be familiar to anyone who has ever made a request. Nevertheless, the Act represented a sea-change in the presumption of what the public was entitled to know: from then on, information was presumed to be disclosable unless there were very good grounds for it to be withheld.

Alongside the change in the legal position, there were other signs of a change in approach: much greater consultation on policy proposals, and a commitment to “better regulation”, including greater transparency and the publication of regulatory and other impact assessments. The momentum was such that it continued through the Brown administration, and David Cameron’s coalition government of 2010-15 embraced the concept with even greater enthusiasm. In the foreword of his 2012 plans for civil service reform, David Cameron declared “We have thrown open the business of government, shining the light of transparency on everything we do”.

One manifestation, in my own field of tax, was the 2010 commitment to a tax policy-making framework, itself the subject of consultation, and promising greater clarity of direction, scrutiny and transparency of intent. Even the traditional secrecy around the Chancellor’s budget was eroded in recent years – albeit by selective leaking rather than anything recognisable as a principle of openness.

The UK has not advanced as far in the direction of open government as countries with a longer tradition of openness, such as the Scandinavians. And it would be naïve to assert that the executive has consistently lived up to this relatively new ideal. There have been many and frequent shortfalls in practice, particularly during times of crisis such as the Iraq war. The working styles of individual ministers (including prime ministers) vary in how conducive they are to openness. And there are some hotly debated carve-outs in specific areas – typically where the principle butts up against private rights, such as taxpayer confidentiality (recently upheld with gusto by the Supreme Court).

But the culture of Whitehall over the last decade, at least, was such that it would be rare to find a minister or senior civil servant openly demurring from the principle that openness and transparency were virtues in themselves.

The principle seems to have gone into reverse since Theresa May’s government took over the reins of power. Over the summer, in what with hindsight seems like a honeymoon period, it was unclear whether the lack of signals from No10 was due to secrecy or simply to the fact that there was nothing to say beyond the trite tautology of “Brexit means Brexit”. May’s reputation from the Home Office gave some hints, but profiles of the new Prime Minister focused mainly on her working relationships with colleagues, civil servants and her close “team” of Nick Timothy and Fiona Hill, and there were few tangible signs of the new direction.

With the return of MPs to Westminster in September, May adopted a new refrain of “no running commentary”. It was unclear what lay behind this stance: did it conceal a lack of coherent strategy, or a developing plan that the government did not wish to divulge? By the end of the month the approach was causing sufficient concern for the Institute for Government to publish a briefing paper, Planning Brexit: Silence is not a strategy, calling on May to clarify the timescale and process for agreeing a negotiating position and engaging beyond Whitehall.

Around the same time, a very specific and tangible symptom of secrecy emerged in relation to the legal challenges on the exercise of royal prerogative to invoke Article 50 of the EU treaty. As preparations advanced towards the High Court hearing in mid-October, the government refused to disclose publicly the grounds for its legal arguments, and demanded that the claimants’ arguments should be redacted so as not to reveal the grounds they were arguing against. The reason for this refusal appeared spurious – appealing to the need to protect the claimants – and the High Court ruled at the end of September that the skeleton arguments must be revealed.

There were also signs that consultation with business was not working well, as discussed in my blog of 25 September. While more suggestive of confusion than of design, these signs did indicate a blockage in the flow of communication that is a prerequisite of open government.

Skirting around the red meat thrown to the Tory party conference – another source of confusion – we come to recent events and the “Nissan deal”. Nobody knows exactly what has been offered to Nissan. Indeed, nobody knows the boundaries of what might legally have been offered, because it is unclear what rules we are playing by (EEA State aid? WTO rules?). But one possibility is that more has been disclosed to a foreign-owned company about the government’s negotiating position (continued membership of the Customs Union?) than has been disclosed to Parliament.

At the very least, the government’s willingness – and ability – to persuade Nissan to continue to invest in the Sunderland plant suggest that a strategy and plans are starting to take shape. Yet the government seems determined to share those plans neither with Parliament nor with the public.

The stated grounds for this new secrecy are that it is required in order not to prejudice the UK’s negotiating position with the EU. Even if this is a well-founded concern, my thesis stands: this government is operating by very different principles from those that have governed the executive for the last two decades. Is this the end of open government as an ideal?

If so, it remains to be seen what will replace it. William Davies, in an interesting article in the latest London Review of Books, Home Office Rules, associates May with the Hobbesian ideal of the protective state.

But whatever emerges, two things can be predicted with virtual certainty. Firstly, we may expect a period of even greater confusion as Whitehall adapts to the new culture. Secondly, if the government is providing information behind closed doors, to individual interlocutors, then over time some of that information will inevitably leak. And the leaks will be messy, difficult to manage, and will give an impression of a government without any principle.

Update May 2017

When I was writing this piece six months ago, a comment on an early draft questioned whether there was quite enough evidence to justify the position I was taking. I went ahead anyway – there were at least three pieces of clear evidence, and my gut told me I was onto something about the nature of the May government – but I added a cautious question mark to my title. The day after I published the blog, Andrew Tyrie, then chair of the Treasury Select Committee, criticised the government’s secretive stance in an interview with the FT, casting doubt on the rationale given for this secrecy and calling for greater parliamentary involvement. He also pointed to the danger of leaks from the European Parliament once negotiations commenced.

At November’s Autumn Statement, I noted the change in remit of the Office of Budget Responsibility (OBR) as further evidence of the government’s move away from openness and independent scrutiny, and the Treasury’s failure to answer questions in relation to the Nissan deal. At that point I removed the cautious question mark in the title of the blog.

Six months on, there is ample evidence in the news each week of Theresa May’s approach: secretive at best. Take, for example, the fact that the “Great” Repeal Bill will not be consulted on in draft. Or the threat to business reported in the FT that “any critical statements in the media about immigration, trade, or the rights of EU residents will be punished with an immediate cessation of access”.

The lack of openness is not limited to Brexit. Once the general election was called, the government sought (unsuccessfully in the High Court) to invoke election purdah to justify breaking a court order to publish plans to tackle environmental pollution.

There has also been ample evidence that an approach of secrecy will not work: as I said at the end of my blog, there will be leaks and they will be messy. The Brexit dinner is perhaps the messiest example so far, but with two years of Brexit negotiations to come that is no doubt just an appetiser.

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