Brexit and Open
Government in the UK
by Ben WORTHY, Lecturer at the Birkbeck College, University of London.
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 how
Brexit may influence open government in the UK: 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.
How
will Brexit influence open government and how will openness influence Brexit?
In June 2016, the UK voted 51% to 48% to leave the European Union and in the
wake of the vote Britain had a new Prime Minister and a new government.
However, despite the promises of the new government the exact process of
leaving the EU, as set out in article 50 of the Treaty of Lisbon, remains
unclear and has become increasingly contentious. What appeared a relatively
clear process has become opaque and contested.
If
transparency is now the “dramatically satisfying answer to every crisis and
question about the state” (Fenster 2015) what is its place in the UK’s Brexit
process, perhaps the greatest crisis Britain has faced since the Second World
War? There are three ways of looking at how Brexit may influence open
government in the UK: through changes to old and new policies, the influence of
the new Prime Minister and the openness of the Brexit process itself.
David
Cameron pledged to make the UK the most open government in the world. In common
with other countries, the UK already has an emerging transparency “ecosystem”
that May inherits (Kreimer 2008: Richards and Smith 2015). A shifting mixture
of openness instruments, technology and accountability have together created a
flourishing openness ecosystem where FOI laws sit alongside more dynamic, “hybrid”
and less controlled instruments, from social media to mass leaks (Birchall
2014, 84: Kreimer 2008). The combination of formal and informal tools, pushed
by a range of bodies, is creating a “permanent” and “continuous” oversight of
government which can be used by potential “veto wielders” to exercise “counter-democratic
control” (Schudson 2015, 237).
However, given the continuous conflict and
uncertainty, most openness regimes exist in a constant state of change and flux
as legal rulings, political reforms and diverse use re-shape the boundaries of
the laws. Taken together, divergent pressures frequently leads to a continuous
series of attempts to “dismantle” or “expand” information regimes, sometimes
working in parallel (see Knill et al.
2012: Worthy 2017). Proposed changes have a “magnetic” effect and cluster
together but attempts to either extend or curtail openness regimes frequently
run up against the forces of symbolism, complexity and resistance that shaped
laws in the first place.
May’s
administration has set to continue the UK’s push towards greater openness with
a series of policies, stretching from private sector accountability to a
data-based audit of the equality of institutions. This fits with a pattern that
new governments often promote openness to set a tone. 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. Openness represents an easy win to a
new leader as 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 (Worthy 2017). This may be especially
important for Prime Minister without a mandate facing the complications of
Brexit. Change may come from alterations to existing policies or the creation
of new ones.
Post-Brexit,
on the surface, nothing changes to the main legal instruments of Britain’s
openness regime. The key piece of openness legislation, the Freedom of Information
Act 2000, is enshrined in UK law and very unlikely to be repealed.
Nevertheless,
behind the scenes there have been a series of attempts at “dismantling” or
chipping away at parts of the law since 2005, with roughly one attempt floated
every 18 months to 2 years. They began under Tony Blair with a proposed
introduction of fees or change to the cost limits (2006), followed by an
attempt via a Private Members’ Bill to remove Parliament from the law (2007)
and, under Brown, the proposed removal of Monarch and Heir (2010). The
Conservative-Liberal Democrat Coalition then mooted a clampdown on “industrial
users” (2012-2013) and the Conservative government suggested amending the veto
(2015). Only the removal of the Monarch and Heir, pushed through at the end of
the 2010 Labour government with little publicity, was successful. The other
attempts were stopped by a powerful barrage of press criticism, opposition with
Parliament and sustained campaigns to stop them.
In
2015 the Cameron government announced an Independent inquiry into the FOI Act
and gave it a remit to examine the potential effect on decision-making and
costs of the law. Despite fears it would seek to water down the law, the FOI
Commission’s clear endorsement of the Act in 2016 and the sheer scale of the
resistance to change by the media and civil society halted any attempt to limit
it (Worthy and Hazell 2016). However, in late 2016 the new government was “carefully
considering” a proposed curtailing of the automatic right to the second stage
of appeal (MOJ 2016).
Yet
the FOI law has also expanded by reforms and legal rulings. There was limited
change in 2007-2009 to cover exam bodies and then an inclusion of databases in
2012. In 2015 the strategic rail authority came under FOI, though owing to a
change in accounting designation rather than a purposeful change. The
Independent Commission in 2016 also proposed greater publication of pay data
and some minor improvements that the government endorsed. The new Information
Commissioner has also announced she is prepared to champion the inclusion of
private sector bodies directly under FOI (rather than simply using contractual
clauses on FOI in procurement agreements), something the Independent review
also suggested (Denham 2016).
