When we think of the sins of Matt Hancock, failures of transparency might not be the first thing we jump to: for some, it will be that the minister most responsible for telling us to socially distance was doing anything but that, while for others it will be how he managed the pandemic – and the procurement needed for it.
But amid the scandal that brought down the former health secretary, the revelations that he was conducting government business on Gmail and WhatsApp – while not as eye-catching as his other misdeeds – should not be overlooked. For they lay bare a broader transgression, about evading accountability and good governance. And Hancock is far from the only transgressor.
For as long as the UK has had laws allowing the public access to government documents – which is not as long as you might think – UK public bodies have found clever ways to avoid them, or at least to make it more difficult.
If you’re a journalist, campaigner, or interested member of the public, having a right to access information on the decision-making of government departments, NHS organisations, schools and councils is a great tool for democratic accountability.
If you’re a minister, civil servant, or senior executive in one of those bodies, it can clearly be a colossal pain in the neck: digging out records takes time, no-one likes their embarrassing mistakes to be revealed, and many public bodies have got used to working in a climate of secrecy.
For that reason, the premise of the Freedom of Information Act was something of a radical one: any request made in writing to any public body would require a response within 20 working days, with a presumption in favour of disclosing the information, provided the body actually had the information, and it could be collected in a reasonable amount of time (defined as either 18 or 26 hours, depending on the size of the organisation).
Other people’s personal information would be exempted, but otherwise most exemptions – for information that could be commercially sensitive, damaging to foreign affairs, or similar reasons – were ‘qualified’, meaning that organisations were expected to weigh up the public interest of disclosure against keeping the information secret.
The new rules were sufficiently contentious to public officials that they were delayed for five years before they came into force: the Act was passed in 2000, during Tony Blair’s first term, but didn’t come into effect until 2005, just two years before the end of his premiership.
Predictably, government officials and journalists had very different ideas of the public interest of disclosing information: departments quickly made lavish use of the exemptions available to them to keep as much contentious information private as possible.
They found other tricks, too – the FOI act only allows public bodies to extend the 20 days they have to respond if they are weighing up the public interest of disclosure. Just having a lot of requests, or being busy with other things, was not a valid reason under the law.
The response was simple: every time a public body wanted more time for the request, they simply decided to agonise over the public interest question. Twenty days could soon become 40, or 60, or 80, or even more.
There was, then, no golden era of disclosure. There are enough loopholes in disclosure laws for the public – or even similar rules regarding what gets handed over in response to questions from MPs – to help even the most guileless public official dodge all but the most dogged of requesters if they so wish.
But for this current government, that doesn’t seem to be enough: it is hard to conclude when looking at some common practices of the current administration that the people at the top of government have stopped merely swerving the UK’s laws and rules on information about official decisions, and just started merrily breaking them instead.
One of the biggest supposed tricks ministers and their special advisors have seemed to hit upon is the idea of avoiding having to hand over documents by preventing them being created in the first place.
The problem with this is said ministers and officials often think they’re cleverer than they actually are when they come up with such wheezes. One long-running trick dating back at least a decade was making comments on documents using post-it notes, rather than leaving notes in the margins – with the idea that the note could be binned if the document needed to be disclosed, preventing the embarrassing annotation being disclosed.
So far, so clever – except for the fact that it was quickly ruled that if a post-it note was part of the process of official decision-making then it qualifies just as much as an official document as does the piece of paper it is stuck to, meaning it should not be binned. An official could, of course, still hope to throw away the note unnoticed – but just as shoplifting doesn’t magically become legal if you’re not caught, so too does this practice not actually ever become permissible.
The digital era gives rise to much more comprehensive versions of this trick. As a special advisor to Michael Gove during his time as education secretary, Dominic Cummings (and other advisors) got caught conducting official business on personal Gmail accounts, again in an apparent bid to avoid official disclosure rules.
Wrongly believing it’s not official information if it’s not on an official account, they thought the Gmail trick would avoid FOI laws. Again, legally it did not: whether it’s on an official government account, Gmail, WhatsApp or anything else, if it is communication about government business, it is supposed to fall within the scope of the law.
What started as a niche trick – and a controversy at the time – has become typical practice. Cummings’ intemperate outbursts about his time in government clearly show discussions taking place on WhatsApp, while at least a third of the cabinet are using the encrypted messaging app Signal – even as the government claims to wish to crack down on such secure messaging services.
Multiple departments face allegations of regular use of personal email accounts for official business.
This isn’t a clever trick to avoid scrutiny – it’s a straightforward flouting of the rules, with very little in the way of consequences. The information commissioner, who is the regulator of both privacy and freedom of information rules, has shown little interest in supervising FOI after her remit expanded due to boosted data protection (GDPR) rules opening the way to high-profile but low-impact battles with big tech.
Accountability rules and document keeping can seem like small fry, but they go far beyond just what we can put in newspapers or what campaigns can find out. Getting evidence of how decisions were really made is important for later legal challenge or public accountability, as well as making sure government keeps institutional memory and avoid repeating needless mistakes.
The people responsible for making our laws are, in ways big and small, showing no interest in actually following them. Why do they expect the rest of us to pay attention?