Category: Public administration

Avoiding Freedom of Information through non-disclosure agreements

Why are public officials signing up to non-disclosure agreements about public procurement?  It’s fairly obvious why private contractors might want issues to be confidential;  they don’t want to be subject to public scrutiny, they don’t want to be dealing with members of the public, and they may just get a commercial advantage from their inside information.  It’s not clear that public services should be going along with that.

Last July, I attended a public meeting about the roll-out of faster broadband in my area.  The council official taking the meeting explained that 98% of the county would be covered in due course, and that some leftover communities would have to band together to develop their own systems, but he couldn’t tell us which ones, as he and other council officials were bound by a contract protecting the ‘commercial confidentiality’ of the supplier.  We might, he told us, be able to spot where the exchange cabinets would be by looking out for them in the street.  There was something wrong with that.  Part of the problem is that asking community organisations to devote time and effort to a  process that in most cases will be superfluous is hardly reasonable.  Trying to get information about government-sponsored  activity by sending out the Boy Scouts to track it down doesn’t make much more sense.

At the time, I came back home and directly sent off a FoI request to Digital Scotland, which was answered with irrelevant information.  Then in August, I asked for a review, which hasn’t been replied to.  Since then the information affecting my area has been made public – and in any case, I know where the cabinet is, so I was able to ask the people in a white van when they pulled up next to it with a clipboard.   Today I’ve been discussing the issues with someone from the Scottish Information Commissioner’s office.  All the Commissioner can do is to determine whether a decision not to release information is lawful and consistent with the legislation.  In both cases, the answer is ‘yes’; there may have been a minor breach in failing to review, but what I’d get from pursuing that is access to information which is now public anyway.

There is a point of principle here.   It seems to me that information about a publicly funded project, developed to serve citizens as a matter of public policy and dependent exclusively on development in public places ought to be public knowledge.  The effect of contracts that protect commercial confidentiality is to nullify the laws we have on Freedom of Information.    That’s hardly consistent  with the standard principles of governance, transparency and accountability we expect from public services; and it’s certainly not in the public interest.

HMRC make hardly any mistakes

I was looking up some figures on benefit expenditure, for a paper I’m giving in a few days, when I came across this  little graph from a parliamentary briefing.

fraud and error HMRC

The figures in the bottom half  are available in an HMRC paper published last June.  According to Table 5, HMRC made mistakes in the claimant’s favour in 20,000 cases, but it didn’t cost the taxpayer anything; and they made mistakes in their favour in 30,000 cases, saving £10m or about £330 a throw. This is an remarkable record – an incredible achievement, one might say. One wonders why they even bother with official error regulations when they hardly ever get anything wrong.

Further note, October 2015:  While I was trawling through the links on the blog (an unrewarding chore) I found an updated version of the HMRC paper published in June 2015, and I have altered the link to fit the new version.  This still claims that mistakes in the claimants favour cost nothing, but the estimate of £10m in HMRC’s favour is now to be divided between 90,000 people rather than 30,000.

Quotas: another zombie argument

The Guardian reports that the Labour party is considering, yet again, introducing quotas to protect the position of women and minority ethnic groups.  This time it’s about the English judiciary, but whenever the idea of quotas is mooted, it’s generally intended to protect the position of disadvantaged groups.  Good motives, however,  do not justify bad ideas.  What the proponents seem not to grasp, no matter how many times it’s been shown to be the case, is that quotas are self-defeating – either ineffective, or counter-productive – a thoroughly bad way to respond to disadvantage.

First, quotas are exclusive as well as inclusive – they define who can’t be appointed as well as who can.  So, people from the ‘wrong’ minority ethnic group are disadvantaged relative to others from the ‘right’ group.  That is the source of a string of cases in the USA, notably Bakke and De Funis.  Second, quotas become ceilings.  Elster, in Local Justice (1992), compiles a long list of evidence that while quotas may initially help to redress the balance, they shortly become devices to stop the process of equality going any further.   Third, even before the ceiling is reached, quotas act to slow down the process of redressing the balance, deterring and limiting applications from the very people they’re supposed to help.

There are decades of evidence to draw on – that’s why quotas were made illegal in the Race Relations legislation of the 1970s.   But this is another of those ‘zombie’ arguments.  It doesn’t seem to matter how often it’s exploded, cut down, disappeared or  confined, it just carries on shuffling towards us.

Remembering the password

I don’t know whether, like me, you find it difficult to remember all your passwords.  All sorts of websites demand nowadays that you should provide a secure password.  Passwords have got longer, more complex, and more convoluted.  Many people use passwords that are almost worthless in security terms, such as “password” or “12345”; many recycle the same password to several sites; some of us just forget what the password is and need numerous reminder; others write the password down and leave a note next to their computer.   So it’s not wholly surprising to be told  that when it comes to public services, people are having difficulties with security processes. Last week, Howard Shiplee, charged with Universal Credit,  told the Work and Pensions Committee that claims for UC couldn’t be digital by default because they couldn’t satisfy the elementary requirements of secure service delivery.  Jason Feeney, Benefits Director at the DWP explained that people were falling at the first hurdle in claims for Personal Independence Payment, because they couldn’t get past the security questions.

