23rd January 2022
This law and policy blog has many great comments – often better than my posts – and there was a comment on yesterday’s post that had a particularly striking passage.
‘Alan’ said:
‘Accountability is impossible without transparency. It’s also impossible without the power to create remedies.’
This is spot-on – and it is worth unpacking.
Accountability is, of course, a Good Thing.
It is also a vague thing – though regular readers of this blog (and my tweets) will know that I usually take it to mean that a person can be required to give an account of themselves.
(Accountability/account -geddit?)
And a common complaint on this blog (and my tweets) is that those with political power are deft in avoiding giving accounts of what they do, either through rhetorical devices or by frustrating or circumventing checks and balances.
But.
The easiest way for a person with political power to evade accountability is simple.
It is by you not knowing what they are doing or not doing.
And so, in this way, the best way means of having accountability is by having transparency.
For it is only then that you will know what questions to ask and evidence to demand in respect of what politicians and officials do or not do.
But.
(A second but.)
Transparency is of limited import unless it can be enforced against the will of those with political power.
And here we have the further problem – especially in the United Kingdom – of traditions and structures that make it almost impossible for anyone outside public bodies to find out what is going on – unless those with public power allow it.
Here one can point to, for example, official secrets legislation that is as tough as freedom of information legislation is weak.
We have well-resourced taxpayer-funded government press offices that will not tell the media anything unless it suits the government of the day.
We have weekly lies and non-answers in parliamentary debates.
And so on, and so on.
There is almost nothing which anyone outside government can do to force this transparency.
There are no – or almost no – remedies.
Here ‘remedies’ are, in general, what a court can order to make a person to do something they do not want to do, so as to put right a situation.
But it is rare to get a court to make any order to compel a public body so as to disclose a thing it does not want to disclose.
And so, as ‘Alan’ avers, without remedies there will not be accountability and transparency.
Accountability – and even transparency – does not mean a thing unless you can compel those with political power to give their accounts against their will by going to court.
The question is: how can we have stronger remedies against public bodies so as to force through accountability and transparency?
Any ideas?
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Is that not what the combination of the Freedom of Information legislation and Judicial review is meant to enable. I realise both have been subject to recent sustained attack, but I think they are both still technically intact ?
Technically intact but (generally) pretty ineffective unless you have a substantive good policy argument to back it up.
In terms of remedies CPS could be lobbied, petitioned, or just asked very nicely to prosecute Johnson, Cummings and Gove, and possibly others, for breaching section 3 of the Treason Felony Act 1848. A criminal offence created to prosecute the Chartists.
https://www.legislation.gov.uk/ukpga/Vict/11-12/12/section/3
They “overawed” MPs into triggering Article 50 and many MPs, including the Leader of Opposition are still “overawed” and feel, perhaps not entirely unreasonably, the need to deliver Brexit (whatever that is eventually going to be).
“Partygate” is very bad indeed but it is also safe ground for a Labour party that has, unfortunately, swallowed the “will of the people” narrative manufactured by the Vote Leave team.
(Frost, Cummings and Davis appear to be unhappy with the way Brexit going and at the same time we have “partygate” evidence emerging.)
Have posted many times about this on this blog previously so will not repeat myself any further. Brexit has many complications but at its heart it is just a shabby fraud.
Longer term:-
1. Introduce a form of proportional representation that replaces House of Lords with an elected body.
2. Provides MPs with more funding so that they have the access to the right resources and can hire teams that help them to do their jobs more effectively.
3. Rotate parliament so it sits in different cities, e.g. Birmingham, Manchester and Glasgow.
how about known and written down rules and not ultimate flexibillty.
Annual parliaments: kicking the buggers out regularly is the remedy.
Interestingly, annual parliaments was the of the six points included on the original People’s Charter.
https://cdn11.bigcommerce.com/s-y3dqjref7c/images/stencil/1280×1280/products/242/3716/211-tea-towel-peoples-charter__49440.1623682985.jpg?c=2
It is the only one of the points that hasn’t been subsequently implemented.
The Chartist movement has had a massive influence on the shape of the UK political system that is currently being dismantled by the present administration.
1848 Act was designed to put the Chartists down quietly and effectively. The establishment saw what had happened in France and didn’t want the Chartists teaming up with the Irish nationalists. Perhaps it could help us now.
For FOIA:
Automatic fines for section 10 FOIA breaches (Ie, didn’t respond within alloyed time). Add a new section to deal with vexatious authorities, as a counterweight to s14 which blocks vexatious complainants. Also enforce that with fines.
