Robert Hazell

The impact of the freedom of information act on central government in the UK: does FOI work?

PART I: FREEDOM OF INFORMATION IN THEORY Introduction What are the Objectives of FOI? Whitehall and Freedom of Information Assessing the Impact of FOI in Britain PART II: FREEDOM OF INFORMATION IN PRACTICE How FOI Works Has FOI Led to more Transparent Government? The Culture of Secrecy Has FOI Increased Government Accountability? Civil Service Neutrality Ministerial Accountability Effective Government and the Quality of Decision-making The Cabinet System of Government Has FOI Increased Public Understanding of Government Decision-making? Has FOI Led to Increased Trust in Government? Has FOI Led to Increased Participation in the Political Process? Has FOI Met its Objectives? Conclusion Appendices Appendix 1: How Does the UK FOI Perform against Legislation in Australia, Canada, Ireland and New Zealand? Appendix 2: The Requester Appendix 3: Ladder of Openness and Participation Appendix 4: Methods Bibliography

Pre-Appointment Scrutiny Hearings in the British House of Commons: All Bark, or Some Bite?

In 2007 British Prime Minister Gordon Brown agreed that House of Commons committees should start holding pre-appointment hearings for key public appointments. This was initially welcomed by MPs, who viewed it as an important step towards limiting executive power and strengthening the role of parliament. However, following the appointment of the Childrens Commissioner against the advice of the relevant select committee, many MPs became disillusioned with the hearings. Based on extensive interviews with those involved in the appointments process, this article argues that while committees may lack formal veto power over appointments, they do have considerable influence. Most candidates said they would not have taken up their appointment against the advice of the select committee. So pre-appointment hearings should not be dismissed as pointless, but rather seen as an important mechanism through which committees can exert influence over public appointments. This tells us two important things about the powers of legislatures. First, it confirms that legislative influence is far more subtle than the simple exercise of veto powers, as scholars have long noted. But second, it also demonstrates that even the most central actors in the process (the MPs) may not appreciate this fact.

Magna Carta and its Modern Legacy: Magna Carta … Holy Grail?

© Cambridge University Press 2015. Magna Carta is revered by citizens and human rights activists all over the world. It has become a symbol for limited government and constitutionalism used by political theorists, constitutional drafters, political elites and even ordinary citizens to justify constraining political power. Thus, when Jay-Z entitled his most recent album Magna Carta… Holy Grail, he was signalling his aspiration to constrain the power of the recording industry, just like Magna Carta was meant to constrain King John. The irony is that ‘[i]n 1215 Magna Carta was a failure’. King John completely ignored the edicts set forth in the Charter, which led England into the very civil war that the Great Charter was meant to prevent. Why, then, do we celebrate this historic piece of parchment? Put differently, how has the significance of Magna Carta come to be equated with that of the Holy Grail? This volume sets out to answer the question. In doing so, it makes two contributions to the extant literature. First, it co mmemorates Magna Cartas 800th anniversary by detailing its influence in the United Kingdom and abroad. The book reviews the existing historical and legal literature on Magna Carta as well as providing some new insights about its influence. These new insights are generated by moving to a more systematic conceptualisation of influence. Second, the volume begins a dialogue with the literature on constitutional design. This is a quickly evolving, interdisciplinary literature that spans economics, history, law, political science and sociology. We believe that those interested in constitutional design have much to learn from modern understandings of Magna Carta, and we therefore provide some examples of how reflecting on Magna Carta can provide lessons for those interested in modern constitutions. This introductory chapter proceeds in three sections. The first provides a bit of history about the making of Magna Carta and its contents. The second defines what we mean by influence and provides a typology for analysing the influence of Magna Carta.

Introduction: Forecasting Constitutional Futures

This is a book with a difference. It is different in three respects. It is the first study of constitutional change which has systematically used futures methodology and forecasting techniques in combination with political and legal theories. These techniques are still controversial and seldom used by academics. We have found the techniques provide a disciplined but creative framework, which has proved intellectually stretching, and we hope the reader does so too. We also hope that it may encourage other academics to use futures methods in appropriate contexts. We explain our methodology and use of forecasting techniques at the end of this chapter.

Conclusion: Where Will the Westminster Model End up?