It
is less clear what may happen to some of the lesser EU initiated laws on
openness. The government has promised a “Great Repeal Bill”, a grandfathering
law to turn all current EU law into UK law in one go. This appears to mean that
any EU initiated laws or transposed regulations, such as the Public Sector
Re-use and Environmental Information Regulations, will be kept and somehow be
preserved. As Brexit means the end of the supremacy of EU law over UK law, this
does, however, make them equally susceptible post-Brexit to repeal or
amendment, especially if, as suggested, all the new laws carry a five-year
sunset clause. The Great Repeal Bill will contain a so-called Henry VIII clause
which “enables government to repeal or amend primary legislation by means of a
secondary act with limited or no further parliamentary scrutiny”, giving
ministers power to alter laws outside of the legislature’s oversight (Grogan
2016).
The
Open Data agenda, pushed a by a succession of Labour and Conservative
governments since 2009, will also continue. As figure 1 shows, the government
is locked in to a series of commitments through its OGP Third National Action
Plan (NAP) meaning the May administration essentially inherits a series of
ongoing reforms. Looking across the UK’s 3rd OGP National Action Plan the top
three commitments around Beneficial Ownership, extractives transparency and
anti-corruption were very much David Cameron’s personal agenda but look set to
be continued. In addition, a number of reforms from the Cameron administration
are still ongoing with, for example, the first Beneficial Ownership data only
being released in June 2016.
Figure 1: UK
Government’s Third National Action Plan 2016-2018
|
3rd OGP National Action Plan Commitment 1: Beneficial ownership Commitment 2: Natural resource transparency Commitment 3: Anti-Corruption Strategy Commitment 4: Anti-Corruption Innovation
Hub Commitment 5: Open contracting Commitment 6: Grants data Commitment 7: Elections data Commitment 8: Enhanced transparency
requirements and revised Freedom of Information Act Code of Practice Commitment 9: Identifying and publishing
core data assets Commitment 10: Involving data users in
shaping the future of open data Commitment 11: Better use of data assets Commitment 12: GOV.UK Commitment 13: Ongoing collaborative
approach to open government reform |
(Cabinet Office 2016)
As
well as inheriting an ecosystem and ongoing policies, Theresa May’s speeches
and actions have indicated a desire to go further. In July 2016 May spoke of
how she wished to see “more transparency, including the full disclosure of
bonus targets and the publication of ‘pay multiple’ data: that is, the ratio
between the CEO’s pay and the average company worker’s pay (May 2016). In
terms of concrete policies, so far the government’s policies have consisted of
–
A data equality audit of UK political institutions in order to ‘check how their race
affects how they are treated on key issues such as health, education and
employment, broken down by geographic location, income and gender’ and to ‘shine
a light on how our public services treat people from different backgrounds and
influence government policy to solve these problems’ (Prime Minister’s Office
2016); A push for greater openness over executive pay in
the private sector, perhaps symbolised by greater openness over BBC pay to its
senior figures and stars paid over £ 150,000 (Telegraph, 14 September 2016); More action on tax havens (Times, 26 July 2016)
The
common thread behind such moves is that transparency will trigger a chain of
actions: the public or users will be interested, will use the information and
data that is published, and they and others can then act upon the data to
leverage change. As a result, cultural and behavioural change will occur within
institutions e.g. driving down pay.
Research increasingly questions each of these assumptions. There is no ‘general’
ideal user and, while some openness initiatives generate public interest,
others do not. As Roberts (2015) points out this chain from asking or accessing
data to actually receiving it and levering change is a long and weak one. If or
whether it can lever reforms depends on the context in which the information is
placed and whether the instruments are available to enforce institutional or
behaviour change (de Fine Licht 2014). The hope behind transparency, that
information will rationally influence or persuade calculating voters or engaged
citizens has not been borne out (Bauhr and Grimes 2014). Users and voters hold ‘deeply
engrained’ views about government and other institutions that are hard to
dislodge. Any change due to new information appears brief and subject specific
(Marvel 2016).
