Surveillance in a democratic society

Despite the initial belief by some that it was an elaborate April Fool’s joke, it has become clear that government proposals to monitor email and social networking are very real:

Ministers are to introduce a new law allowing police and security services to extend their monitoring of the public’s email and social media communications, the Home Office has confirmed.

It is expected that the new system will allow security officials to scrutinise who is talking to whom and exactly when the conversations are taking place, but not the content of messages.

Yet another attempt to strengthen the surveillance state within the UK and weaken hard won civil liberties.  And it is not clear that this legislation is even required to deal with the problem which it claims to resolve. As David Davis MP has pointed out, current legislation is sufficient to deal with any existing need to monitor an individual perceived as a ‘threat’.

And it is not just the fact that the legislation is unnecessary that calls into question government proposals.  As pointed out in the Telegraph today, the plans are ‘practically impossible’. Trefor Davies, Chief Technology Officer at business internet service provider Timico, points out the obvious:

“The problem is that it is too easy to avoid detection on the internet. Proxy services provide anonymity for web users – Google “free proxy server” and you will find 33million results,” said Davies. “A culture of anonymity online means such people could not be targeted for copyright-infringing activities under the Digital Economy Act (eg music downloading) and we would be making it easier for people to go undetected when doing indisputably bad things such as accessing illegal child abuse material. More prosaically, proxy servers are also often the source of malware.”

So illiberal (and where are the Liberal Democrats on this issue?) and ‘practically impossible’.  One wonders why exactly the government are pursuing this policy, particularly when Tory minister in the (very recent) past have been so keen to publicly demonstrate their party’s opposition to state surveillance.

But there is a further issue here.  This government have repeatedly claimed that this is (or will be) the most transparent government in British history.  Transparency is supposedly at the heart of government policy.  Despite this, we have seen increasing attacks on the Freedom of Information Act.  Furthermore, we have witnessed government ministers,such as Michael Gove, challenging a ruling by the ICO that private emails allegedly related to departmental business must be disclosed.

And herein lies the problem.  There are increasing efforts by the state to prevent the electorate from gaining access to information about the workings of government whilst simultaneously attempting to obtain more information from us.  Increasingly it appears that politicians are no longer answerable to us, we are answerable to them.  This claim for more information from us whilst simultaneously wishing to restrict access to information from them is the clearest signal yet of how the power relationship has shifted in recent years.  We should be demanding greater surveillance of the state rather than accepting greater surveillance of us.  Because, in a democratic society, it should be us holding them to account rather than the other way round.

What future for the Freedom of Information Act?

Last week it was revealed that the government had vetoed the release of the NHS risk register, despite repeated failed appeals against the Information Commissioner’s ruling that it should be published.  This decision has prompted a particularly stark warning about the future of the Freedom of Information Act by the Information Commissioner himself.  As The Independent reports:

Information Commissioner Christopher Graham launched a scathing criticism of the decision to exercise the Government’s veto in a report on the case to Parliament.

Health Secretary Andrew Lansley deployed it to block an Information Tribunal ruling that he should meet Labour demands to disclose the document.

Mr Graham dismissed his claims that there were exceptional circumstances and that it involved a matter of principle.

“The arguments are deployed in support of what is, in fact, the direct opposite of the exceptional – a generally less qualified, and therefore more predictable, ‘safe space’,” he wrote.

“As such, the Government’s approach in this matter appears to have most to do with how the law might be changed to apply differently in future.”

Indeed, there are very real concerns about the future of the Act, given the government’s obvious disdain for truly transparent governance, rather than the selective transparency that appears to be the preferred policy.

In another interesting development, the Commons public accounts committee has stated that private companies doing business with central government should be subject to the Freedom of Information Act:

In its report on the Work Programme on Tuesday, the committee recommended that the Cabinet Office Efficiency Reform Group (ERG) should extend its work to ensure that taxpayers get better value from companies that depend on central government deals for most of their income.

“There is little transparency over the financial affairs of companies which derive their income solely from government,” says the report. “Where companies depend on public sector contracts for the bulk of their income they can expect their performance, profits and remuneration packages to be subject to proper scrutiny by parliament on behalf of the taxpayer.”

The inclusion of private companies providing services on behalf of the state is long overdue.  If they are providing services and in receipt of tax payers money, then of course they should be subject to Freedom of Information legislation (I would go further and argue all companies should be subject to FoI but this is probably unrealistic).  In fact, this amendment to the legislation is even more important given the existing policies of the current government.

