Transparency, what transparency?

Justin SchlosbergThis post was written by Justin Schlosberg, Lecturer in journalism and media, in Birkbeck’s Department of Film, Media and Cultural Studies.

In 2011, as the phone-hacking scandal unfolded, Prime Minister David Cameron pledged a new era of transparency in the government’s dealings with the media. All meetings between senior government and media figures were to be recorded and published on a quarterly basis and a major public inquiry was launched – partly with a focus on the relationship between press and politicians.

The Leveson hearings that followed cast an unprecedented spotlight on the intimacy of these relations complete with gossip, threats, family get-togethers and texts signed off with ‘lots of love’ and kisses. It had very little to do with the day-to-day interactions between politicians and journalists – both on and off the record – which are an intrinsic part of the political newsgathering process. It revealed instead something over and above those interactions – an exclusive club at the heart of the establishment that seemed to undermine the very fabric of British democracy, and underline the growing public mistrust of both politicians and the media.

Within this dynamic, Leveson was pre-occupied with the flow of influence from media owners to politicians. The founding premise of his inquiry was that press power was out of control, undermining the integrity of government, parliament and the police, whilst severely infringing on the privacy rights of individual citizens. Leveson’s detractors, on the other hand, perceived the gravest threat to democracy as operating in the other direction. It was creeping state control of the press – supposedly heralded by his reform proposals – which threatened to fatally undermine the independence of the fourth estate. In the intense debate that followed, a fundamental truth was obscured: media and political elites are not rivals but partners in a relationship that works ultimately to promote the shared interests of power. This was vividly demonstrated when Rebecca Brooks – former editor of the News of the World – told Leveson that the Prime Minister had sent her a consoling text during the height of the scandal, apologising for not being able to be more ‘loyal’ to her in public.

And as the spotlight began to fade, business as usual resumed – behind closed doors – and the hollow rhetoric of transparency was laid bare. For a start, it soon became clear from published data that the government had no intention of divulging any meaningful details about its meetings with media bosses. Whilst the nature and purpose of other external meetings are often specified, when it comes to newspaper editors or execs, we rarely get anything beyond ‘general discussion’.

Of course, this spectacle of transparency is nothing new. After taking office in 2010, Cameron renewed the commitment to openness that is typical of incoming governments, promising to pour light into the darkest corners of policymaking. In a nutshell: ministers would be ‘transparent about what [they] do and how [they] do it’ and ‘above improper influence’.

Less than one year later, then culture secretary Jeremy Hunt was at pains to reiterate this commitment in respect of News Corp’s aborted take-over of BSkyB. He stressed the unprecedented openness of the bid process both before and after he waived it through (only to then be withdrawn by News Corp amidst the fall-out from the phone hacking scandal). But the folly of Hunt’s assurances was exposed after he told Parliament in 2012 that he had no unofficial contact with News Corp lobbyist Fred Michel during the bid process. A series of texts disclosed shortly afterward suggested otherwise, with cringe-inducing awkwardness.

Perhaps not surprisingly in the wake of phone hacking, the Prime Minister appears to be steadily curtailing his personal contact with senior media figures, based on data released by the government for 2011-13. Interestingly though, Cabinet Secretary Sir Jeremy Heywood is more than picking up the slack, with ten recorded meetings with the media in 2012 and fourteen in 2013. In contrast, Jeremy Heywood’s predecessor Gus O’Donnell had just two meetings with the media in 2011, one of which was a ‘reception’ hosted by the Financial Times.  This raises the possibility that some of the business of media management by the government (or vice versa) is increasingly being conducted through the civil service, perhaps in an effort to remain under the radar. In any case, given that Leveson’s focus was elsewhere, the spike in contact between the Cabinet Secretary and the media warrants scrutiny.

The first thing to note is that like his ministerial colleagues, the Cabinet Secretary’s contact with the media is overwhelmingly concentrated in the national press: of the twenty four meetings in 2012-13, just three were with broadcasters (BBC and ITN). This could be because of a received wisdom in government that the national press remain leaders of the wider news agenda. Or it could be because newspaper editors and proprietors are more active than broadcasters in lobbying the government for influence and/or ‘scoops’. Or it could also be because the government is conscious of the broadcasters’ regulated impartiality, whereas newspapers may be seen as more malleable targets in agenda building strategies.

