Government material on private email is official information

5 March 2012
Last year the British media uncovered an expanding practice of Ministers communicating by personal emails in the belief that the content was excluded from freedom of information obligations. The Education Secretary was challenged about sending government business through a non official “Mrs Blurt” email account. Apparently Ministry staff were told by the Minister’s adviser that he would not respond to inquiries from his official email address. The Minister was advised by his department that such use did not get around the statutory release requirements, but he referred to Cabinet Office guidance to the contrary. That guidance was never disclosed.

Last Friday the Information Commissioner ruled that government business is covered by the Freedom of Information Act whatever way it is transmitted. The logical conclusion is that, otherwise, all government communications would be channeled through hotmail or gmail accounts.

This will impact on the way the British Cabinet operates. Media reports are that Ministers and their advisers routinely use private emails accounts to keep exchanges unknown by their officials and beyond legal disclosure obligations. Ministerial advisers apparently feel the need to exclude officials from sensitive matters because of a suspicion that their sympathies will result in leaks to the Opposition.

An Opposition MP claims that she has not received a straight response from the Education Secretary to the following questions she put to him;

• Have you or your advisors ever used private email accounts to conceal information from civil servants or the public that relates to departmental business and is covered by the Freedom of Information Act?
• Have you ever directed civil servants not to answer FoI requests on specific issues?
• What steps are you taking to prevent the deletion of private emails that relate to government business and have been deemed by the Information Commissioner to be covered by the Act?

The Minister has 28 days to appeal to the Information Tribunal against the Information Commissioner’s decision and the direction to disclose the content of the Mrs Blurt emails. It will be interesting to see if there is much content left in Ministers’ unofficial email accounts by the time this matter gets to the Tribunal.

There was an echo of this matter in New Zealand in February. An Opposition State Services spokesman claims that there is widespread use of personal email accounts by Ministers.

“The fundamental concern is the basic breach of process. Ministers serve the New Zealand public. That means they must be open to scrutiny under the Official Information Act ….The only conclusion that can be drawn from that is …. Ministers are using private email addresses to hide information”.

When private emails of the Minster of Foreign Affairs were recently hacked and content published, it was evident that they contained official information. The Official Information Act provisions apply to any information held by a Minister in their official capacity.

www.huffingtonpost.co.uk/2012/03/02/michael-gove-ordered-to-disclose-private-emails_n_1315796.htm

www.publicservice.co.uk/feature_story.asp?id=18816

www.stuff.co.nz/national/politics/6471836/McCully-warned-about-email-security-Key

Phone hacking scandal still has long way to go

2 March 2012
 
The resignation yesterday of James Murdoch from his roles with New International’s British interests is giving a sense of vindication to an MP who is campaigning against the company. In a Commons debate on Tuesday he indicated that Parliament should be concerned about media oversight where “every single element of the regulatory regime failed”. A consequence is the biggest case of corporate corruption for more than 250 years. (He didn’t indicate the particular aspect of Georgian Britain troubled him more!)
 
His claim as a victim of phone hacking was settled in January for 30,000 pounds, but he said that the affair still had some way to go. It was becoming clear that very senior figures were involved in destroying evidence and were aware that the extent that police officers were suborned meant that Scotland Yard “effectively became a subsidiary of News International”.
 
He claimed it was now known that senior figures at News International failed to take their responsibilities seriously. Their involvement in the cover up included ordering the mass destruction of evidence. The Press Complaints Council, criticised for having “one of the most dismal records of public service”, compounded an apparently carefree involvement of the Police, the Courts and Parliament.

There still seems to be uncertainty whether a law abiding and decent media can act in the inquiring, persistent and effective manner needed in a healthy democracy. An irony is that unauthorised disclosure of information by public sector officials is a serious ethical breach, but there is an acceptance that in other sectors whistleblowing to the media is an appropriate mechanism for promoting strong communities.

 
 
 

Some changes proposed in Solicitor General role

1  March 2012

Recommendations from a review of the role of the Solicitor General published this week include a number of organisational changes but no major constitutitonal or substantive structural shifts.

The Deans and Cochrane recommendations are that Crown Law remains a Public Service department with the Solicitor General as a chief executive subject to State Services Commissioner oversight.  The Solicitor General should remain the trusted adviser to government and principal advocate in Crown litigation. Separating those functions is not considered desirable.