Since taking office, it has been clear that the government wishes to radically reform as many public services as possible, partly to splinter effective opposition (see Naomi Klein’s Shock Doctrine for a detailed expose of the tactic of economic reform on the back of a “shock”).  By reforming so many at the same time, it results in opposition that focuses on individual reform policies rather than an effective, co-ordinated opposition.  Which is why we are seeing massive reforms on the NHS,the police and education (amongst others).  The problem with these reforms, is that they will push many areas outside the scope of the Freedom of Information Act.  Indeed, this was noted by Katherine Gundersen over at the UK Freedom of Information Blog last year:

The Campaign for Freedom of Information has written to the Health Secretary, Andrew Lansley, expressing concern that the public’s rights to information about the NHS are likely to be “increasingly constricted” by the reforms in the Health and Social Care Bill.

Under the reforms, NHS services will be provided either by NHS bodies or by independent providers under contract. The NHS bodies which commission services will themselves be subject to the FOI Act though the independent providers will not. However, the providers will be contractually required to provide information to the commissioning bodies to help them answer FOI requests.

Pushing these reforms through quickly and reducing the power of the Freedom of Information Act (rather than strengthening and widening its scope) will ensure that the electorate are not properly able to scrutinise the policies that are being enacted in their name.  To say this is under-democratic is an understatement.  The government is well aware that if their already controversial polices were truly transparent, they wouldn’t have a chance of passing the legislation.  It appears that the government is desperately trying to ensure that it can push these reforms whilst ensuring that democratic accountability is weakened.  Weakening FoI legislation will make it easier for politicians to get away with policies that are deeply unpopular.  It is clear, therefore, that weakening the Freedom of Information laws as the government appears to be intending, will result in a weakening of our democracy.  At this time of “austerity” when government is taking radical, unpopular action to reform public services, there should be efforts to ensure total transparency throughout.  We should expect nothing less.

The illusion of transparency

Since the coalition formed in the spring of last year, transparency has been placed at the heart of government policy.  Or at least, that is what the Cameron government have been keen to put across to the electorate.  It has become a central plank of government policy and the coalition has repeatedly given its commitment to be the most transparent government in the world.

A couple of months ago, Cameron’s chief advisor, Steve Hilton, spoke at the launch of YouGov Cambridge.  Underlining the government’s commitment to the transparency agenda, Hilton said he wanted to turn a Britain of “post code lotteries into a world of post code choices”.  A Britain where crime data was easily and readily available, where negligent doctors were exposed and taxpayers were able to view data about contracts that exceeded budgets.  Essentially, all public services would be made fully open and transparent so taxpayers could make ‘informed’ choices on a range of issues.  So far, so admirable.  But the extent of the transparency agenda leaves a lot to be desired.

Despite expressing the intention to make this government the most transparent (an admirable aim considering the UK government’s historic reputation as being one of the most secretive democracies), there are clearly aspects of government that are excluded from this transparency agenda.  Take the recent storm over the private emails exchanged between Michael Gove and his advisers.  It seems apparent that Gove and his advisers believed that by conducting discussions about sensitive policy issues, such as the school literacy programme, using private emails rather than the official government email address, they would not be subject to Freedom of Information requests and, therefore, provide an opportunity for more candid discussion.

Thankfully, and possibly much to the annoyance of politicians and civil servants, the information commissioner has declared that private emails are subject to freedom of information requests and must therefore be disclosed when a request is made.  This ruling could now be subject to an inquiry by the public administration committee, chaired by Bernard Jenkin MP.  Whilst Jenkin is, according to The Guardian at least, a supporter of the Freedom of Information Act, there are concerns amongst ministers and civil servants that it’s scope is being extended far beyond what they envisaged.  Sir Gus O’Donnell, previously the UK’s top civil servant, is on record as claiming that the Act itself was a ‘mistake’ and it had a ‘negative effect’ on government procedures.  Given Gove’s actions (surely he wouldn’t have used private emails if he thought they would be subject to the Act) it is clear that MPs will be concerned about the commissioner’s ruling.

All this suggests that whilst the government is keen to encourage an environment of transparency around outcomes, they are less concerned with transparent decision-making.  If the government is truly serious about open government, this disparity needs to be addressed.  It is not enough to simply have access to a range of information related to outcomes of government (either national or local) and yet not present the electorate with complete transparency in terms of policy.  For any fully functional democracy it is essential that the electorate have access to information about the workings of government.  Without such access it is difficult for the electorate to put trust in their representatives. As the recent corruption perceptions index has shown, the UK is still some way off the top ten.  The revelations about News International, particularly in relation to Andy Coulson, will also have done much to undermine trust in our elected representatives.  There has certainly been little in the way of transparency in terms of the Prime Minister’s relationship with News International, not to mention the extent of links between Coulson and News International when he was at the heart of government.

Transparency should be at the very heart of government operations, but it should infiltrate every aspect, not just those convenient for politicians and civil servants.  If we truly want to have a fully transparent, effective democracy, we need more information about the operations of ministers and government departments as well as greater accountability and more power in the hands of the electorate to act on the information disclosed.  Only then will we have a truly open and democratic government.  Unfortunately, it is unlikely that the coalition will truly fulfil those ambitions.