In any case, the imbalance illustrates how much newspapers still matter to Whitehall, for all the talk of their demise. But it is not just newspaper bosses in general who occupy a disproportionate amount of the Cabinet Secretary’s time. Again, in line with ministerial colleagues, a significant majority of the meetings were with representatives of the right wing press. Of the ten meetings Jeremy Heywood had with the media in 2012, seven were with the Times, Telegraph, Mail and Spectator, all openly aligned with the Conservative party; two were with non-partisan outlets (the Economist and ITN) and one with the left-leaning Guardian newspaper.

This may simply reflect the market dominance of the right-wing press in Britain. It is perhaps understandable that if the Cabinet Secretary is going to meet regularly with the press, he would want to prioritise those titles that have the biggest audience reach, regardless of their political colours. But it doesn’t explain why most of his meetings are with the elite press – broadsheets and periodicals – with very limited exposure compared to the mid-market and tabloid titles. Again, there are a number of plausible explanations here. It could be that mid-market and tabloid editors and executives aren’t very interested in talking to government bureaucrats. It could be because the ‘serious’ news sector is particularly valued in Whitehall for its opinion-leading reputation and its elite audience capture. Or it could just be because these titles have the capacity to cover political issues with greater depth and complexity than their lower brow competitors.

Whatever the reason, the opacity of these meetings appeared to take something of a sinister turn in 2013. After the Guardian began publishing details of mass surveillance by the security services in June 2012, revealed by NSA whistleblower Ed Snowden, the Cabinet Secretary unusually held two meetings in short succession at the Guardian’s offices. A Freedom of Information request for details of these and other meetings with the senior newspaper figures has recently been refused and is currently under review by the Information Commissioner. According to Guardian editor Alan Rusbridger in an interview with the author, he was explicitly threatened with legal injunctions during his meetings with the Cabinet Secretary, unless he agreed to destroy hard drives of the leaked material. The only account we have from the government is the notes recorded in the meeting data. The first meeting was described simply as a ‘discussion about handling information’ whilst the follow-up apparently moved on to ‘discussion about international issues’.

In the end, the newspaper acceded to the government’s demands, confident that destruction of the hard drives would not curtail reporting. Copies of the material lodged with US publishing partners would apparently ensure the story’s endurance. Glen Greenwald, former lead journalist on the story for the Guardian and now with the Intercept, recently claimed that the biggest story relating to the leaks is yet to be published. But he made no mention of what or when, and we are left wondering whether the government’s actions had really been as futile as Rusbridger suggested.

Rusbridger himself opted initially not to make public the threatening nature of his meetings with the Cabinet Secretary, or indeed the unprecedented event that followed, with security service personnel entering the Guardian’s offices to oversee destruction of the offending hard drives. A month later the Guardian despatched David Miranda, Greenwald’s partner, to meet Laura Poitras (another Snowden confidante and co-architect of the story) in Germany, perhaps in an effort to get around the loss of direct access to the material.  According to Rusbridger, the rise in international travel was due to the necessity of face to face meetings as ‘we assumed everything was being at that point intercepted’.  But on his return to Brazil, Miranda was arrested and detained at Heathrow Airport under anti-terror laws, prompting Rusbridger to publicise the extraordinary lengths the government was going to in order to restrain the coverage.

But what about the other meetings that took place around the same time between the Cabinet Secretary and the national press? Apparently, the purpose, nature and outcome of these meetings are also exempt from disclosure under the Freedom of Information Act, partly in order to protect policymaking. But the use of this exemption (under Section 35 of the Act) raises more questions than it answers, perhaps the most obvious of which is what policy exactly do these meetings concern? In apparently typical fashion, the Cabinet Office made no attempt to explain why exemptions under Section 35 were engaged, or provide any detail as to the public interest test that is required under law.

It is fundamental to a functioning democracy that the media are seen to be free from undue influence or interference by the state and, conversely, that government and policymaking is free from undue influence or interference by the media. Over the last two years, these twin and sometimes conflicting concerns have become matters of acute public interest, fuelled by Leveson and Snowden alike. But the government’s refusal to disclose information about these meetings speaks to a wider problem. It exposes the gap between transparency rhetoric and substance which ensures that the real workings of power remain off limits to public scrutiny. It is a gap now so wide that official talk of transparency in media policymaking is tantamount to double-speak.

