20th June 2021
(This is the third in a trilogy of short posts about the accountability of the United Kingdom state – see Garbage in, Garbage Out and The Accountability Gap.)
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Every so often there will be some politician – usually Michael Gove but sometimes someone else – who will urge that there be ‘public sector reform’.
This reform should be ‘radical’ or ‘fundamental’.
Heads will nod, and hands may even clap.
Worthy pdfs will be clicked on earnestly, only for the tabs to be then left unread.
And then nothing really happens until the next time some politician – usually Michael Gove but perhaps someone else – will urge that there be ‘public sector reform’.
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What is often missing in many of these heady, fine-sounding proposals is the one thing that would genuinely be radical or fundamental.
This would be to force public sector bodies to disclose information against their will.
For as long as public bodies – politicians and officials – can pick and choose what information can be disclosed publicly, there can never be any meaningful reform of the public sector.
There needs to be a tension – a check and a balance – in respect of any public body’s estimation of itself and its performance.
Unfortunately – as typified by the cabinet office under Michael Gove – there is a general public sector disdain for transparency and freedom of information.
There always seems to be some reason to keep public sector information secret – from ‘national security’ to ‘commercial confidentiality’.
Indeed, the most dismal and insincere official documents in existence are freedom of information non-disclosure decision letters.
Everyone involved knows that the content of such letters is faithless guff – but nobody with any power seems to care.
When there is no duty of disclosure and no duty of candour there can be no holding of the public sector to account.
And if there is no way of holding the public sector to account then any ‘public sector reform’ will not succeed against the private interests of the officials and politicians involved – nor against the interests of external suppliers.
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So, to mimic David Hume, there is something to ask of any public sector reform, whether it is proposed by Michael Gove or somebody else:
Will the proposed public sector reform result in the public sector disclosing information that it otherwise would be unwilling to disclose?
No?
Will the proposed public sector reform mean that officials and politicians – and relevant third parties – being candid when they otherwise would not be?
No?
Then commit the proposed public sector reform to the flames, for it will contain nothing but sophistry and illusion.
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This is so obviously true but so uncomfortable for Governments of all shades that it will probably never happen. Certainly not under the Johnsonians, who hate transparency and accountability of any sort. So their preferred approach is to undermine the power of regulatory bodies of all sorts or appointing place persons to run them. The rule of law is also an inconvenience for them, so now they are neutering the power of the judiciary.
Excellent post as always.
Didn’t Gorbachev argue that glasnost (openness) was needed in order that there could be perestroika (restructuring)?
Our present governing regime is in desperate need of glasnost on many fronts. It does not want it. Perhaps it could accept it as the price it must pay if it wants to restructure?
I think there are two related issues.
1. Transparency vis-a-vis citizens. The Blair government passed the FOI Act, only to later realise its full implications. It was a remarkable innovation. Since then, successive governments have tried to weaken it.
2. The UK (and the US) has an imperfect separation of powers and it will only get worse if the current government has its way with the judicial review. This further reduces the ability of Parliament and the judiciary to impose transparency (keep the government in check).
‘Reform’ is a word intended to mislead. It implies that the change in question *must* be positive, future facing. But in reality, *reform* is generally just another in a series of ill thought-out reorganisations that sap energy, cost money and don’t make a useful difference
You talk about duty of candour as if it were something that a politician was actually capable of in the first place, agreed none of this will ever see the light of day and there you have the nub of the problem with our democratic process in that it is left to those with most invested in it to produce the reforms you speak of which will so very obviously curtail or expunge those benefits they so crave.
Berkow talked about a written constitution not as if it was the holy grail but instead a poisoned chalice which in essence is what it really is for those expected to write it, a bit like asking the innocent man to design and build the most fiendish contraption of execution in preparation for the crime he is yet to commit, never going to happen is it.
So I will say it once more, Oversight, with teeth, bloody great big legally back judicial teeth with the powers not only to hold the elected and associates to account totally divorced from the democratic process itself and that in itself to be built into a written constitution built to reform government to the point were the people can once again trust their democratic process again done from outside putting that process where it belongs.
These are not gods we speak of here, these are employees of the people, the time maybe their contract of employment was put in writtings they can not fail to understand.
I agree with the view that radically improved transparency is critical to public sector reform, but I think the story needs a clearer “why is this necessary?”.
The key step in the argument it seems to me is contestability.
In the private sector, there is usually information available on products and services (much improved by web services) and there is usually some choice.