Mark Ballard, of Computer Weekly, pins part of the blame on the Cabinet Office, which has pressed digital by default services as a way of saving staff costs.  The Cabinet Office has been issuing bullish statements about its wonderful Identity Assurance Programme (IDA), which is supposed to offer secure online access:  “a simple, trusted and secure means of accessing public services”.  Ballard reads the abandonment of ‘digital by default’ in UC as a reflection on the effective failure of IDA.

I’m not a computer wonk, and I’ve only cast a cursory eye over the Government Digital Service’s Guide to Good Practice, published this month.  But if there was anything there about the experience of service users, quality of service, accessibility or citizenship, I missed it.

Seven principles of public life: time to rethink

There has been a series of scandals in public administration in Britain, where people have been neglected or abused, and those in authority have ignored them; but the process of governing ‘ethical conduct’ in public administration in Britain does not begin to address the issues.   I’ve just had a paper published in Public Money and Management (2014, 34(1) pp 11-18).  This is the abstract:

The Seven Principles of Public Life, developed by the Nolan Committee, claim to be concerned with the development of an ethical culture, but they have been imposed by central authority. The principles are muddled and unclear, but beyond that they have signally failed to relate to many of the key ethical issues which have arisen in public services in the intervening period. This paper reviews both some of the alternative principles that might be considered, and the possibility of a different approach based on virtue ethics.

Despite the official publication date of 2014, it’s been online since 29th November.  However, the paper is currently behind a paywall, so only University-based readers are likely to have access to it for the while.

The bedroom tax and the test of unreasonableness

There is another report of a tribunal deciding that the bedroom tax should not apply if the bedroom is not usable, or if it is too small.

The traditional principle in administrative law is that  the courts can only intervene if a decision is very unreasonable – so unreasonable that a decision maker could not have made it.  This is referred to as “Wednesbury unreasonableness”, in Lord Diplock’s words “a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his  mind to the question to be decided could have arrived at it.”  When I first made the argument for applying the statutory standard to room size, I thought the basic case looked like this:  landlords have a reasonable discretion, and no-one can complain that applying a statutory standard isn’t minimally reasonable, so if the landlord can be persuaded to reclassify rooms, their decision can’t really be challenged.

The tribunals, however, are going much further than that.  For an explanation, I’m indebted to another blog, Public law for everyone, which drew my attention to a speech by Lord Carnwath.  Carnwath makes it clear that the courts have left the Wednesbury principle behind.

In 19 years as a judge of administrative law cases I cannot remember ever deciding a case by simply asking myself whether an administrative decision was “beyond the range of reasonable responses” … My approach I suspect has been much closer to the characteristically pragmatic approach suggested by Lord Donaldson …”the ultimate question would, as always, be whether something had gone wrong of a nature and degree which required the intervention of the court and, if so, what form that intervention should take”.  If the answer appears to be yes, then one looks for a legal hook to hang it on. And if there is none suitable, one may need to adapt one.

The position taken in tribunals so far seems to be simple enough: where there are bad decisions, they will change them.  The primary test, Lord Carnwath says, is whether or not a decision is unfair.  In the case of the bedroom tax, too many decisions are.

Are there targets for the number of sanctions?

I’ve done a couple of turns this week for the BBC.  The first, on Tuesday, was for Radio Scotland’s Call Kaye, on universal benefits for pensioners.  The second, late last night, was on Newsnight Scotland, covering JSA sanctions.  Gordon Brewer, the presenter was apologetic to the viewers: they couldn’t get the DWP, Conservatives or Liberal Democrats to put anybody up, and all they could offer instead was me.

I was asked specifically to say whether or not Jobcentre Plus was working to targets.  This isn’t a subject I’ve covered before in the blog, and I thought I ought to explain the answer I gave.  Following accusations about targets in the Guardian, the DWP, which denies that it has such targets,  held an internal inquiry.  The report by Neil Couling, published last May, is here.  It claims repeatedly that there is ‘no evidence’ that there are such targets.  But it also goes through a dossier of thirteen papers which seem to show the opposite.  In each case, the argument runs, people who had written about targets were doing something that was inconsistent with current policy.

Example three is a photograph taken of a poster in a Derbyshire site which states numerically a minimum level of referrals which the office should be looking to make. This was also detailed by the Guardian. Upon investigation, this chart was intended by local management to ensure consistency both across their Adviser teams and with other sites with similar labour markets. The poster was removed in January 2013. There is no evidence of any formal target setting here but there was clearly an expectation set based on numerical averages which is against policy.

Example seven consists of excerpts from three e-mails … These e-mails do refer to benchmarks being applied but are also specific in that referrals should only be made where appropriate. …  The content of the e-mails, in part, does not reflect the current policy and is therefore unacceptable …

Example 10 is an excerpt from an e-mail sent by a cluster manager in which flight-paths and targets are mentioned. This was also detailed by the Guardian. The detail and tone of the e-mail clearly contravenes our policy. This has been raised with the District Manager who agrees that the wording of the e-mail was inappropriate and has taken action with the individual to remedy this.