You can find links to the correspondence between the author and FOI authorities in the following places:

http://www.lse.ac.uk//media@lse/documents/MPP/First-Reply-to-FOI-request-on-Cabinet-meetings-with-media.pdf

http://www.lse.ac.uk//media@lse/alumni/documents/Appeal-on-FOI-319677—request-for-internal-review.pdf

http://www.lse.ac.uk//media@lse/documents/MPP/Response-to-appeal-on-FOI319677-for-Cabinet-meetings-with-Media.pdf

More blog posts by Justin Schlosberg:

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Used or abused? 10 serious issues raised by FoI requests

Dr Ben WorthyThis article was contributed by Dr Ben Worthy. It was originally published on The Conversation.

A Freedom of Information request lodged on a quiet news day by a journalist has revealed that more than 800 police officers in England and Wales have been investigated for breaching social media guidelines over the past five years.

Quite apart from showing us that the police, like many other public bodies, find it difficult to control what its members do on Twitter, the story raises the importance of the Freedom of Information Act, which comes under regular fire for, according to the prime minister, David Cameron: “furring up the arteries” of government.

The Local Government Association recently published a list of ten “silly” FoI requests. While not arguing that all such requests are like this, the implied point is that FoI is being “abused”.

This complaint mirrors the comments of Tony Blair in his memoirs:

The truth is that the FoI Act isn’t used, for the most part, by ‘the people’. It’s used by journalists. For political leaders, it’s like saying to someone who is hitting you over the head with a stick: ‘Hey, try this instead’ and handing them a mallet. The information is neither sought because the journalist is curious to know, nor given to bestow knowledge on ‘the people’. It’s used as a weapon.

It also fits with concerns from a stream of other ministers and officials that FoI stops records being created and hampers decision-making. It is likely to feed into the recent government announcement of a consultation on whether the act is, indeed, being abused.

Little is known about FoI requesters. The pattern appears to be broadly that a variety of people and groups use it for a whole variety of reasons. Most FoI requests go to local government, the largest user group (contrary to Blair’s claim) are the public and, high-profile cases aside, many use FoI for “micro-political” issues, such as dealing with a pothole or planning application.

As a response to the list, I’d like to offer my own list of ten serious issues revealed by FOI requests.

  1. Extraordinary rendition – the UK’s involvement was revealed by FoI requests from the All-Party Group.
  2. Details of the Universal Credit welfare reforms.
  3. The Libor banking scandal and knowledge of it.
  4. Lists of visitors to the prime ministerial residence at Chequers (and ministerial meetings and diaries now proactively released).
  5. The use (and, it turned out, abuse) of passes to parliament.
  6. Creation of the famous “Weapons of Mass Destruction” dossier.
  7. The monarch’s involvement in vetoing legislation.
  8. The results of local restaurant hygiene inspections that helped create http://www.scoresonthedoors.org.uk/.
  9. The salaries of senior academics and NHS officials.
  10. The planned closure of local libraries up and down the country.

Keeping them honest

Underneath these high-profile cases, our research found a steady stream of accountability stories over planning, car parking and many other issues – just see David Higgerson’s FOI Friday.

The act also helped create IPSA, which regulate MPs’ expenses, led to a change in the law so all members of the House of Lords pay tax in the UK and drove the regular publishing of local government salaries.

This not to say there aren’t “silly” requests, from dragons to zombie attacks (though “silly” is subjective as Jonathan Baines explains, many corruption scandals have been triggered by apparently pointless questions or the piecing together of small bits of information).

Nor is it to claim the act is not taken advantage of – in the UK, and even more in the US, FoI has led to heavy use by business – see this particularly controversial case in Scotland with Phillip Morris seeking access to details of a study of underage smoking.

Yet such requests represent only a minority of the estimated 253,000 requests per year (my own estimates based on the most recent figures for numbers of local government requests in 2010 (192,000) plus the number of requests to central government in 2013 (53,000). On the whole, research indicates that FoI is composed of all sorts of questions, on all sorts of topics, sent in by all sorts of people and groups.

It is this unpredictability that helps make it effective. One local politician told me: “you never know what you will get asked”. The presence of FoI, the possibility of a question, can make someone think twice and even deter them from corrupt or inappropriate behaviour.

There is also an issue of democratic principle. The right to information, championed by radicals such as the Levellers and Diggers centuries ago, means the right to ask questions (to misquote Orwell on liberty) that the powerful may not want you to ask.