Most public services are natural monopolies, so choice isn’t applicable. So information on what has been offered vs what should have been offered is the only practical source of contestability- “do I have a valid complaint?” Only then does accountability really apply: “how do I complain?”
Things have steadily improved since John Major started down this road with his Citizens Charter. His basic idea was that reform was not (just) a top down process, but could be encouraged by better informed citizens. This it seems to me is completely correct. And I would argue that much of the undoubted improvements in public services since then (austerity aside) stem from this simple insight. Increased private sector involvement has played a role (and also led to some notable howlers). Reorganisations etc have helped at the margin. But most of the improvement has come from increased (horizontal) pressure from users etc.
But we have bumped against a glass ceiling to further improvement: information that the public sector actively wants to suppress. Which takes us to your proposal for a duty of candour.
‘The key step in the argument it seems to me is contestability.’
Good point, well made. Thank you.
Thank you. Probably an obvious point to make, that I think the contestability framing, in the specific sense of the term in my comment, works all the way from “should my bins have been emptied today?” to the PO and Windrush scandals.
The Kenneh-Mason passport story is another example, with Twitter as the wrong answer to the question. It should always be possible and straightforward for ordinary citizens to contest a bureaucratic decision without recourse to lawyers, MPs or the media, at least to a first fact-based review of the reasons for a decision, and whether the reasons given are in fact “reasons”. How formal and independent the review is, should be driven by how life changing the decisions are. Bins, not much. Passports, a lot.
As a corollary to your thesis, public sector reform that is predicated on liberalised access to other people’s data is also sophistry and illusion. Especially if the ‘Michael Gove’ in question refuses to be candid and has an idiosyncratic interpretation of freedom of information.
the DWP has never been fined by the ICO apparently, but, um, don’t always complete, subject access requests, I tried a GDPR rectification request to get them to correct the untrue statements that had been used to kick me off disability benefits but got no response after the GDPR team had passed my request over, in fact they doubled down when someone looked at the decision again, and said I couldn’t have any because I came to the assessment centre alone. they had in fact come to my flat, so I didn’t have far to travel.
As I understand it, a “duty of candour” was introduced in healthcare contexts under regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 :
* https://www.cqc.org.uk/guidance-providers/regulations-enforcement/regulation-20-duty-candour or
* https://www.legislation.gov.uk/uksi/2014/2936/regulation/20/made
It has also been built into the professional regulation of doctors and nurses, for example:
* https://www.gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors/candour—openness-and-honesty-when-things-go-wrong/the-professional-duty-of-candour
* https://www.rcn.org.uk/get-help/rcn-advice/duty-of-candour
I wonder if someone here can tell us how that is working out in practice? Has any research been published?
(Lawyers have long had a similar obligation to disclose all relevant information to their clients – and indeed to the court – but also to keep client information confidential, and so also to avoid a conflict between their duty of confidentiality to one client and their duty of disclosure to another client – eg https://www.sra.org.uk/solicitors/standards-regulations/code-conduct-firms/#rule-6-3 )
I have long been of the opinion that with the exception of technical specifications for defence equipment all contracts with public bodies should be automatically published in full 60 days after signature – including all commercial terms. That would remove many opportunities for croneyism/ corruption and permit a properly informed public debate about value for money.
Whilst I agree transparency is one of the best antidotes to incompetence and malfeasance in public office there is a balance to be struck. Too much transparency results in paralysis if it impinges upon public decision makers’ to think about and cogitate upon their decisions. If the FOI act has taught us anything it is any transparency regime, no matter how little the incremental benefit, will be used extensively and even vexatiously by those with an axe to grind against government. This is not an argument against further transparency but a cautionary note about unintended consequences and the need for any system to be retrospective in nature. Personally having worked in public office, I always found the possibility of a judicial review to be the more onerous and tempering element of our system of checks and balances.
‘Too much transparency results in paralysis’
Twaddle.
Round the mulberry bush we go.
I do wonder if there is any government that avoids the venality and dishonesty we see locally. Merely reading foreign newspapers is not enough, one needs to be up close and personal for a feel as to how things really are. The American model does not look attractive, it veers too wildly, one hears uncomfortable rumbles about Germany not being quite as pure as driven snow. Has France chucked money down the drain over dodgy defence or Covid projects, hard to believe all is perfection there.
This is not to excuse our own government but to look around for a system with better checks and balances that we might seek to adopt. I think it is better for governments to be tied closely to one another just so someone else is always looking over their shoulders. Too much secrecy seems at least as bad as not enough. I fear our own government and establishment is too addicted to secrecy and never liked the neighbours looking over the fence.
