[Summary: Critical reflections and comments on the context and content of the UK’s 2021-23 Open Government Partnership National Action Plan]

Screenshot of https://www.gov.uk/government/publications/uk-national-action-plan-for-open-government-2021-2023/uk-national-action-plan-for-open-government-2021-2023

If you’re in the UK, you might be excused for paying more attention to the other report released today, but around the same time as Sue Gray’s report on rule-breaking lockdown parties at Number 10 Downing Street was published, the UK’s 2021-23 Open Government Partnership National Action Plan (NAP) also surfaced on gov.uk.

I was involved in civil society aspects of developing of the UK’s 2nd and 3rd NAPs, and have written critiques of the others, so, although I’ve had minimal involvement in this NAP (I attended a few of the online engagement sessions, mainly on procurement transparency commitments, before they appeared to peter out) I thought I should try and unpack this one in the same kind of way.

By way of context, it’s a very tough time to be trying to advance the open government agenda in the UK. With Sue Gray’s report, and Prime Ministerial responses to it today, confirming the lack of integrity and the culture of dishonesty at the very centre of Number 10; just over a week after a ministerial resignation at the despatch box over government failures to manage billions of pounds of fraud during the COVID response; and on the day that government promised to pursue a post-Brexit deregulatory agenda; we have rarely faced a greater need, yet a less hospitable environment, for reforms that can strengthen checks and balances on government power, reduce space for corrupt behaviour, and bring citizens into dialogue about solving pressing environmental, social and political problems. As a key Cabinet Office civil servant notes, it’s a credit to all involved from the civil service and civil society, that the NAP was published at all in such difficult circumstances. But, although the plans’ publication shows that embers of open government are still there in Whitehall, the absence of a ministerial foreword, the lack of ambition in the plan, and the apparent lack of departmental ownership for the commitments it does contain (past plans listed the responsible stakeholder for commitments; this one does not), suggests that the status of open government in the UK, and the political will to take action on government reform within the international framework of the OGP, has fallen even further than in 2019.

When I wrote about the 2019 plan, I concluded that “The Global OGP process is doing very little to spur on UK action”. Since then, the UK has been called out and placed under review by the OGP Criteria & Standards Subcommittee in 2021 for missing action plan deadlines, and falling short of minimum requirements for public involvement in NAP development. Today’s published plan appears to admit that not enough has yet been done to rectify this, noting that:

In order to meet this criteria the government will amend and develop the initial commitment areas in NAP5 with civil society over the course of 2022.

Notably, past promises to civil society of adding to commitments to the NAP after the OGP deadline were not met (in part, if I recall correctly, because of issues with how this would interact with the OGP’s Independent Review Mechanism process), and so, with this line, civil society have a tactical choice to make: whether to engage in seeking to secure updates to the plan with assurance these will be taken forward, or whether to focus on ‘outsider’ strategies to put pressure on future UK OGP engagement. As Gavin Freeguard writes, we may be running up against the limits of “a one-size-fits-all international process that can’t possibly fit into the rhythms and rituals of UK government”. If this is so, then there is a significant challenge ahead to find any other drivers that can help secure meaningful open governance reforms in the UK: recognising that the coming years may be as much about the work of shoring up, and repair, as about securing grand new commitments.

A look at NAP5 commitments

Given the wider context, it hardly seems worth offering a critique of the individual commitments (but, erm, I ended up writing one anyway…) . It’s certainly difficult to extract any sense of a SMART (Specific, Measurable, Achievable, Realistic, Time-bound) milestone from any of them, and those that do appear to have some sort of measurable target betray a woeful lack of ambition*.

Take for example “publishing 90% of ‘above threshold’ contract awards within 90 days calendar days [of award presumably]”. Not only does that leave absolutely massive loopholes (any contract that it would be convenient not to publish could fall into the 10%; and 90-days takes disclosure of information on awards far beyond the period during which economic operators who lose out on a bid could be able to challenge a decision), but, this is more or less a commitment rolled over from the last National Action Plan. Surely, with the learning from the last few years of procurement scandals, and learning from the fact that Open Contracting commitments from the past have been poorly implemented, a credible National Action Plan would be calling for wholesale reform of procurement publication, following other OGP members who make award publication a binding part of a contract being enforceable, or invoices against it payable?

(*To be clear: I believe the vast majority of the fault for this lies with Ministers, not with the other individuals inside and outside government who have engaged in the NAP process in good faith).

Other milestones are almost comical in their framing. I’m not sure I’ve seen a sentence squeeze in quite as many caveats as the ‘commitment’ to build on the interesting but limited foundations of a draft Algorithmic Transparency ‘Data’ ‘Standard’, by working:

with internal and external stakeholders to gauge the feasibility of conducting a scoping exercise focused on mapping existing legal requirements for appeal mechanisms, for example due to administrative law, data protection law, or domain-specific legislation; with a view to sharing this information with the public. [my emphasis]

If I’m reading this right that could well be: a conversation with unspecified stakeholders to gauge whether it’s even possible to work out the scope of a mapping that then may or may not take place, may nor may not be comprehensive, and may or may not result in outputs shared with the public. Even read more charitably (let’s assume the scoping exercise involves the mapping. not just scopes it!), surely the point of the National Action Plan development process is have the conversations with internal and external stakeholders to ‘gauge the feasibility’ of an open government action taking place?