The example of publishing pay is instructive. Evidence from a similar
initiatives publishing public sector pay in Canada found that disclosure had no
effect (Gomez and Wald 2010). Moreover, evidence from studies of the private
sector point to the possibility that disclosure actually increases overall
salaries by creating upward pressure from colleagues (Schmidt 2011). Such a
narrow emphasis on levels of pay and benchmarks also obscures other important
issues around performance (see Jensen and Wald 1990).
A further possibility is that new openness policies may be forced upon the
government. In September 2016, the government accepted an amendment to a bill
requiring the public reporting of ‘country-by-country reporting of taxes paid
by multi-national corporations’. More importantly, in November 2016
the Grand Chamber of the European Court of Human ruled in Magyar Helsinki Bizottság v. Hungary
that, within limits, there existed a new right to access under the European
Convention on Human Rights article 10. This applies where there is a public
benefit and where the requester has a ”public
watchdog’ role, a potentially wide definition including ’the
press…NGOs…authors, academics, bloggers and “popular users of social media”.
This could include information held by bodies currently excluded under FOI,
such as GCHQ, the security services or election officers, and may also weaken
the government’s veto and a number of the absolute exemptions under FOI (CFOI
15/11/2016).
Political
leaders set the tone and send out signals about the openness of their
governments (Hazell et al 2010). Table 1 summarises how the UK’s last three
Prime Ministers did and to what extent they tried to extend or pushback (i.e.
limit) openness. Political leaders often declare support for greater openness
though their enthusiasm, whether real or feigned, often dims from a mixture of
disappointment, cynicism and wish for less exposure and greater control of
communications (Berliner 2014). There is a natural, if not wholly inevitable,
trajectory towards secrecy as events, scandal and enemies build: “How many
leaders have come into office determined to work for more open government, only
to end by fretting over leaks, seeking new ways to classify documents and
questioning the loyalty of outspoken subordinates?” (Bok 1986, 177).
UK Prime Ministers and Openness 2005-2016
|
Prime Minister |
Extension |
Pushback |
|
Tony Blair |
Passed FOI Act in 2000 |
Fees mooted (2006), (tacitly) supported attempt to have
Parliament excluded (2007) |
|
Gordon Brown |
Extension of 30-year rule (2009) and slight extension of FOI to new
areas |
Cabinet exclusion mooted, Excluded Monarchy from FOI (2010) |
|
David Cameron |
OGP especially Open Data agenda
(2010 onwards) and Beneficial Ownership transparency (2013) |
Mooted changes on “industrial users” 2012-2013) and FOI
commission (2015-2016) |
While
Tony Blair passed the FOI between 1997 and 2000 he later regretted it,
describing it as one of his biggest mistakes and claimed FOI was being used as
a weapon. His successor Gordon Brown and then David Cameron both made strong
speeches in favour of openness and pushed various transparency reforms. Cameron
perhaps exemplified the competing desire for openness and wish for secrecy:
while in opposition in 2009 David Cameron pledged “true Freedom of Information”
through a greater use of Open Data and technology, and again in office in 2010
promised a “transparency revolution” with aim of making “in time…our government
one of the most open and transparent in the world” (BBC 2009: Prime Minister’s
Office 2010). While Cameron pushed a series of apparently radical open data
reforms from 2010 onwards, many of which were aimed at the private sector in
2015 he also set up the FOI Commission described above to restrict the Act and
described the law at various points as a “buggeration factor” and something
that was “furring up the arteries of government” (Worthy and Hazell 2016).
So
how about new Prime Minister May? May spent six years as Home Secretary (i.e.
Interior Minister). During that time, she pushed 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. She has also
extended FOI to the Police Federation and opened up police disciplinary
hearings, though some complained May was keen only on transparency transparent
about her opponents. On a personal level May was quick to publish her own tax
details during her campaign to be Conservative leader.
On
the minus side, May has been in charge of a department with a long reputation
for secrecy. Historically, the Home
Office sunk many plans for greater openness (Worthy 2017). Under May was
regularly the third or so in the worst performing departments for FOI across UK
government (IFG 2016). This is in part 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 elsewhere: critics could well
discern a tendency to information control and secrecy. 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 (Guardian, 18 April 2016: BBC 2011). May’s mode of working is also
seen as secretive and closed in the Home Office:
“Mrs
May’s preference for working with a close team of advisers, often not bothering
to share information with Number 10 or other ministers… Mrs May’s tendency [is]
to work with a small team [with a] lack of trust in cabinet colleagues” (FT,
12 July 2016).
The
same habits appeared to be carried over into the premiership. As one
commentator put it:
“Theresa
May survived as home secretary for six years partly because she held a tight
grip over information flows. Perhaps she believes such a model of
command-and-control will translate to the different task of prime minister.