Organisational proposals include enacting provisions for a fixed term appointment with constitutitonal independence for some Solicitor General responsibilities, having a deputy chief executive to manage the Crown Law Office, and a deputy solicitor general designated as the director of public prosecutions with responsibility for tighter coordination of prosecutions.

The reviewers do not recommend any amalgamation of departmental legal services into a centralised government law firm.

The review underpins the importance of a whole of government approach.  It explores the work that should be undertaken by Crown Law, what can be done elsewhere, the governing processes, and whether Crown entities should come within the mandate. The report suggests revising the 1993 Cabinet Directions on the Conduct of Crown Legal Business, and includes a draft which makes clear that the application is only to ministers and departments.  The proposal would strengthen Crown Law authority by prohibiting agencies from departing from advice unless the agreement of the Solicitor-General or Attorney-General is first obtained.

The report concludes with a reference to the “No Surpises” obligation which the Cabinet Manual places on all agencies.  Regardless of where legal advice is being sourced, all agencies, including State Owned Enterprises, are subject to the requirement in Ch 3.50;  ” Employees in the state sector must act with a spirit of service to the community and meet high standards of integrity and conduct in everything they do. In particular, employees must be fair, impartial, responsible, and trustworthy.”  This includes ensuring that on a “no surprises” basis, Ministers receive honest, impartial, and comprehensive advice.

www.crownlaw.govt.nz/uploads/review_2012.pdf
www.cabinetmanual.cabinetoffice.govt.nz/3.50

Is there a sniff test for corruption?

 28 February 2012
Transparency International found that there were unexpected numbers of New Zealanders who believed corruption was well established in 2010 when gathering data for the initial New Zealand corruption barometer. It found “an amazing 37% of New Zealanders believe corruption is increasing”. Surprisingly for many of us, 4% said they had paid a bribe in New Zealand in the preceding 12 months. The “clean” Scandinavian countries with whom we are often rated scored much better. Denmark was seen as corruption free, 1% of people in Britain said they had paid a bribe, and even Australians reported much less bribery than New Zealanders.
Traditional perceptions of Britain have taken a substantial knock over the last few years, crystalising in the results of the Eurobarometer published in January as part of the pan European National Integrity Systems survey. This found that 71% of Britons felt corruption was a major problem. Evidence given to the inquiry into the News of the World seems to confirm this deterioration of standards. Last week a Deputy Assistant Commissioner at the Met presented a concerning picture of business and government ethics in London.
Speaking of Police involvement in the inquiry she said, … “the cases we are investigating are not ones involving the odd drink, or meal, to police officers or other public officials. Instead, these are cases in which arrests have been made involving the delivery of regular, frequent and sometimes significant sums of money to small numbers of public officials by journalists…. Some of the initial e-mails reveal, upon further detailed investigation, multiple payments to individuals of thousands of pounds. In one case the figure, over several years, is in excess of $125,000. There is also mention in some e-mails of public officials being placed on ‘retainers’.”
If that is the setting in Britain where only 1% of people report having paid a bribe, is there a groundswell of corruption developing in New Zealand where 4% say they have recently paid a bribe?
www.guardian.co.uk/media/2012/feb/27/sun-culture-illegal-payments-leveson?newsfeed=true

28 February 2012
Transparency International found that there were unexpected numbers of New Zealanders who believed corruption was well established in 2010 when gathering data for the initial New Zealand corruption barometer. It found “an amazing 37% of New Zealanders believe corruption is increasing”. Surprisingly for many of us, 4% said they had paid a bribe in New Zealand in the preceding 12 months. The “clean” Scandinavian countries with whom we are often rated scored much better. Denmark was seen as corruption free, 1% of people in Britain said they had paid a bribe, and even Australians reported much less bribery than New Zealanders.
Traditional perceptions of Britain have taken a substantial knock over the last few years, crystalising in the results of the Eurobarometer published in January as part of the pan European National Integrity Systems survey. This found that 71% of Britons felt corruption was a major problem. Evidence given to the inquiry into the News of the World seems to confirm this deterioration of standards. Last week a Deputy Assistant Commissioner at the Met presented a concerning picture of business and government ethics in London.
Speaking of Police involvement in the inquiry she said, … “the cases we are investigating are not ones involving the odd drink, or meal, to police officers or other public officials. Instead, these are cases in which arrests have been made involving the delivery of regular, frequent and sometimes significant sums of money to small numbers of public officials by journalists…. Some of the initial e-mails reveal, upon further detailed investigation, multiple payments to individuals of thousands of pounds. In one case the figure, over several years, is in excess of $125,000. There is also mention in some e-mails of public officials being placed on ‘retainers’.”
If that is the setting in Britain where only 1% of people report having paid a bribe, is there a groundswell of corruption developing in New Zealand where 4% say they have recently paid a bribe?