If the ICO got money for enforcing the FOIA they might bother to go after it as heavily as they do GDPR breaches.
Those would be a start!
GDPR’s on the way out: it’s squarely in the sights of this government’s deregulating agenda.
This will not surprise you.
As an IT professional, I can assure you that I am horrified by the prospect.
A very good, important and difficult question! One idea that occurs to me is for the House of Lords to set up a committee which would give each Government Department an annual report including a mark out of ten for performance against its own objectives. To reduce the obvious scope for political influence membership of the committee would be restricted to cross-bench Peers
Accountability and transparency are both excellent attributes to aspire to. It’s arguable that it’s slightly easier to be more accountable than it is to be transparent.
The challenge is the competing constraints of decision making & privacy.
Putting aside the very obvious and difficult decisions to be made (weekly, daily) by a government, it’s hard to see how governing bodies can be totally and utterly transparent yet they can and ought to be held accountable for their actions.
Transparency always hits the buffers with privacy and decision making. Anyone who has sat on a disciplinary board knows the delicate subjects that can be discussed – privacy for the individual is paramount as is reaching the right decision for the organisation concerned.
If full transparency of the decision making process was made to say the Public ( as opposed to the individual ) it could lead to discrimination to said individual , which would be potentially very harmful. The governing body can still be fully accountable for its decision .
Likewise a war cabinet ought to be totally accountable for all its decisions but it can’t necessarily outline all the horrific options open to it, ahead of the decision being made ( eventually) public. Wars really don’t lend to early bird transparency.
So yes to both accountability & transparency – but let’s be realistic as to the necessary timing and constraints of transparency.
Audit can do this, if it is able to look at more than just the financial statements. In Scotland the auditor reports publicly on governance and accountability (among other subjects) which includes transparency. When the auditor finds that things have gone wrong, the auditor general can prepare a report to parliament. This can lead to improvements. See this for example: https://www.audit-scotland.gov.uk/report/the-202021-audit-of-b%C3%B2rd-na-g%C3%A0idhlig
Perhaps the answer lies not in stronger remedies against public bodies, but rather in making disclosure their natural preference. One might aver that the nature of political power in a first-past-the-post system tends towards the civil service orienting itself to deliver against a reasonably forseeable set of government priorities between General Elections. Under a proportional representation system where the government programme is negotiated and shared, public bodies might start to value probity and openness as virtues that will support the trust of shifting coalitions and negotiated priorities, with public accountability a happy byproduct. But we do not have a proportional representation system. Other measures must therefore be envisaged to orient the culture of public bodies towards transparency. One possibility would be strengthening the National Audit Office, or creating a Civil Service Commission with significant powers independent of government, and teeth to punish maladministration. But ultimately, a government whose interests run counter to disclosure can weaken provisions put in place to improve transparency and accountability. But perhaps we should not wring our hands too much over a lack of cultural change in government circles. The public interest in matters of conduct in public life has not dimmed as demonstrated by public appetite for stories of Downing Street parties, or self-administered eyesight tests on the road to Barnard Castle. Or indeed by the crowd-funding of blogs such as this one. Perhaps one day sentiments of those in public life and public administration will catch up with sentiments in the country, and the long-awaited changes will come. In the meantime, keep holding them to account, David.
It looks like this is one of the many problems that are baked into the British constitution, along with poor constitutional safeguards, poor voter representation through an archaic voting system, poor representation for the devolved nations, which leads to a lot of frustration not least in Scotland and Northern Ireland.
Parliamentary supremacy is allowing other institutions only very little power to step in, so I assume that ultimately this is the area where something would have to change.
Parliamentary supremacy creates the conundrum that -because the Government of the day can enjoy almost unlimited power- there is very little desire to reduce that power, since any Government would first have to start with themselves.
That is compounded by the fact that the two-party system makes it almost impossible to reach a situation in which changes would be enforced by partners in a coalition. Maybe that is what is now going to happen after the next election, but who knows, it seems that a lot of stars have to align in the right way before anything can change.
You can have all the “remedies” you like but who will monitor their being applied? Quis custodiet ipsos custodes?
Transparency and accountability – In today’s Observer, https://www.theguardian.com/politics/2022/jan/23/jeremy-heywood-was-scapegoat-for-greensill-affair-says-lady-suzanne-heywood
How someone with access to the cabinet office was unable to challenge the executive and question an inquiry into her late husband’s actions. It is chilling. The obstacles put in her way.
