News 17th December 2012

National Action Plan priority: Extending the principles of openness and transparency

by Tim Hughes

Tim is coordinator of the UK Open Government Network.

Where: The Open Data Institute

When: 29 November 2012

Introduction

On 15 November, members of the Cabinet Office Transparency Team and the civil society network met to scope out the areas of the UK’s next open government National Action Plan. Four areas were identified based on the UK Government’s priorities and the civil society network’s vision for the Open Government Partnership:

  • Extending the principles of openness and transparency
  • Moving forward the global agenda on openness and transparency
  • Participation and open policy making
  • Anti-corruption

A document was drafted after the 15 November session, based on the civil society network vision, that sets out some examples of policies and issues that the civil society network would like to consider under each of the themes.

Over the coming weeks, a session will be on each of these areas in turn to begin discussions with relevant policy makers regarding the policies and commitments that could be included under each. A schedule of these meetings can be found on the Open Government Partnership UK website.

On Thursday (13 December), we held the second session in the series, on ‘Extending the principles of openness and transparency’. The following sets out the general areas of discussion, rather than providing a verbatim account.

Attendees

The session was attended by Simon Burall (Involve), Tim Hughes (Involve), Sophia Oliver (Cabinet Office), Ilaria Miller (Cabinet Office), Anne Thurston (International Records Management Trust), James Lowry (International Records Management Trust), Andrew Parsons (Public Concern at Work), Graham Gordon (Tearfund), Beck Wallace (CAFOD), Andy Williamson (Future Digital and associate at Involve), Javier Ruiz (Open Rights Group), Anne Lindsay (CAFOD), Farah Ahmed (Cabinet Office), Pete Lawrence (Companies House), Oliver Lendrum (Minister of Justice), Steve Wood (Information Commissioner’s Office).

Detail in the National Action Plan

There was some discussion regarding the level of detail that we should be looking to include in the National Action Plan. It was agreed that there should be a combination of principles – setting out a framework for where government wants to get to – and some detailed actions against which the government can be held to account. Some of these actions will be for 2014, but others might be longer term.

It was suggested during the course of the meeting that it would be important to consider how all of the different policies relate to each other by, perhaps, conducting a mapping exercise.

Records management

The session kicked off with a presentation by Anne Thurston (International Records Management Trust) on the importance of government records to openness and transparency. Anne spoke about Norway’s Electronic Public Records system, which ‘enables central government agencies to publicise their public records online, thereby achieving proactive and reactive disclosure.’ Here are her slides, which give more detail:

It was suggested that there’s a need to identify the similarities and differences between the UK and Norway (e.g. the UK already has a presumption to publish). It was suggested that IRMT might do such a comparison.

It was also questioned whether work had been done on the costs and benefits of the Norwegian system, but none was known of.

Freedom of Information

The civil society network has stated that it wishes to see:

The principles of transparency and openness to apply across all sectors to organisations providing public services’ and that ‘The Freedom of Information Act […] should also apply to any organisation delivering public services.

A Ministry of Justice representative reported that, on 30 November, the Government published its response to the Post Legislative Scrutiny for FoI, which sets the direction of travel for the remainder of the Parliament. The focus of this is on the technicality of the legislation.

On whether Freedom of Information could be extended to other organisations or not, it was stated that FoI is already very extensive – covering over 100,000 public organisations, and that the government is already looking to extend FoI to some other organisations performing public duties. However, it will not be extended to contractors due to the Government’s commitment to reducing the regulatory burden on companies. It is instead adopting a light touch approach of encouraging contractors to respond voluntarily, but may consider other approaches if this does not work.

A civil society network member highlighted that as more services are privatized, there are more and more organisations not properly accountable for what they do, which doesn’t work for open government or democracy. This led to a conversation regarding whether the civil society could state its position on issues of principle in the National Action Plan, even if this contradicted the position of the government. It was suggested that this could be possible, with both partners stating their position on something, and stating the compromise they have reached (e.g. Working together we got to here, and came up with these practical actions, but government’s position is this and civil society’s is this).

The need for something workable and not too onerous was also asserted, but it was countered that while this was important, this must not trump accountability and transparency.

Another issue that was raised was the variability in the way that FoI is currently handled across public organisations.

It was questioned whether the role of civil society can adapt to do things that would otherwise have been implemented through alternative FoI legislation.