Perhaps she thinks that the press and MPs can be kept in the dark over the UK’s
negotiating position” (Green, 30 November 2016).
A
leaked note also confirmed that May wished to “draw in decisions and settle
matters herself” over Brexit (Guardian,
15 November 2016). In October 2016, the IFG were forced to FOI the government
to obtain details of the Brexit Cabinet subcommittee, information that is
normally published proactively (IFG 2016). May’s refusal, in response to an FOI
request, to release her own internet search history over her proposed
surveillance law also led to a backlash from MPs (Guardian, 30 January 2016).
By
far the biggest concern is over the repeated attempts by May to pass wide-ranging
investigatory powers legislation (aka “the Snoopers Charter”). This finally
became law in November 2016 after repeated attempts. It gives the right for
security services to carry out bulk surveillance, essentially legalising the
practices exposed by Edward Snowden in 2013, and led to “controversy around
encryption, bulk data and hacking and the right of various security services to carry out mass
surveillance on the public” (Computer
world, 2 November 2016). Very serious privacy concerns have
been raised by Parliament, civil rights groups and lawyers, as well as Facebook
and Google with the UN privacy commissioner also warning it not compliant with
international law.
May’s
tendencies towards secrecy are unlikely to be liberalised by office. The Brexit
process, and May herself, will come under unprecedented pressure for openness
from the whole variety of “monitory bodies” or “political observatories” that
are increasingly watching government (Schudson 2015: Keane 2009). Whether
through FOI requests, Select Committees and Questions in Parliament, and leaks
from rivals and opponents, is unlikely that many secrets will be kept for very
long (Posen 2013). Already members of the opposition SNP have
used FOI to open the government’s promises to car-maker Nissan, select
committees have begun a series of detailed inquiries and leaks, accidental or
otherwise, from Ministers, consultants and advisors have already broken down
some of the strict secrecy May promised around Brexit.
The
constitutional debate over Brexit has focused on the role of Parliament and
government, given the vagueness around article 50’s reference to “constitutional
arrangements” in the UK where the constitution is uncodified. The new May
government asserted that it was for government to declare and trigger article
50 and conduct the subsequent confidential negotiations. Parliament countered
that the legislature must play a role, given the doctrine of Parliamentary
sovereignty that underpins the UK’s uncodified constitution, and the process
must, necessarily, be open. The story of Brexit, so far, is of a government
seeking secrecy being forced to commit to increasing the openness of the
process: not just about a “hard” versus “Soft” Brexit but a secret versus a
transparent one.
The
crux of the tricky debate between openness and closure and the extent to which
Parliament (and the public) has a right to know and shape the negotiations. On
the one hand, confidentiality is recognised in many areas of life where
openness would inhibit genuine expression, from juries to peace negotiations
(Chambers 2004: Bok 1986). Academic studies offered equivocal evidence.
Stasavage’s 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 or the pushing of actual
negotiations to the shadows:
“[…]
when constituents can better observe decision making, this has the advantage of
disciplining representatives, but transparency can also have costs involving
increased incentives for representatives to posture and to ignore private
beliefs about appropriate policies” (Stasavage 2005, 3).
Others
have pointed to the possible counter-productive effects on negotiations of
openness in encouraging hidden behaviour (Prat 2006). Yet the right and need to
be involved, and the demands of democratic legitimacy through deliberation,
offered equally persuasive demands amid so far-reaching a change (Chambers
2004). David Allen Green points out this tension is made more complex by the
fact that the real source of problems and potential audience is not the EU 27
but “her true Brexit opponents are the UK’s media and politicians and, by
extension, the public” who must be persuaded (30 November 2016).
The
government initially sought to cling to the confidentiality principle, and use
its secretive prerogative power, the vestige of Monarchical power that can be
used to declare war or authorise treaties:
“The
royal prerogative refers to those powers left over from when the monarch was
directly involved in government, powers that now include making treaties,
declaring war, deploying the armed forces, regulating the civil service, and
granting pardons.” (Poole 2010, 146).