Falling from grace

27 February 2012

Stuff yesterday posted an article on the conviction of the directors of Lombard Finance for offences under the Securities Act. Titled “How the mighty fall from grace” the article not only focused on two who were prominent lawyers (and former Ministers of Justice) and who were found to have failed in their statutory duties, but listed others convicted in the last 25 years who have been MPs and in a number of cases Ministers. 

The story did not expand into the abuse of travel allowances or misuse of other Parliamentary privileges which often get a reprise when the personal behaviour of MPs is in the limelight.

What is apparent in defending the charges is that the two former Ministers did not share the prosecutor’s view about the criminality of their conduct. In Britain, there were similar denials of wrongdoing when in 2009 a number of MPs of all parties were making bogus expenses claims.

“At that time of economic hardship, large sections of the public could be forgiven for thinking that politicians were living, if not on another planet, then at least on an island surrounded by a moat.”

The disconnect between the common perception of what is right and what is wrong, and the perception that elite groups have of the same circumstances, explored by academics Nicholas Allen and Sarah Birch, has been published recently in the European Journal of Political Research. In “On either side of a moat? Elite and mass attitudes towards right and wrong“, they compared responses to questions asked of a representative survey of the public with similar questions asked of British MPs and parliamentary candidates.

They found systematic differences between members of the public, candidates and MPs at both aggregate and individual levels. Aspiring MPs display significantly more tolerance for ethically dubious behaviour than other members of the public. Within the elite category, elected MPs exhibited more permissive ethical standards than those candidates who were unsuccessful.

This echoes earlier research where elites in New Zealand like those in Britain, Israel and the United States were found to be more tolerant of difference than the general public.

Allen and Birch comment that “such gaps are hugely important in a democratic context. In particular, if systematic differences emerge between what citizens and politicians expect, and will and will not tolerate, then politicians may behave in ways that offend many ordinary citizens, with obvious implications for levels of both ‘specific’ and ‘diffuse’ support… If voters’ expectations about the proper conduct of politicians are continually frustrated, then it has the potential to undermine public confidence in the democratic system as a whole.”

www.stuff.co.nz/national/politics/6481044/How-the-mighty-fall-from-gracewww.essex.ac.uk/government/ethicsandintegrity/

Training camp for lobbyists

24 February 2012
 
The Sunlight Foundation is a prominent United States NGO which seeks to raise awareness of the influences on government. The name of course reflects the famous observation of Supreme Court Justice Brandeis that “sunlight is the best disinfectant”.
 
This week the Foundation, as part of its commitment to openness and transparency, has reported how lobbying firms swallow a large percentage staff members supporting Representatives  and  Senators. Nearly 400 staff members who have left supporting roles in Congress since 2009 are now registered lobbyists.
 
Perhaps surprisingly advertising and public relations firms in ‘K’ street, took on only half as many former House staff as the lobbyist firms. What was concluded from the study was that “staff build up contacts and policy and political expertise. Then they often go “downtown” and cash in, taking their expertise and networks with them”.
 
It is conversion of these skills and contacts for partisan and commercial advantage that concerns institutions committed to strengthening good government and democratic processes.
 
The study found that moving to work in a lobbying firm offers the best remuneration for House staff members but is also the most demanding. In addition to advertising, other ‘downtown’ options included representing trade and professional organisations.
 
There is a similar pattern in Canada, Britain and Australia. Because there is no registration requirement for lobbyists in New Zealand, it is more difficult to assess the extent to which former staff of MPs and Ministers remain active in and around Parliament.
 