It is a democratic right to ask and this may mean some silliness – just as voting may mean non-voting or “silly” voting. Like all parts of a democracy, it is messy and unpredictable and can occasionally go wrong. But in its messiness and unpredictability lies its power.

The Conversation

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Lobbying: why is it so difficult to reform?

This post was contributed by Dr Ben Worthy, a lecturer in Birkbeck’s Department of Politics.

Last week David Cameron admitted that Westminster has a ‘problem’ with lobbyists. Governments have long struggled with lobbying. The Coalition has had its own share of scandal around ‘inappropriate’ influence, from former military chiefs to access to the prime minister.

However, finding a solution is tricky. Like many political issues, the solution depends very much on what you believe the actual problem to be.

Now, MP Patrick Mercer and three peers face allegations of misconduct after a lobbying ‘sting’ by journalists. As of Sunday 9 June, the controversy is spreading to Select Committee chairman Tim Yeo , and questions are being asked about Conservative election strategist Lynton Crosby. This is not only a Conservative problem – two of the peers suspended from their party are Labour.

Like ‘expenses’, the word ‘lobbying’ is now synonymous with corruption. David Cameron made this link explicit

“…secret corporate lobbying, like the expenses scandal, goes to the heart of why people are so fed up with politics. It arouses people’s worst fears and suspicions about how our political system works, with money buying power, power fishing for money, and a cosy club at the top making decisions in their own interest.”

In 2012, a report by the Political and Constitutional Reform Select Committee pointed out that lobbying is not all bad. Indeed ‘it is a fundamental part of a vibrant democracy’ – lobbying  ended the slave trade and gave us all seat belts. It is also a vital information channel for politicians.

It is the ‘perception of undue influence’ that is corrosive. So, the solution is to regulate and open up the system: sunlight, as a famous man argued, is the best disinfectant. The Coalition government has dusted off suspended plans to introduce a register of lobbyists, requiring third parties lobbying on behalf of others to sign a public register.  But why, given the continued allegations, is it so difficult to do?

How you define lobbying shapes the solution. The government pointed out in 2011 that ‘the scope of the register will in large part be set by the final definition of lobbying’.

In his statement last week Cameron defined the ‘problem’ in a particular way: ‘I think we do have a problem in Parliament with the influence of third parties’ – meaning those lobbying on behalf of others. The Committee had previously said that

“…a statutory register which includes only third party lobbyists would do little to improve transparency…as these meetings constitute only a small part of the lobbying industry. The Government’s proposals only scratch the surface.”

The groups consulted last year also felt a ‘third party’ definition was too narrow. Many ‘could not identify the problem that the register was aiming to solve’.

To further complicate things, any definition is also highly political. Does lobbying include church groups? Charities? And does it include, crucially for Labour, Trade Unions, as Cameron thinks it should?

The Committee overall took a dim view of a third party register:

“We recommend that the Government scrap its proposals for a statutory register of third party lobbyists…the proposals…will do nothing to improve transparency and accountability about lobbying.”

So is there a better solution? For the Committee, a well-functioning regulation ‘would include all those who lobby professionally, in a paid role, and would require lobbyists to disclose the issues they are lobbying Government on’. This would help ‘improve transparency about lobbying, and reduce public concerns about undue influence’ (see more here).

The government should also do more to ensure basic information, such as records of meetings published online, are kept up to date. But even keeping track of when and where lobbying is taking place is difficult. Speaker Bercow has restricted access to passes to Parliament pending an investigation. The site ‘who’s lobbying’ seeks to map who is doing what and where. Yet while having a pass and formal meetings with a Minister can be connected to lobbying taking place, where do you draw the line? Does dinner with an old (ex-minister) friend, who happens to work for company X, count as lobbying?

The key question is whether transparency promotes good behaviour or pushes bad behaviour even further underground. Work by Cornelia Woll and David Coen show how lobbying adapts to new and different systems. For example, the US has some of the strongest transparency regulations around lobbying. Yet lobbying still exerts huge amounts of pressure on politicians – see here and here. The reason is obvious – a study calculated that in lobbying over one tax issue, companies gained $220 for every $1 spent on lobbying, a 22,000% return. With such returns and no agreement on how to define it, no solution or regulation will fully ‘solve’ the lobbying ‘problem’.

