Secrecy, leaking and the law

I am in favour of more openness in government, and against leaking by civil servants.

Almost everyone recognises the need for secrecy in some discrete areas of government, such as security and defence, and for information about individuals to be protected. But there is debate about whether information about other areas of government policy should be protected.

There are some – including my father, Brian Barder – who argue that governments are entitled to retain some information privately to permit effective decision-making.  On this view, Ministers are entitled to advice and analysis before a choice is made, and if that advice is likely to be published then it is less likely to be sought, or it will be provided in phone calls, text messages or in un-minuted meetings to avoid the need for disclosure. This will result in less comprehensive and frank advice, and less well-informed decisions.  That is a serious concern.

The alternative view is that if officials know that advice will be published, they will do a better job in providing evidence-based, impartial and comprehensive advice; and Ministers will do a better job of making decisions consistent with what the evidence and analysis is telling them.  Transparency makes it harder for Governments to do irrational things.  It reduces the power of insider lobby groups and creates political pressure for better government.   It makes it more likely that governments will take a longer-term view rather than seek short-term political advantage.  Furthermore, controlled release of information is sometimes used by government to “spin” the message and to create an unhealthy dependency between the media and government spin doctors.

A lot of government information is classified to avoid embarassment rather than to avoid harm to the interests of the nation.  (The use of the classification “sensitive but unclassified” is a case in point.)

But although I am in favour of greater transparency in government, I am not in favour of leaking of government information by civil servants.

The media and MPs seem to have sided with Damian Green MP on the basis that democracy requires a flow of information from government to, err, the media and MPs, and that this information would not be available within the current law.

Parliament should debate and decide the amount of transparency it wants of the executive part of government, and ministers and officials should then comply with that law.  Parliament has done this by way of the Official Secrets Act (1989).   Having passed the law, there is no excuse for those same Parliamentarians to collaborate with civil servants who break the law by receiving or using that information, still less by encouraging them.   If MPs believe that the good functioning of democracy depends on more information being made available than is currently required and allowed by law, then they should change the law, not break it.

For the police to enforce the law, as passed by Parliament, is not an intrusion of police power into democracy.  Enforcing the law is the job of the police; and if Parliament doesn’t like the law then they are in a peculiarly strong position to do something about it.

8 comments on “Secrecy, leaking and the law”

  1. Here was me thinking that the amount of transparency wanted from the executive was defined at one end by the Official Secrets Act (1989), but at the other by the Freedom of Information Act (2000).

    So when the executive doesn’t abide by its obligations under the latter, how is one to find out and force compliance, other than by breach of the former? (without any drawing any inference on whether this has happened in the current case)

    And doesn’t the Public Interest Disclosure Act (1998) have a degree of applicability in the tension between the two acts? (again, not drawing links to the current case which I suspect would not have involved a ‘qualifying disclosure’)

  2. Martin

    Thanks. I don’t think we disagree much. There are laws defining the degree of openness that parliament expects of the executive; civil servants should obey those laws; and the police should enforce them. If the laws do not result in the amount of openness that parliament wants, parliament should change the law.

    If a civil servant believes that the amount of secrecy being enforced by government is inconsistent with the law (and there is no suggestion so far that this is what happened in the current case) then there is an established procedure for challenging it.

    Since writing the blog post I’ve heard several MPs saying on the radio that it is essential for democracy that MPs are free to receive information from civil servants. If that is their view, they should legislate accordingly.

  3. I am in favour of more openness in government, and against leaking by civil servants.

    It strikes me that the first is actually a good safeguard against the second.

  4. With respect, Paulie, I think you have reframed my views beyond recognition (at least, beyond my recognition)!

    I plead guilty to believing that public discussion of ideas and evidence will lead over time to better choices; but this seems to me to be a view that has been uncontroversial in Europe since the Enlightenment.

    Where I part company with your caricature of what I believe is your description of a “judicial” model of decision making. I believe in political accountability. That is why, for example, I believe that parliament, not civil servants, should decide the balance between secrecy and openness that they want from their government.

    Politicians are subject to a variety of different political pressures, and that is desirable in a plural democracy. But the nature and relative strength of those political pressures are not fixed: they are determined endogenously by the institutions and conventions of our society. We can make choices that affect whether and how those political forces operate. On the whole, I want to encourage the evolution of political institutions which add to political pressure to do things that are good for the long run interests of many people in the country, and to make it less likely that political office-holders will do things that are in the interests only of a small, powerful minority.

    That is definitely not calling for “judicial” style decision-making. I am enthusiastically in favour of politicians making political decisions, and I’m rather sceptical of the current fad for putting many decisions at “arm’s length” (eg monetary policy, fiscal policy, etc). But there is nothing at all wrong with trying to create institutions that make it more likely that these political decisions will be for the greater good.

  5. Owen,

    I’m not arguing with you that Parliament should decide where this line is drawn. But – that said, you do also seem to offering a suggestion of *where* they could draw the line, and you seem to be specifically arguing for a particular decision-making model that deals with the problem that officials are under little pressure to offer high-quality advice (a concern that I share as well).

    I would deal with this by binding the fortunes of senior-officialdom to the politicians that they work with. An in-and-outer system would do this.

    You are also concerned that the current model promotes political short-termism (again, I’m with you on that one). I think that officials that have a long-standing relationship with politicians would, again, have something to lose from short-termism (at the moment, they can simply shrug and walk away when things go wrong).

    I broadly disagree with your suggestions because I’d offer a different answer. I would also argue that your suggestions have a trajectory – and that when you launch something along a particular trajectory, you have to answer for the possibility that it may travel all the way along it.

    For instance, you argue that all advice should be published and should be impartial and comprehensive. Why shouldn’t it be commissioned impartially as well?

    You argue for transparency to reduce the power of lobby groups. Why not make all meetings with lobby groups matters of record?

    You seem to be arguing that it should be released in a timely way rather than at the time of a minister’s choosing which fits the model I’ve outlined, and – finally, you don’t seem to mind if – once it’s gone this far – that they can deliberate in private.

    I’m not sure that any of this is very far from the ‘judicial’ model that I’ve outlined?

    You say that you’re against arms-length decision-making, but you also seem to be putting most of the process out of the reach of people who have – after all – been elected to do a job?

    Sorry if this comes across as a bit of an unprovoked assault, but I think that yours is not an uncommon view, and I’d like to see it challenged by the view that – fundamentally – a representative democracy where election-winners have the resources to largely run things the way they see fit, subject only to more general constitutional safeguards.

  6. With apologies for a cowardly decision to steer clear of the great Owen-Paulie debate, I was about to offer some thoughts about the possible negative consequences of different kinds of leak, but (like Paulie) found that they were too long for a comment here. So I have put them as a new post on my own blog here.

    Brian
    http://www.barder.com/ephems/

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Owen Barder

Owen is Senior Fellow and Director for Europe at the Center for Global Development and a Visiting Professor in Practice at the London School of Economics. Owen was a civil servant for a quarter of a century, working in Number 10, the Treasury and the Department for International Development. Owen hosts the Development Drums podcast, and is the author Running for Fitness, the book and website. Owen is on Twitter and