Couling suggests that where an agency has been conditioned over several years into thinking of guidance as a target, it can be difficult to stop. It might equally be argued, of course, that this particular vice is liable to encouraged if central agencies present their guidance to administrators in terms of numbers and league tables.

The PAC condemns the implementation of Universal Credit

This morning the Public Accounts Committee has published a withering report on the management of Universal Credit.  They comment on the ‘extraordinarily poor’ management, the defensive mentality, lack of financial controls and the weakness of the pilots, which are not designed to deliver the information or methods that the project will need.  None of that should come as a surprise, because the problems have been widely reported for over a year.  The PAC report notes (para 6) that the DWP first became aware of problems with the programme in July 2012.  That cannot be true.  The Telegraph reported  on 25th September 2011 that the Treasury had been warned of the coming problems, and that a team had been set up to deal with them; the DWP issued a statement that the rumours were “completely untrue and utterly without foundation”,  but you cannot deny something without being aware that people are saying it.  The first delays in the timetable for the pilots were announced in June 2012, which suggests that the DWP had already been grappling with the problems of implementation before that.

Universal Credit is still described as having cross-party support, which is disappointing: one wonders how many problems have to emerge before people realise that a scheme is not going to work.   It’s tempting for politicians to say that the idea is good in principle but that it’s been implemented badly.  That’s not the problem here; the scheme has been impractical from the outset (I said so on this blog in October 2010).  The problems, the administrative turmoil and the bluster have burgeoned as a succession of different teams have realised the impossibility of the task they have been set.

Councils doing business

My eye was caught earlier this week by the news that Travelodge, which runs budget hotels, has been approaching local authorities to get them to build hotels for Travelodge to run.  The arrangement will enable to councils to get a returrn on land, as well as a degree of city centre investment.  It needs, however, loans (or at least, loan sanction) from the Treasury.  There have been some initial developments on this basis.

I’ve long been of the view that government, and local authorities, should be able to do whatever is appropriate to advance the welfare of their citizens; that’s what they’re  there for.  I’ve suggested, too, that governments should be able to engage in enterprise and make profits for its citizens.  The intriguing thing about the Travelodge proposal is that the initiative has come from the private sector – which seems to make it politically acceptable – whereas initatives from within the public sector are knocked back.  Active government is one of the principal means of generating economic activity, employment and growth, and any policy for regeneration depends on it.

IDS and the anatomy of incompetence

Iain Duncan Smith’s reaction to the NAO’s criticism of Universal Credit has been to blame someone else.  Perhaps it’s the fault of the IT people.  He told the BBC (also reported in The Telegraph):  “The problem was that those charged with actually putting together the detail of the IT – I’m not a technologist and nor are you, we rely on people telling us that that is actually correct – did not make the correct decisions but we intervened to change that. ”  That’s odd, because on the Today programme he explained he had actively intervened as early as 2011, and a year ago he explained that he was personally supervising choices and decisions about IT:   

“For what it is worth, I take absolute, direct and close interest in every single part of the IT development.  I hold meetings every week and a full meeting every two weeks, and every weekend a full summary of the IT developments and everything to do with policy work is in my box and I am reading it. I take full responsibility and I believe we are taking the right approach.” 

Nearly a year ago, too, an inside source was cited by the Independent saying this:  “IDS, like other ministers before him, has been hypnotised by promises of what an online system can deliver. Warnings were given to him more than a year ago. They were ignored.”

Maybe it’s the fault of the civil servants, who from IDS’s BBC interview do not seem to have taken on board his repeated explanations.  The Telegraph, leaping to IDS’s defence, comments that “The Universal Credit debacle is the fault of the Civil Service, not Iain Duncan Smith.” IDS has said he has ‘lost faith’ in his civil servants, who were “just wanting to be able to say it was going well.”  That problem was also being reported a year ago. 

The basic problem, however, is the problem of the Universal Credit scheme itself: a badly misjudged project that is flawed in concept, aims, design and implementation. The prime responsibility for that, of course, rests with IDS, its leading proponent, who is also charged with delivering it. There is a wonderful article on incompetence by Kruger and Dunning (J Kruger, D Dunning, 1999, “Unskilled and unaware of it: how difficulties in recognizing one’s own incompetence lead to inflated self-assessments”, Journal of Personality and Social Psychology, vol 77 no 6 pp 1121-1134). They explain why people who are incompetent generally don’t realise it; the same skills and knowledge which would lead them to be self-critical are precisely the skills and knowledge they don’t have.

“We propose that those with limited knowledge in a domain suffer a dual burden: Not only do they reach mistaken conclusions and make regrettable errors, but their incompetence robs them of the ability to realize it.”

If Iain Duncan Smith had had the resources and knowledge to understand what was wrong with his policy and approach, he probably wouldn’t have done it. If there is a criticism to make of his civil servants, it’s that no-one seems to have been prepared to tell him, as Sir Humphrey once said to Jim Hacker: “If you are going to do this damn silly thing, don’t do it in this damn silly way.”