I am not aware of any German being one myself who think we are pure as snow or our that our Gov. is.
Obv I can’t speak for France but what you seem to forget is the huge difference how jurisdiction is done ( and GOV)on the continent and in the UK.
Btw no offense taken
and as always excuse my bad English
I offer you “offentlighetsprincipen”: https://en.wikipedia.org/wiki/Swedish_Freedom_of_the_Press_Act . Part of the Swedish constitution sine 1766.
As usual, you get close to the heart of the matter.
You say that shining a light on the public administration is a precondition for reform. If we needed any confirmation, we only have to remember that the Freedom of Information Act was the biggest regret of Tony Blair. Or indeed see how hard the current government tries to block publication of reports, public tender results and the rest.
But more light will make the darker places even darker. Which will undermine confidence.
Therefore the principle should be : all information paid for by the public should be available to the public. No more dark places.
How to provide for legitimate exceptions ? Maybe timing.
So all information generated in the public service – emails, diaries, notes, letters, transcripts, studies – should be publicly available. But revealed after decisions are taken, or legal proceedings are concluded. Without exception.
Well, perhaps withholding if there is a danger to life, in the security field maybe. But only once accepted by a judge.
What about the ‘advice to ministers’ defence ? Exactly – so what ? What damage does it really do if it’s revealed?
How do we know if this works ? Well, the European administration is already subject to this rule. Every item within their administration is publicly available.
The exceptions that Member States insisted on are communications they don’t want to reveal, and the dreaded ‘commercial confidentiality’. The Court of Justice has accepted that only information during a legal or quasi-legal procedure can be withheld.
This is the minimum necessary. But how to make sure that the information can be acted upon to ensure accountability ? A topic for another day, maybe.
Georges Clemenceau once said, “War is too serious a matter to entrust to military men”.
I would contend that public sector reform is too important a subject to be left to a Michael Gove (or an Angela Rayner). And as for Baroness Dido Harding, well, words fail one.
Baroness Harding, holder of the Colonel Cargill Lifetime Award, has all the confidence that comes from someone completing lacking in self-awareness. The Baroness has never not carried out each and every one of her duties to her entire satisfaction.
I was lucky enough to have the chance to read Gove’s interview with The Times of Saturday 12th June as it was, briefly, outside of the pay wall.
The piece was entitled, “We’ll re-engineer the whole NHS to make sure people don’t wait in pain”.
With a sub heading of “Dispatched to soothe tensions on the other side of the Irish Sea, Michael Gove politely insists it’s time to move on from Brexit”.
As we know, from another on the record source, that lemon has been sucked dry.
I am always impressed by how people with no discernible background in business or management are confident that they are the ones with the answers to the problems of the public sector. The public sector always has problems that need addressing by outsiders, invariably in their own eyes, gifted amateurs.
Baroness Harding, in her pitch to become the next Chief Executive of NHS England, according to the Sunday Times feels she will bring the benefit of being the ultimate “insider-outsider” to the role.
Gove, on graduation from Oxford University (naturally), went to work as a journalist for The Press and Journal in Aberdeen, joining The Times in 1996. He was subsequently elected the Conservative MP for Surrey Heath in 2005.
If only all these chaps who write informed comment pieces for the broadsheets and serious periodicals about the failings of our society and economy went into Government, eh? Where would we be …
Of course, being committed to truth, honesty and openness, they confidently assert that the Fourth Estate is in robust health and in no need of reform, certainly not from outsiders, or acts of self-restraint (as we saw during the discussion in the media around Naomi Osaka’s withdrawal from Roland Garros).
I will avoid the temptation of going into the detail of the interview with “living up to his reputation, in public at least, … the politest man in Westminster”. However, Ministers, regardless of party, have a tendency to say there is X amount of waste within the National Health Service.
I would like a journalist to ask the next Minister to make such a claim the following three questions:
1. How did you come up with that figure?
2. How did you let things get so out of hand that that much is waste is being created?
3. Is it not a failure on your part that such a level of waste has been created through a British Leyland style inspection approach?
Rarely do journalists (these days?) subject Ministers, especially the poachers turned gamekeepers, like Gove, to the same sort of scrutiny that Gove, for example, put Conservative and Labour Ministers under when he was at The Times?
Odds on, back in their journalistic days, Gove and Johnson were all in favour of more open Government, Sir Humphrey.