Others have commented on the backsliding in commitments to Open Justice, and I’ll leave it to those more involved at present in combatting the UK’s role in Illicit Financial Flows to comment on the limited new commitments there. However, I do want to pick up two comments on the health section in the NAP. Firstly, while inclusion of health within the NAP, as a topic much more legible in many people’s daily lives (and not only in the last two years) than topics like procurement or stolen asset recovery, is broadly welcome, the health section betrays a worrying lack of distinction between:

• Patient data;

• Health system data;

The State of Open Data: Histories and Horizon’s chapter on Health offers a useful model for thinking about this. In general, Open Government should be concerned with planning and operational data, service information, and research outputs. Where open government and personal data meet, it should be about the protection of individuals data rights: recognising elements of citizen privacy as foundational for open government.

Openness of data based on type and intended use (Source: State of Open Data - Mark Irura)
Openness of data based on type and intended use (Source: State of Open Data – Mark Irura)

In practice, when we talk of transparency, we need to be very clear to distinguish transparency about how (personal) health data is used (generally a good thing), and transparency of (personal) health data (usually a sign that something has gone profoundly wrong with data protection!). To talk about transparency of health data without qualifiers risks messy policy making, and undermining trust in both open government and health data practices. After reading it over a few times, I *think*Objective 1: accountability and transparency’ under the health heading is about being transparent and accountable about how data is used,  but there should be little room for sloppy drafting in these matters. The elision of personal health data sharing with open government has been something civil society have had to be consistently watchful of in the history of UK NAPs, and it appears this time around is no different.

Secondly, and perhaps related, it’s not at all clear to me why a a “standards and interoperability strategy for adoption across health and adult social care” (under Health ‘Objective 2: Data standards and interoperability’) belongs in an Open Government National Action Plan. Sure, the UK health system could benefit from greater interoperability of clinical systems, and this might have an impact on patient welfare. But the drivers for this are not open government: they are patient care. And an OGP National Action Plan is going to do little to move the needle on a challenge that the health sector has been tackling for decades (I recall conversations around the dining room table with my Dad, then an NHS manager, twenty years ago, about the latest initiatives then to move towards standardised models for interoperable patient data and referrals).

It might seem hair-splitting to say that certain reforms to government fall outside the scope of open government, but for the concept to be meaningful it can’t mean all and any reform of government systems. If we were talking about ways of engaging citizens in the design process for interoperability standards, and thinking critically about the political and social impact that categorisations within health records have, we might have something worthy of an open government plan, but we don’t. Instead, we have an uncritical focus on centralising data, and a development approach that will only involve “vendors, suppliers, digital technologists, app developers and the open source community”, but not actual care-service users, or people affected by the system design*.

(*I know that in practice there are many fantastic service and technology designers around the NHS who are both critically aware of the cost and benefit tradeoffs of health system interoperability, and a personal/professional commitment to work with service users in all design work; but the absence of service-users from the text of the NAP commitment is notable.)

Lastly, the plan includes a placeholder for forthcoming commitments on “Local transparency”, to be furnished by the Department for Levelling Up, Housing and Communities (DLUHC) sometime in 2022. In past rounds of the NAP, civil society published a clear vision for the commitments they would like to see under certain headings, and the NAP has named the civil society partners working to develop and monitor commitments. Not this time around it seems. Whilst OGP colleagues in Northern Ireland have been running workshops to talk about open local government, I can’t find evidence of any conversations that might show what might fall under this heading when, or if, the current Westminster NAP evolves.

Still looking for a way forward…

As I wrote in 2019, I generally prefer my blogging (and engagement) to be constructive: but that’s not been easy recent Open Government processes in the UK. At the same time, I did leave a recent session on ‘The (Absolute) State of Open Government’ at the latest UKOpenGovCamp unconference feeling surprisingly optimistic. Whilst any political will from the Conservative government for meaningful open government is, at least at present, sorely lacking, open working cultures within some pockets of government seem to have been remarkably resilient, and even appear to have deepened over the course of the pandemic. The people of open government are still there, even if the political leadership and policies are missing in action.

All the ambitious, necessary, practical and SMART commitment ideas that didn’t make it into this NAP need to be implementation-ready for any openings for reform that may come in the volatile near-future of UK politics. Just as civil society successfully used the UK’s Chairmanship and hosting of the OGP Summit back in 2012/13 to lock in stronger open beneficial ownership data commitments, civil society needs to be ready with ideas that, while they may get no traction right now, might find an audience, moment and leverage in future – at least if we manage to protect and renew our currently fragile democratic system.

I’ve long said that the OGP should be a space for the UK to learn from other countries: forgoing ideas of UK exceptionalism, and recognising that polities across the world have grapled with the kinds of problems of populist and unaccountable leadership we’re currently facing. As I work on finalising the Global Data Barometer Report, I’ll be personally paying particular attention to the ideas and examples from colleagues across OGP civil society that are particularly relevant to learn from.

And if you are in anyway way interested in open government in the UK, even though the process right now feels rather stuck and futile, you can sign-up to the UK civil society Open Government Network mailing list to be ready to get involved in revitalising open government action in the UK when the opportunity is there (or, perhaps, when we collectively make it arise).

Original source – Tim Davies

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