 

Public have more confidence in the Police than Police have in themselves

23 February 2012
The results of surveying 10,000 Canadian police officers to determine their views of professionalism standards across 31 different forces were published last week. In common with satisfaction surveys done within New Zealand Police, a majority of officers are critical of the standards of their leaders. Communication problems are seen as the cause of this distrust. There were 52 recommendations, “.. the most salient general recommendation is to improve support for and communication with the front line” …and for “…a proactive approach to setting, communicating and embedding ethical standards…”
The main goal of the study was to examine the factors affecting Police integrity. Participants were asked to rate the integrity of their superiors and colleagues. They were asked how they would respond to ethical challenges – and how other officers were likely to respond. The majority believed both superiors (64%) and colleagues (61%) acted with high integrity. This is an interesting contrast with the NZ State Services Integrity and Conduct Survey in 2010 , where respondents showed lower levels of trust in their superiors to do the right thing than they did in their colleagues. Of Canadian police officers 17% were very concerned about the standards of integrity of senior officers and 10% were similarly concerned about the behaviour of colleagues.
Canadian Police rated ethical challenges in the following order of seriousness:
  • providing confidential information to a friend
  • falsifying expenses
  • showing leniency to a colleague involved in a domestic assault
  • being abrupt and rude to the public
  • mocking an assignment
Respondents indicated that their colleagues were less likely to report misconduct than they were, themselves (53% cf 66%).
The report observed … “that police officers do not believe that the organisation or its senior managers take an interest in their concerns.” This echoes a comment in the 2010 NZ Police survey about the need to listen to staff as “A very large number of employees within NZ Police do not feel the organisation is interested in the view or opinions of its staff members.” Some aspects rated better in a 2011 survey, but a similar recommendation was made to NZ Police to improve bottom up communication.
In Canada, there is a concern about procedural fairness. “Police agencies need to communicate their concern for employees’ well-being, solicit employees’ input on decisions affecting them and provide support for employees’ goals.”
Despite some dissatisfaction among police officers, a noteworthy characteristic of the NZ Police is that among institutions rated by UMR in its Mood of the Nation surveys, Police consistently rate among the leaders. In the most recent survey of public confidence, NZ Police at 72% compared favourably with GPs (67%), the Military in third place (61%) and with the Public Service trailing much further back with 34% of the public indicating that they had a great deal or a lot of confidence.
The situation is similar in Canada. In a 2011 survey indicated that the justice sector engenders the highest levels of public trust in government, with the RCMP rated at 83%.

Some struggle to keep up with Open Government

22 February 2012

 

The Open Government Partnership now has 52 participating countries. Last week Panama and Costa Rica made commitments to develop the national plans to fulfil the Open Government Declaration.  The World Bank is championing membership and providing support for Member States to put these plans, described as an iterative process, into action.

 

The commitment is novel in most countries because it involves publishing their process for achieving open government and being exposed to international scrutiny. A United States Under-Secretary of State indicated at last week’s World Bank meeting that the idea of planning with a living document was uncomfortable, even for the eight founding countries.

The US, together with the other seven founding Members led the way with the launch of theirs National Action Plans in September 2011. The other governments are scheduled to present their plans at an April OGP meeting n Brazil. However when the OGP co-chairs, (United States and Brazil) asked governments to update their progress with developing action plans, only 20 countries provided the expected status reports.

 

This means that half the OGP membership seems to be falling behind already. A list of the “defaulters” is perhaps evidence that good intentions and the demands of the Open Government Declaration are a challenge. The missing are: Azerbaijan, Bulgaria, Denmark, El Salvador, Estonia, Georgia, Ghana, Greece, Italy, Jordan, Kenya, Latvia, Liberia, Lithuania, Mongolia, Montenegro, Netherlands, Spain, Sweden, Turkey, and the Ukraine.

 

New Zealand’s tardiness in becoming involved with the OGP may indicate a reluctance to be associated with some of these jurisdictions. There has been no public indication yet that Australia proposes to join the OGP either.

 

The OGP website is a rich information source.

http://www.opengovpartnership.org/

Perhaps a good education doesn’t need to cost a lot …

21 February 2012
 
 
The OECD publishes its PISA education survey statistics every three years.  The latest, released this month, suggests that New Zealand is getting its monies-worth from the spend on education.  New Zealand is rated in the top five countries for its children’s average reading performance and is one of the most efficient on an ability : cost ratio.
 