Journalists, as a consequence of not asking my three questions, rarely go on to ask why Ministers think a figure for cuts, sorry, savings determined at the centre is a credible response to perceived waste in an organisation like the NHS.
To a degree, Gove’s plans for public sector reform are, in part, uncontroversial, harking back, as they seem to do to the recommendations of the Fulton Report of 1968.
The Civil Service College at Sunningdale was founded as a consequence of Fulton and then, courtesy, of David Cameron and austerity, closed in 2012. That would be the David Cameron who as Prime Minister was audibly advised by a senior military officer that leading the UK’s armed forces was not the same as having been a member of Eton College’s Combined Cadet Force. Amateurs, eh?
Proposals for committees made up of senior civil servants and Ministers, however, make one queasy. Harold Wilson, a former wartime temporary civil servant, would have rightly, on balance, disapproved.
Input from the private sector, did you say? The public sector has been getting that for decades along with all the fads that have done wonders for management in the private sector.
For a brief while, the Chief Executive of Jobcentre Plus was the former Chief Executive Officer of the Yorkshire Bank. I had the genuine pleasure of hearing him speak and chatting with him.
He remarked that as a CEO in the private sector, he had a fairly limited number of shareholders, but as a CE in the public sector, his shareholders ran into the tens of millions.
Learning from best practice in the private sector, of course, Jobcentre Plus had, when he arrived, a system of staff bonuses. He had scrapped them, as they were not conducive to good team working.
Quite often, politicians and columnists eschew private sector practice when it does not fit with their prejudices. Almost all the money DWP spends on investigating benefit fraud is wasted, but who would be brave enough to downscale that activity on the grounds it would not be deemed cost effective in a private sector business?
The Jobcentre Plus bonus scheme was not only bad for morale, but it wasted management time that might well have been better spent on improving service delivery.
I had to smile at the earlier reference to Major’s Citizens Charter. All it seemed to do was encourage complaints. The form used in Jobcentres was full of questions inviting negative responses with a space at the back for any other comments.
It does help to know what one is doing right. Jobcentres went on to have mystery customers and so on. The mystery customer process was, unsurprisingly, gamed.
Gove, like many another politician or columnist, sees himself as the proxy service user. And it, invariably, all goes wrong from there. Seen from his perspective, he probably takes the view that it is more important that he knows what is going on in the NHS than the rest of us. Hence, the questionable estimates of waste and plans to address them.
St George conjures up his own dragon, in secret, announces his plans to slay it, publicly, and then … with any luck, he will have moved on before having to offer up the dead body of the dragon to prove the success of his reforms.
The lack of any agreed, credible baseline in the public domain against which to measure the progress of reform ensures that the cycle may be repeated, indefinitely.
One gathers Gove plans to do novel things with data; set, I am sure, stretching Departmental targets; revive the Number Ten Delivery Unit (a glorified team of auditors) and so on.
All from the centre.
The Cummings is dead, but the instinct to centralise lives on.
Aneurin Bevan famously said that he wanted “to be able to hear the clatter of the bedpan of the hospital ward, in the office of the minister”. Admirable to a point, but baffling to say the management of Toyota, who have been doing amazing things with data at all levels of the company for over seventy years now as part of an evolving management philosophy.
Andy Burnham as Health Secretary and Shadow Health Secretary sought to distance himself from the monolithic centralism that Gove typifies and emphasise how devolving both power and responsibility down within the structure of the NHS is the way to continuously improve the quality of service provided to patients.
Hitting centrally set numerical targets (or manipulating the data to show they have been met) and publishing the results in the public domain is no substitute for actually improving the quality of the service experienced by flesh and blood patients at ward level.
Rarely do those blindly advocating public sector reform remember that public services are primarily run for their users rather than politicians, columnists or the generality of taxpayers.
In terms of improving the quality of service that means identifying stakeholders, which Cummings strongly dislikes, and engaging with them regularly and in a consistent way to build them into the process of quality improvement.
And doing that effectively requires being open and honest with people. It is actually an essential requirement.
How you engage with people; the information that you use in the process and how it is presented to them and so on will naturally vary dependent upon circumstances. Some of it will be statistical.
It is, therefore, rather disturbing to recall that Gove as Education Secretary removed statistics from the National Curriculum to create the space in which students might, instead, learn to count using Roman numerals.
There are more people in the UK who are functionally innumerate than there are who are functionally illiterate, but the largest group of the three are those incapable of understanding that an increase from 10% to 11% is either one of 10% or one percentage point, but not a change of 1%.