Extend the remit of Ofcom to cover the press. Until the press can be called to account for repeating politicians’ lies (and making up more of their own), there is no hope of the majority of the public being confronted with reality even if there is transparancy. But one does need to tread warily, and maybe ask that nice Mr Hislop what might work. Perhaps setting a limit (of 1) on the number of mass-circulation newspapers that can be owned by a single person or organisation. Or banning Australians of a certain age from owning UK newspapers.
At this point the only solution is for a battalion of primary school teachers to oversee everything, instill some basic morals / decency in our politicians, and dispense time on the naughty step when they tell lies, act childishly or bully their colleagues. Jokes aside, I feel that unless there’s actual consequences for despicable behaviour, like a functioning, independent disciplinary system with teeth that applies to everyone including the prime minister, the next Boris / Trumps will continue to exploit their position. But what such a system should look like, I don’t know.
I have always been an advocate if this approach. They can spot mendacity a mile away and are very well aware of the miscreants. Suggest a rotating company from this battalion to ask the questions at PMQs etc and make the Ministers stay until they answer the question and tell the truth.
1. Scrap all govt secrecy laws.
2. Minute all govt meetings and publish by end of following working day.
I blame Albert and Victoria. Before them the monarch kept a very close (too close?) an interest in the doings of Parliament. Admittedly the process was fairly venal – but A&V and George III changed that. Albert died before completing the process of changing the British Constitution. But the system he set up continued for 170 years – until about 50 years ago when it started to change.
The money started to run out and the old ethical restraints weakened and the only control over Parliament – the monarch had relinquished control without replacing the mechanism. There is no control over Parliament and it has returned to the chaos and venality of the pre Victorian era.
Perhaps we must hope for a more proactive monarch. The difficulty is that the monarchs of our European neighbours have lost their crowns and/or their heads in the last 170 years. Our neighbours have developed or been forced to develop different constitutional mechanisms. We stand out as an oddity. Whether we would like a more interfering monarch is yet to be seen but the thought of Mr Johnson being held to account in Parliament without being able to lie and conceal has a certain appeal.
What would make a great deal of difference with respect to Government accountability and transparency, especially for Conservative Governments, would be having a fourth estate which is both genuinely “free” and prepared to “publish and be dammed”.
Party gate is essentially old news insofar as the events being “disclosed” are 18 months old at least. It is absolutely clear that large parts of the legacy print press (hello James Slack) were well aware that these were going on and decided for reasons that are all too obvious to keep what they knew under wraps. And it’s not just those parties which we are not seeing reported – https://zelo-street.blogspot.com/2022/01/tory-lorry-queue-deflection-fails.html
The Conservative supporting legacy print media is arguably at its most insidious when they withhold information to protect the Government and, one presumes, to use as future leverage. Not very long ago we were being told how DePfeffel was confidently eyeing up 10 years as PM (just after the 2021 party conference season) now, after just a few weeks of relatively sustained media scrutiny he is apparently just hoping to survive longer than his Etonian predecessor. What changed? Why did the press decide it was time for DePfeffel to depart and make way for a new suit?
I realise this blogs focus is on the legal and policy sides of this debate, but I don’t think it’s possible to answer our bloggers question “how can we have stronger remedies against public bodies so as to force through accountability and transparency?” without considering the role of an institution which is supposed to be (but isn’t) one of the primary forces investigating and holding power to account.
Problem is people like Lord Moylan fail to get this basic point. Johnson has institutionalised cover-ups and lack of accountability, which is one more reason why he should be removed. He has done huge harm to trust in the political system.
I can tell you why it won’t happen. Let’s assume that you hold public office and that the situation in relation to accountability is as you describe it, viz: There is no accountability. Why would you change it? Of course you wouldn’t…unless someone made you. And who could make you change the current situation…why only you. There’s a hole in my accountability bucket dear David, dear David, with what shall I fix it dear Boris dear Boris? Why would you do that dear David dear David? Well dear Boris, dear Boris…you wouldn’t!
The origins of writing seems to have roots in accountability – recording livestock numbers on pottery in order to report to someone.
Accountability only really works if someone wants to hold someone else to account. For a politician like Johnson there are multiple levels of accountabilities and their relative importance change.
Donors will always be motivated to hold politicians to account. Ideological supporters will instinctively try to measure politicians against their personal wish list. For these groups accountability is built in to their relationship with politicians.