Shanghai (as a proxy for China) retains the highest performing status it acquired in the last PISA survey, indicating that the extraordinary methods adopted across China’s largest city are getting continuing success. 
 
New Zealand rates better than most developed countries.  They, generally, spend higher percentages of GDP on education.  Korea follows Shanghai in the pecking order of countries. The order having the top reading performance, is Shanghai, Korea, Finland, Hong Kong, Singapore, Canada, New Zealand, Japan and Australia. Other Northern European countries follow closely behind.
 
Providing a good education for its citizens is a self evident role of good government. The countries in the top 10 places also rate among the 20 least corrupt national public sectors on the Transparency International Corruption Perceptions Index – with the exception of Korea. Teachers in these countries also rate among the professions where levels of public trust and confidence are very high.  In the recently published UMR Mood of the Nation survey, New Zealand primary schools are the institution with the third highest public sector confidence rating at 67% after Police and GPs. (Universities are in 5th place and secondary schools in 6th. The Public Service is 12th of 18 surveyed institutions at 34%).
 
 
 
 
 

Where Britain goes, will we go?

20 February 2012

The Sunday Telegraph yesterday carried another report of measures being taken in Britain to reduce the cost of government. The Minister for the Cabinet Office has spoken of how the UK Government is creating a much leaner, more effective Whitehall machine, that manages its finances like the best run businesses.

There has been an inevitably reaction from those who see public administration as subject to rorts and incompetence. An example is the payment process of up to 4000 senior officials . They are being investigated because their remuneration may be being paid through companies they have set up for tax advantages. This tax avoidance brings into question the ethics of those officials and their commitment to good government. Ironically one who has been identified is a senior adviser in Treasury’s tax transparency office. Some officials paid through their own private businesses are reported to have deals worth up to £475,000.

There is possibly less opportunity for that practice in New Zealand as well remunerated positions usually involve the exercise of statutory powers. Section s 41 of the State Sector Act limits the delegation of chief executive powers to employees (and chief executives). Nevertheless remuneration practices for contractors and for some appointees to agency boards may not be that different from the British practice. A discretion is built into our processes in the Cabinet Circular (09) 5 which sets out the fees framework for members appointed to Crown bodies. Para 130 indicates that “… Payments made for board membership are generally derived by the member…”

Financial constraints in Britain have resulted in the smallest civil service since the Second World War and the lowest numbers in the armed forces since the Boer War. The Minister for the Cabinet Office has published a plan to reduce what he describes as a shocking 21 billion pound loss each year in public sector fraud.

In response there are critics who refer to the the incompetence of officials – and their costly bungles. A Telegraph article lists the following:

  • GPs’ contract which increased average pay by 40 per cent while decreasing the amount of work GPs are required to do;
  • the billions spent on the NHS computer system which doesn’t work;
  • the procurement of helicopters that turn out not to be airworthy and cost hundreds of millions to make safe; 
  • the£800 million spent on trying to reduce the rate at which students drop out of university, to no effect whatever;
  • the £500 million spent on building eight new call centres for the fire service which will never be used, but will cost several million pounds a month to maintain, empty, for the next 25 years;
  • the £2.2 billion that was paid to the wrong people in the first year tax credits were introduced.

And then there is the level of public confidence reflected in the survey results published in the EU Eurobarometer last week. Based on the 1300 British respondents;

  • 71% think corruption is a major problem in the UK [worst in Greece at 98%; best in Denmark at 19%]
  • 64% of people think corruption is part of the UK’s business culture [worst in Cyprus at 90%; best in Denmark at 28%]
  • 33% of UK citizens think that bribery or abuse of power is widespread among the police [worst in Cyprus at 75%; best in Finland at 7%]
  • 58% of UK citizens think that bribery or abuse of power is widespread among politicians [worst in Slovenia at 83%; best in the Netherlands at 27%]

http://www.telegraph.co.uk/news/politics/9085407/Tackling-the-shocking-level-of-public-sector-fraud-is-our-target-after-cutting-waste.html http://www.telegraph.co.uk/news/politics/9088086/Treasury-tax-review-to-scour-4000-posts.html