Quite often, context is all. Blair was once taken to task at PMQs about the fact that around 2,000 NHS procedures were not going ahead every week. The impression the Opposition was trying to give was that 2,000 a week was a significant number and that it was wholly down to the NHS that these procedures were being cancelled.
Neither was the case.
In order, for the generality of the electorate to benefit from an improvement in transparency and candour, they will need educating in how to interrogate the information with which they are presented to assess its quality or be left to rely on the informed objectivity (or not) of the same intermediaries upon which they depend now.
I have a particular case concerning the downright annoyance caused by the indiscriminate playing of the commercial in confidence card.
About twenty years ago, the Great and the Good in Birmingham and Solihull determined that it would be best to concentrate the bulk of the Further Education sector’s construction training provision on one, purpose built site.
A Construction Centre of Excellence in Bordesley Green on a brownfield site, formerly that of a BT Fulcrum site.
A project for public funding that attracted numerous ticks in boxes during its appraisal.
However, the college tasked with delivering the project had omitted to mention in its submission, much to the embarrassment of the project manager, that there was a shortage of construction tutors in FE.
This inconvenient truth only came up after the project had developed a momentum all of its own.
What to do?
Well, I had been casting around for employment projects to fund that addressed gaps in the labour market. I had discovered in the course of my research that there were a sizeable number of folk who had worked in construction on Incapacity Benefit. However, the DWP data in the public domain only broke down to Regional level.
I needed figures down to the level of Birmingham (and Solihull) to help build a rationale for a project built on the fact that someone might train to become a tutor, under a City and Guilds scheme, effectively on the job.
Roughly speaking someone on IB in their fifties, who had worked in construction would be unlikely to return to working back on site, but they might be persuaded to consider training to become a tutor in their skill on a salary greater than their annual benefit entitlement.
I was aware that two tutors at Tarmac had previously worked in the industry and got their certificates through the C&G route.
It was unlikely that someone, regardless of their age, between jobs in construction would be suitable to become a tutor. If they were any good, why were they not in gainful employment?
So far, so good.
The Department for Work and Pensions, my employer, had contracted with providers across the country to deliver a voluntary scheme to assist folk on IB to find employment.
There was such a programme in Birmingham and, as luck would have it, two representatives of the provider were at a meeting that I attended and gave a presentation about the project (and progress to date). They were, amongst other things, collecting data on the former occupations of the participants of their project for DWP.
I was not the only one who asked if they would share that data, suitably edited to ensure individual programme participants might not be identified from it.
They saw no problem with letting us have the information as its use by others might well help them in assisting their clients. A win all around.
Alas, it turned out the information was considered to be commercially confidential by DWP.
And the Chief Executive of the project to which I was seconded, thought, on balance, it might be rather inappropriate for me to make a formal request for the information. There might be unfortunate consequences.
That was that.
I did approach some of my Jobcentre colleagues, Disability Employment Advisers, to identify some possible candidates that the college might consider recruiting to fill the outstanding vacancies. The college would have to fully fund the C&G training, though, as I was not really in a position to flesh out a funding application for a project that would need to more than just address their specific problem.
To the chagrin of myself and the CCE project manager, the college’s Human Resources department would not consider taking such an approach to their recruitment problem.
You may be wondering how I knew about the two tutors at Tarmac. Well their employer’s training provision had been merged into that of the CCE and so they were now employees of the college and known to the project manager.
The HR department knew all about them, too, but some unnamed legislation or other prevented them from adopting a ‘brave’ approach to filling some very key posts. They were going to stick to the tried and tested.
As an aside, one of the other projects I researched at that time was around addressing the growing skills and labour shortage in the heritage sector. There are a lot of listed buildings in Birmingham and a great desire to preserve, if not, re-purpose them.
English Heritage, the National Trust and others had a programme to which I thought we might contribute on the understanding that we were buying places, ideally, for residents of East Birmingham and North Solihull.
The end of Freedom of Movement will not have eased the skills and labour shortages that project sought to address. Perhaps Oliver Dowden, Secretary of State for Digital, Culture, Media and Sport, might find some time between fighting culture wars in print and on GB News to address the physical damage being wrought on our built heritage by time and climate (change)?
Of course, he may need to prise information out of DWP to help make an application for funding from the Treasury.
And don’t forget George Orwell’s stricture that “Good prose should be transparent, like a window pane” when and if a public – or private – body does actually offer a reply.