But does the electorate always have that motivation? Or do they only become interested in accountability occasionally or sporadically. If there is an accountability-by-exception attitude it allows Johnson to self-regulate and account only to his own feelings, knowing that he can make promises to the electorate that he probably won’t have to keep.
Brian’s point: is this not another way of posing the ancient problem of who guards the guards ? to which there is no permanent solution. We can write rules, we can create positions for watchers, but in the UK parlement is sovereign and so can make or unmake whatever rules they please. If ultimately the electorate shrug when a government tries to Henry-the-Eighth its way past controls (a right card that one- Eh ?). Alan’s point is well made, but for a so-called government purged of good chaps there is clearly nothing to be done except to embarrass them out. Why the current fuss is so important. And it was brought to the boil by an issue that voters can relate to ; not for lying in affairs of state.
James Mill quote : ” This has ever been the great problem of Government. The powers of Government are of necessity placed in some hands; they who are intrusted with them have infinite temptations to abuse them, and will never cease abusing them, if they are not prevented. How are they to be prevented? The people must appoint watchmen. But quis custodiet ipsos custodes? Who are to watch the watchmen?—The people themselves. There is no other resource; and without this ultimate safeguard, the ruling Few will be for ever the scourge and oppression of the subject Many.
When Mill wrote these words he was hard at work lobbying to extend electoral reform following the passage of the first Reform Act in 1832. This had enabled the better off tax-payers in the middle class to vote for the first time but it still excluded the poor and of course women. Mill and his fellow Philosophic Radicals believed that democracy was a crucial weapon in the struggle against the powerful and wealthy aristocratic elites, land owners, the established Church, and financiers who controlled the British state. His key idea considers “the ruling Few” and “the subject Many”, the processes by which the ruling Few use their control of the state (especially Parliament) to “pillage” the subject Many, and how the latter can defend themselves by having access to the vote, participating in frequent elections, and using the freedom of the press to expose the corruption and privileges of the elite. His answer to “the great problem of Government”, namely “quis custodiet ipsos custodes?” or, as he translated it, “Who are to watch the watchmen?” was to give ultimate oversight to “the people themselves”. He does not address the problem here of what happens if democracy itself becomes corrupt, when “the ruling Few” turns into a “ruling Many.” He no doubt thought that with a free press and a more broadly based system of education this would be impossible.” [This from the OLL !]
I’m reluctant to come back on this since there’s already been a lot of good suggestions, but your blog is so well thought-out that it positively invites comment.
It might be useful to think about how to reverse the direction of pressure.
At the moment, all the legal pressure is against those providing public information. And none is on those who withhold it.
Imagine if it were a criminal offence to withhold information funded from the public purse. And a presumption of innocence for those providing it.
The only exception being an immediate threat to national security.
An official transparency act instead of an official secrets one.
I know. It’s a bit facile. As you said recently, we need a change in culture rather than a change in the law.
But sometimes, the two go together. And maybe a legal change can help foster a change in culture.
There is some evidence that public opinion might be already have gone partly in this direction. Juries have acquitted those who have admitted to breaking the official secrets act. Because they thought the law itself was not in the public interest.
Maybe they need a little help in sharpening up the adverse consequences for those who hid the information in the first place.
I wonder if ‘ Alan’ is related in some way to @Garius, an historian and an authoritative source on London transport policy, whose day job was implementing structures and systems of management with effective mechanisms of accountancy.
He has, from time to time, made very useful comments about failures of accountancy being the besetting sin of recent Governments.
Some of them have been hilarious; some have been serious, and quite informative.
I would urge you to ping @Garius on Twitter, and ask him to send over some ‘unrolls’ of his commentary on Boris in government: he will surely be flattered to be approached by a prominent commentator on constitutional law and Brexit; and you, in turn, may well enjoy an conversation about accountability and transparency with a real-world expert in making these things a concrete reality.
It strikes me that most /all of us agree that accountability with transparency is a good thing.
I’ve still a few concerns regarding:
– who decides that a suitable level of accountability has been reached?
– what measures of transparency are used?
– what decision making led to the levels of transparency?
– acceptable trade-offs of privacy v transparency – again – who decides and justifies the decision made?
Perhaps recognising that we live in such an imperfect world and a finite amount of time to ‘account for ‘ versus ‘to do’ is the way forward?
It is time to revisit the film
Defence of the Realm