This concluding chapter draws the main threads of the book together and makes a final set of predictions about likely developments in the UK constitution as a whole. It does so at a high level of analysis, focusing on the big picture rather than the detailed analysis in the preceding chapters. The chapter focuses on the constitutional architecture and the shifting balance of power between the three branches of government. The main theme is the growth in power of Parliament and the judiciary relative to the UK executive and continuing moves by the executive to delegate functions to independent bodies, in attempts to restore trust, which may prove self-defeating. The analytical question posed is where the Westminster/Whitehall model will end up, as a result of all the forecasts presented in the preceding chapters. The chapter is divided into two parts, beginning with half a dozen broad predictions and ending with a set of forecasts about the Westminster Model.

Hung Parliaments and the Need for Clearer Rules of Government Formation

The general elections of 2017 and 2010 produced hung parliaments in which no single party could command an overall majority; in May 2015 the UK only narrowly avoided that outcome. When a parliament is hung, more than one potential government can be viable, and the constitutional rules that determine who has the first right to form the government can thus have a decisive influence on which government forms. In the past, the UK has applied several potentially contradictory rules (based on conventions and principles), which do not all follow an equally democratic logic. This status quo is problematic because it can generate political controversy and uncertainty, in addition to jeopardising the Monarchs role in the government formation process. A reform that enables parliament to elect the leader who will be tasked with the formation of the next government would resolve these problems and provide constitutional clarity.

English question or union question? Neither has easy answers

While devolution has provided a stronger political voice for Scotland, Wales and Northern Ireland since the late 1990s, it is only in the past few years that English public opinion appears to have become exercised by the lack of similar arrangements for England. The renewed debates over the character of the Union after the Scottish independence referendum reveal a desire for ‘fair treatment’ of England within a Union conceived as a partnership of equals. At the same time, numerous proposals have been made for devolution of power within England, reflecting long-held concerns about the territorial hegemony of London. Solutions to the former issue include English votes for English laws and an English Parliament. Solutions to the latter include city-regions, strengthened local government, the first of these appears to be the governments preferred route, in the light of the recent ‘Greater Manchester Agreement’. However, none of these ‘solutions’ can count on being implemented.

Has Freedom of Information Increased Government Accountability

Increasing government accountability was the second of the two ‘overarching’ FOI objectives. However, FOI is not a direct accountability mechanism in and of itself. It is a potential tool which provides information that can be used by accountability mechanisms (see Chapter 2). This chapter and Chapter 10 draw on Philp’s definition of accountability to ask whether and how FOI brings about accountability, who is holding whom accountable for what and where (Philp 2009: 28). The whom and where will be dealt with in Chapter 10, as they relate to ministerial accountability.

Answering the English Question

Whenever devolution within the United Kingdom has been proposed, the ‘English Question’ has always emerged as its inevitable corollary. If there is greater home rule for the rest of the United Kingdom, so the argument goes, should a similar ‘solution’ not also apply to, or within, England? Should England as a whole have its own institutionalised political voice or, alternatively, should it be divided into devolved units of government? Since 1998, England has been the gaping hole in a devolution settlement that has still affected only 15 per cent of the UK population (or just over a quarter if the strengthening of citywide governance for London is deemed a devolutionary measure). Until recently, the English barely seemed to care but that may be starting to change. In the face of recent evidence that the people of Scotland and Wales have an appetite for more nationalist governments and further autonomy, there is a growing perception that the English may be ‘losing out’. Clear answers to the English Question, however, seem as far away as ever; not least because of the bewildering array of ostensible solutions on offer.

Westminster as a three-in-one legislature for the United Kingdom and its devolved territories

Devolution was expected to reduce the legislative burden on Westminster and to improve the quality of legislation applying to the devolved territories. But post–devolution Westminster is still an overburdened legislative factory, producing more legislation for Scotland, Wales and Northern Ireland than their devolved institutions. One half of all bills passed at Westminster extend to the parts rather than the whole of the UK, but devolution issues in these bills are poorly scrutinised. In the light of devolution, territorial issues matter more, not less. Left to its own devices, Whitehall is not going to improve matters. Parliament can help to develop a set of principles to apply to devolution issues in legislation by working in closer partnership with Whitehall and the devolved institutions. Because of the fragmentation of the territorial committees in the House of Commons, leadership is more likely to come from the House of Lords.