Whistleblowing

The NAP Priorities document currently sets out the following in regards to whistleblowing:

Loopholes in the Public Interest Disclosure Act, which protects whistleblowing, should be closed. For example, protection of workers should be widened to include comprehensive protection for all GPs, NEDs, LLP members, partners, foster, carers, and student nurses.  The categories of wrongdoing should be widened to include gross waste, gross mismanagement and abuse of authority (covered by US protection).  The good faith test should be removed from the act as it can act as a barrier to honest and genuine whistleblowers.  Vicarious liability should exist within the act as there is no protection for workers bullied and harassed by co-workers.  There should be protection for blacklisting or where a whistleblower is denied a job where whistleblowing history is revealed.  There should be greater transparency and regulatory oversight of 70% of whistleblowing claims that settle in private.  The tribunal should have the power in the event of a successful claim to make recommendations on how the wrongdoing should be addressed or on how an organisation improves their response to whistleblowing.  Claims under the act should be exempt from the tribunal fees regime that could see a whistleblower who is victimised for exposing wrongdoing pay £1200 to seek legal redress.

A network member suggested that informal methods of preventing whistleblowing are a problem, with, for example, informal deals and sweeteners being used to encourage employees not to whistleblow. However, it was stated that this is already illegal and, if it were still being done, demonstrates the importance of increasing the knowledge of employment law.

The question of how much information should be made open about an individual’s departure was raised, which brings up some difficult data protection tensions. It was suggested that this depends on the level of seniority.

Companies House

The NAP priorities document currently sets out the following in regards to Companies House and corporate transparency more broadly:

Government to publish the data it holds on companies, including that held by Companies House, and where necessary broaden the data it collects, for example on nominee directors and shareholders (whether they are nominees and who they are acting on behalf of) and beneficial owners.

Companies House is currently conducting a strategic review, which will be published in April/May, which fits well with the NAP development schedule.

The strategic review process is considering such questions as what information the Companies House register should contain, how it should be used, and who should own it. It will also be considering what services government should be providing in relation to the register, what it should not be doing, and what it should be doing on a level playing field (i.e. in competition) with others.

There are also questions regarding the extent to which information in the register is validated and whether it should include a register of directors as well as a register of companies.

It was agreed that there is the potential of joining up the NAP development and Companies House’s strategy development, to see what’s feasible and what could fit in the NAP.

It was stated that it’s important to answer the question of: What would data from Companies House contribute to civil society? It was suggested that this could be done with the Open Data User Group, and Javier Ruiz (Open Rights Group) agreed to lead the process, with Andy Williamson volunteering his help.

Lobbying register

The NAP Priorities document currently states that the civil society network wishes to see:

A statutory lobbying register that applies across the board, including in-house corporate lobbying. This must be an effective measure and must not impede citizen participation in policy making. The register should apply to lobbying of the UK Government, Parliament, devolved legislatures or administrations, regional or local government or other public bodies. It should apply to organisations/individuals who engage in lobbying either as self-employed individuals, as employees of an organization or on behalf of third parties.

The Government is currently taking stock on the lobbying register, based on the responses to the Cabinet Office’s consultation – Introducing a Statutory Register of Lobbyists (20 January 2012) – which were published in July. If there is a decision to draw up a draft bill by the end of the Parliamentary session, then the timing of this is quite good for the development of the National Action Plan, particularly as the lobby register is an existing coalition commitment that fits well with the principles of open government. However, there is a need for the civil society to reach a consensus on what it thinks the register should look like, as differing opinions have previously been expressed.

It was proposed that there should be a dedicated discussion on the lobbying register, which Ilaria Miller (Cabinet Office) offered to help to facilitate. The discussion will be arranged by a core group of people, but an open invite will be issued to others to attend as well.

Contestable policy making transparency

An element that’s not currently in the National Action Plan Priority Areas document, but that was suggested should be included, is the transparency of contestable policy making.

If the policy making process is to be opened up to third parties, which it was suggested is a good thing, it is important to know who funds them. There should be a presumption for think tanks and other organisations providing policy advice to be transparent about their funding.

Next steps

It was agreed that in order to develop the detail of each of the policies and issues, the document would be split into specific elements for smaller working groups to focus on and to develop.

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