The
prerogative remains ill-defined with Parliament taking
an increasing role in a number of the areas including war-making and treaty
assent. Nevertheless, it remains an area of “constitutional exceptionalism”,
surrounded with the “mysteries of state, and the cloaking of executive power”
which is only “semi-impervious to norms of legality” (Poole 2010, 154-155). The
“defining characteristic of the prerogative is that its exercise does not
require the approval of Parliament” (Poole 2010, 146). The government’s seeming
tight information control was reinforced by constitutional conventions such as
collective responsibility that binds Ministers to public unanimity and
confidentiality. Prime Minister May promised strict confidentiality and that “there
will be ‘no running commentary’ or any substantial disclosure from Downing
Street” on the negotiations (Green 30 November 2016).
The
government offered some access to the process. In September 2016, the new
secretary of State for Brexit committed to being “as open as I can. More
accurately, the Government will be as open as they can”. He argued 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.”
(House of Lords EU 2016).
He also spoke of 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” (House of Lords EU 2016).
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).
It
went on to acknowledge the difficulty around complex negotiations and the need
to not “show a hand” early: “at the same time, some of the most important and
complex aspects of the forthcoming negotiations on a new relationship will be
sensitive… and will require a high degree of confidentiality” (House of Lords
2016a).
Some critics
were less than convinced by the need for government secrecy, in part because it
appeared to them that the government were not shielding a plan but seeking to
hide the lack of a plan and possible divisions within government “the government does not
want to involve parliament or the courts any more than it can get away with… Perhaps
it thinks it will lose votes or that Brexit itself will be delayed. Or perhaps
it is seeking to be shielded from embarrassment if its lack of thought and
capability about Brexit are exposed” (Green,
10 October 2016). A leading think-tank also warned the government that “silence
is not a strategy” (IFG 2016a). In November 2016, a leaked memo by Deloitte
revealed that “no common strategy has emerged” for Brexit and that ministers
were split on the issue (Guardian, 15
November 2016). The government’s justification and card game analogy was also criticized:
“Those who say the
government should not reveal its hand are mistaking Brexit negotiations for a
backroom game of cards. Obscurity and secrecy are the enemies of a sustainable
Brexit. The aim of the negotiations is not to defeat any opponent (and Britain’s
‘opponents’ know the strengths and weaknesses of the country’s ‘hand’ as much
as the UK does), but to ensure there are agreements that work in practice, are
acceptable to those who have an interest, and have legitimacy in principle. The
best way – indeed, the only way – for Brexit to be a success is through
openness and accountability” (Green, 10 October 2016).
It was pointed out that “Brussels
probably knows the strengths and weaknesses of the UK negotiating position
better than the UK itself” (Green, 30 November 2016). Indeed, the EU 27, from
Prime Minister and Presidents to ambassadors, have already offered a “flow of
information about Brexit” and “a detailed and helpful running commentary” that
has exposed the UK’s “lack of a practical plan” (Green, 30 November 2016). As a
consequence, the secrecy is for the government’s domestic audience:
“Ministers know that ‘making
a success of Brexit’ is a domestic political objective. And so, the lack of communication
serves as a way of […] structuring expectations [and] cloak[ing] the government’s
ongoing inability to form a settled view on which of the available outcomes is
preferable” (Green, 30 November 2016).
The government’s plan for a
“closed”, prerogative based Brexit came unstuck in in November 2016 when the
High Court ruled in R (Miller) v
Secretary of State for Exiting the European Union [2016] that, in passing
the European Communities Act 1972 and the constitutional rights in entailed,
government ceded its prerogative powers and Parliament, not the executive, must
have the ultimate say (Elliott 2016). In the wake of the high court ruling, one
legal scholar argued that “Parliament must be given clear rights to notice, to
comment on key negotiating positions and draft agreement text, and to a
response from the Government to its comments” “(King 7 Nov 2016). After the
November High Court judgement greater openness made inevitable:
“eventually, the government
will have to adopt a broader, more collaborative and more open approach to the
process, as there is no alternative to making a success of it” (FT, 4 November 2016).
In the wake of the
judgment, the government also committed to providing the same openness to UK
MPs as the EU Parliament-though this carried a twist, as EU MEPs currently have
only ‘closed oversight’ through heavily protected reading rooms or meetings
that the UK government promised to emulate. This can mean documents are
restricted to certain MPs in a certain time and place, with no disclosure,
copying or reproduction allowed:
“[…] arrangements lead to
parliamentary oversight taking place behind closed doors or more simply stated,
to closed oversight. Closed oversight means that both the manner in which
oversight is conducted and the results of oversight are not public to the other
members of parliament and to the general public.” (Abazi 2016, 12).