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YouTube justice UK style

This post was contributed by Professor Leslie Moran, of Birkbeck’s School of Law and Barbara Villez, Visiting Fellow at Birkbeck Institute for the Humanities, Professor Université Paris 8

The UK Supreme Court has launched a new communications initiative.  As of late January 2013 you can watch, on demand, videos of judges in the highest court in the land delivering summaries of their judgments. Who is the audience for these five minute programmes? Is it the hard pressed smart phone/iPad generation law student, lawyer or legal advisor? No; far from it.  The Court’s press release announcing the launch of the YouTube initiative suggests the target audience is much wider. Lord Neuberger, President of the Supreme Court, is quoted expressing his hope that the videos will broaden the audience for the Court’s work. Are they the next hot internet viral sensation educating the public about the work of the highest court in the land? The short answer is ‘no way’. Are these videos a ‘must watch’ offering valuable insights into the decisions of the court? We have our doubts about that too. But they do make fascinating viewing.

The visual challenge of judicial activity

Judicial activity has been described as ‘visually challenging’. These videos do much to confirm this and do little to meet that challenge. Five minutes watching someone with their head down reading out loud from a set of papers is not great telly by any stretch of the imagination. The way the images are put together adds to this static quality, with each video being made up of two basic types of shot. Throughout, the camera’s presence is unacknowledged by the speaking figure.

There is little in the way of props or costume to attract the eye. Judges in the UK Supreme Court don’t wear special robes in court. These judges look very much like ordinary business men. There is only one female judge, Lady Hale. In contrast to this there is much to distract the ear. The microphones, built into the judicial bench, not only pick up the voice of the judge but also the endless rustle of their papers.  Coughing and other background noises regularly punctuate the proceedings. All tend to obscure the words spoken by the judge.

Adaptation from written texts

What are you going to get out of watching the highest judges in the land reading out loud? The judges, so they tell us in the videos, are ‘giving the judgement of the Court’.  But law students and other diligent viewers beware; ‘giving the judgement of the Court’ is not the actual opinion of the court. What you actually get is an image of a judge delivering a speech adapted from a press summary published on the Court’s website to accompany the judgement itself. Written initially by the judicial assistants, the judges approve these summaries and then adapt them for the ‘live’ presentation in Court. The judgment is a written text. And it is written to be read, not spoken. It is available on the Court’s website, as is the accompanying press summary.

As the videos show, the adaptation of the press summaries into scripts for a courtroom performance is problematic. Despite the rearrangements, these scripts are not easy to speak. Judges stumble over the dense text and struggle to incorporate quotations from the trial judge into oral delivery.

The videos do, however, have much to offer. You not only hear the voice of the judge but also the accent which is a marker of their social class. The folding and refolding hands of a courtroom assistant on screen behind the talking head of the judge add an unexpected physical ‘commentary’.

Television trivia?

But are many of these points indicative of the dangers of putting courts and judges on TV? Are we in danger of getting caught up in what some describe as the trivia of the moving image? Our first response is that image making and image management are central to judicial authority. As the 2008 Judicial Studies Board, Framework of Judicial Abilities and Qualities reiterates time and time again, all the core judicial abilities and skills have to be ‘demonstrated’ and communication is central to this demonstration of authority. The courtroom is one long established context in which these abilities and skills have been performed and communicated. Props, wardrobe, voice and the body all have a role to play in demonstrating and communicating judicial abilities and qualities. Video is a new communication format, context and set of challenges. It has characteristics similar to and different from both face to face courtroom encounters and the more formal and enduring qualities of the text of a written judgment.

The current YouTube videos are a return to primitive television. They are simply the result of the presence of the camera in the court. The camera appears to be no more than a tool that records an event. However as the simple editing shows, the record is subject to a degree of manipulation. The resulting image is not just mediated by the technology but has been subject to judicial control. If essential information about the judgement, the press summary and the full judgement are already available what extra is provided by these judicially approved moving images? It may well be just that there is a camera in court and that camera is a symbol of openness, transparency and a form of accountability.

But is that going to satisfy a public that lives in a culture saturated with sophisticated video imagery.  One problem with them may well be that the public is too sophisticated for primitive television. Viewers have expectations acquired from countless hours of watching complex moving images, generating high levels of visual literacy. The primitive visual aesthetics of the UK Supreme court’s YouTube videos are likely to be a real turn off. If the judges of the UK Supreme Court are going to use video available via the Internet as a means of communicating, then they may have to think harder about the moving image that it is being made and adopt a different approach to the use of the moving image as a means of communication.

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