Friday, July 17, 2020

The OIA rewrite demands genuine consultation

Back on Tuesday, open government expert Andrew Ecclestone wrote an op-ed in Stuff about the government's planned OIA-rewrite. In addition to pushing for the usual changes - no conclusive withholding grounds, enforceable proactive disclosure requirements, and the replacement of the Ombudsman with a dedicated Information Commissioner - he also argues strongly for a full and public consultation process:

But there are also significant risks. Little suggested that legislation might be introduced without prior public consultation. Any concerns could be expressed in submissions to a select committee.

This would be dangerous and unwise. Last year’s consultation contained no statement of the Government’s approach to our right to know. That was understandable when the question was “Should we have a review?” But to embark on major changes to our rights without a prior explanation of the Government’s values and intentions would be contrary to the DPMC guidance on policy making. It would also run counter to the OIA’s participative purposes, and our membership of the Open Government Partnership.


Finally, the idea that the public has a genuine opportunity to persuade MPs to improve government bills through select committee submissions is not borne out by the experience of many people and civil society organisations. The introduction of a bill without prior public deliberation, and opportunities for ministers to hear from those outside government, will not only result in missed opportunities but also increase political and media friction, and diminish public trust in government.

The latter point ties in neatly to a series of recent posts on Pundit by economist Brian Easton. Genuine consultation requires a genuine effort, sufficient time, sufficient information, meaningful discussion, and an open mind on the part of the decider. And this is never met by a select committee process, for the simple fact that the major policy decisions have already been made and set in stone before they even begin. Genuine consultation means consultation when a policy is being shaped, not afterwards.

Fundamentally the OIA is our Act, our way of keeping an eye on government. And like any other part of our constitution, we should be consulted on what it says. The usual process of the government deciding what it wants to do, then presenting it to Parliament to be rubberstamped (or at most, tweaked) by a whipped select committee is simply inappropriate here.