As of this moment, much
depends on the Supreme Court ruling in early December 2016.
Looking
further into the future, the impact of Brexit could get more complicated. Since
the 1990s Northern Ireland, Scotland and Wales have been given representative
bodies, a process that reflected but also accelerated the creation of distinct
territorial politics across the UK (Jeffery 2009). Cameron and now May have
also strongly pushed greater regional government for the English regions, with
new city and regional elected mayors and combined ‘super’ local authorities
(Blunkett et al 2016). More power to the nation and regions is a solution both
to the different Brexit votes (Scotland and Northern Ireland voted to Remain)
and a means of offering citizens greater control following a result seen as a
backlash against remote elites (Inglehart and Norris 2016). This may have two
effects.
First,
devolved bodies can be party to negotiations and involved in accessing details
through bodies such as the regular meetings of heads of devolved bodies and
promised sub-groups: ‘the devolved governments and legislatures should enjoy
formal participation in the consultation process in rough parity with the
Westminster Parliament’ (King, 7 November
2016). This will make the process more collaborative but, by including more
actors (some of whom are opposed to Brexit) may make it more likely to leak.
Second,
in the longer term the new elites and centres may develop their own agendas and
polices. The devolved Scottish government and Northern Irish Executive have
both drawn up separate Open Data agendas and plans along different time scales
(Worthy 2015a). The Scottish government already has its own separate FOI
legislation that has been extended further than the UK law to leisure trusts
and certain privately run schools. Scotland’s Open Data plan for 2015-2017
aimed for a baseline of re-publishable data and a new rediscovery website, with
a promise of an iterative Open Data strategy developed with Scottish civil
society (Scottish Government 2015). The Northern Irish Executive has
established its own Open Data roadmap covering 2015 and 2018 with an aim of
becoming ‘digital by default’ and creating a single Northern Ireland Open Data
node (Department of Finance 2015). The civil society networks supporting Open
Data also has separate networks covering the devolved institutions. Though it
is not clear what divergence will result, the implications are of policy
deviance in motion.
Other
institutions may also follow suit: The UK Parliament has also drawn its own
Digital Democracy agenda including publishing voting details and records as
Open Data by 2016 and, more far-reaching, pushing for online voting by 2020
(Digital Democracy 2015). Stronger English local government may also provide a
site of greater innovation. Despite the central attempts at control, local
authorities have also experimented with a whole host of bottom up initiatives
working with a range of groups and other public bodies (LGA 2012: Worthy 2015).
Officials in local government also display higher knowledge and awareness of
Open Data and greater use of both their and own and others” data in their
everyday work. A set of devolved “plus” institutions could easily make some
very interesting regional variation in openness across the UK. The UK
government’s 3rd NAP recognises this by promising “ongoing
collaborative approach to open government reform” though it is not clear
whether policies will be merged or overlap.
There
are various scenarios for how Brexit and Open Government can unfold. Perhaps
the best-case scenario, from the viewpoint of the government, is that openness
policies pushed by government become an identifying mark for the new
administration. The new policies could help the Prime Minister establish a
distinct reform programme while re-energising the government and, given the
emphasis on the private sector, the economy at a precarious time. Greater
openness around Brexit itself may help to legitimise, and even democratise, the
process and bind some of the national, societal and inter-institutional
fractures opened by the referendum.
The
worst-case scenario would see openness consumed by Brexit. Policies would stall
with only superficial change actually masking inaction or even pushback, as
seen with the Regulation of Investigatory Powers legislation. The Brexit
process could pitch a secretive “bunker mentality” prime minister and
government against a legislature (and perhaps the devolved assemblies and
courts) seeking to force them open, with uncertain results for who controls the
process of leaving the EU. As an unelected takeover Prime Minister with a small
majority, May is likely to face party instability and a relatively short-time
in office (Worthy 2016). There may be less time, but more need, for openness
than she thinks.
Abazi, Vigjilenca (2016), “Closed
Oversight: European Parliament’s Access to Official Secrets”, Cambridge Journal of Comparative and
International Law, 5 (1), Forthcoming Available at SSRN:
https://ssrn.com/abstract=2764745
BBC (2011), “Theresa May: I won’t resign
over UK Border Agency row”, 8 November 2011:
http://www.bbc.co.uk/news/uk-politics-15632423
Bauhr, M., and Grimes, M. (2014), “Indignation or
Resignation: the implications of transparency for societal accountability”. Governance, 27 (2) :
291-320.
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