Tag: transparency

2021vi28, Monday: Interest.

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Accountability starts with keeping track of conflicts of interest. Fail to do that, and corruption comes next. As the Matt Hancock saga shows all too clearly.

Back in my banking days, part of my job – frankly, one of the less fun parts – was to help people understand not only what restrictions and controls applied to what they did, but why.

This was always, to my mind, critical. People might not agree with the “why”. Often, they didn’t. But you owe it to them to explain them. There’s a reason why “Because those are the rules” is on a list of “Things never to say to anyone, ever” in one of the most helpful books on interpersonal communication I ever read.* 

Often I could understand people’s questions. Not least because banking systems and controls frequently appeared to be designed by people who’d never, actually, met people before. Which broke Scott-Joynt’s First Rule of Policies and Procedures: don’t ever expect human beings not to behave like human beings; so design your systems with the grain of how people tick.

(The second rule, of course, is that policies are either written for people to use, or written to cover the organisation’s backside. Those written for the first purpose can often also achieve the second. Those written for the second, usually by lawyers like me, can never achieve the first. This is also the difference between focusing on risk and focusing on compliance; but that’s another discussion.)

But one set of questions always baffled me: those about conflicts of interest, and why they needed to be declared. Banker after angry banker would wave the form at me demanding why on earth the bank needed to know about the relationships they had and the businesses they were connected to. “None of this is relevant,” they’d grouch. “I haven’t done anything wrong.”

They were probably right. And it didn’t matter. Because the whole point of conflicts checks and declarations – whether general ones, or requirements to declare an interest if you’re involved in a decision which could benefit someone or something close to you – is preventative, not detective. It’s to put transparency in place before it’s needed, so that conflicts never actually arise. Which is why the broad declarations are needed: to avoid situations where there might appear to be a conflict, and thus the risk – yes, you guessed it – of corruption.

It doesn’t work that way, of course. People don’t declare. Often it’s relatively innocent, in a way: people think they’re not the kind of person who’d act improperly, to act partially, so therefore they don’t need to declare anything. Only dishonest people need to do that. And they’re not.

Balderdash. Most of us have immense blind spots when it comes to favouring those in our circle. Because we’re human. Because that’s how humans tick. So it’s not a matter of trusting honesty. It’s a matter of building in solutions where problems might arise, shining a great big spotlight on them, verifying connections, and thus obviating the problem as far as possible.

Why has this sprung to mind? It’s fairly obvious, I think: the Hancock Half-Hour of shame. The embarrassing clinch and the shameful do-as-I-say, not-as-I-do in re social distancing regulations and guidance is bad enough. Certainly enough reason for anyone with the slightest integrity to have resigned instantly, or (when it comes to his boss) to have sacked him on the spot. As is the hypocrisy of having demanded the head of Neil Ferguson, and then going on to do even worse yourself. 

But the conflicts are to my mind far more serious. There’s the obvious one, and the less obvious one. 

  • The first: the fact that Hancock appears to have given a job to a woman he was having an affair with, in secret, as well as sending work to members of her family. All while – so it’s reported – keeping comms relevant to this kind of thing out of government systems and on a private Gmail account. When the job or the contract came up, the only ethical thing to do would have been to declare an interest. He didn’t. Draw your own conclusions. 
  • The second: the fact that the only person with the power to decide whether his actions were acceptable or not is the PM. Someone not only with ethics that make Hancock look honourable, but with an immense vested interest in the outcome. 

Conflicts matter. Because being accountable matters. (Not just paper accountability; real accountability, in the sense of submission to those whose interests are not aligned with yours, and who have authority separate from your own.) Because transparency matters. And without it, you have corruption, self-dealing and disgrace.

Always. 

*The book’s called “Verbal Judo”. Setting aside the unfortunate fact that the co-(ghost?) writer seems to be the bloke who later co-wrote the ghastly “Left Behind” series of apocalyptic cod-Christian guff, it’s excellent. Written from a police officer’s point of view, but with much wider application. If I mention that other phrases on that list include “you always/you never”, “come here”, “be reasonable”, and my personal favourite, “calm down”, I hope you’ll agree there’s some smart and thoughtful stuff there.

Note: what with the family stuff that’s going on, I’m going to experiment with just having a single item for each post. That should (a) allow me to post more regularly, by not feeling obliged to have multiple things each day and thus ending up not getting stuff out; (b) make it easier to link to specific pieces. Hope that’s OK. If not, let me know.

(If you’d like to read more like this, and would prefer it simply landing in your inbox three or so times a week, please go ahead and subscribe at https://remoteaccessbar.substack.com/.)

2021vi21, Monday: It doesn’t have to be “personal” to be corruption.

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Organisations can be corrupt, not just people. As a new report shows. And without an public duty to be transparent, that will be the rule, not the exception.

Short thought: There are a million definitions of corruption. It’s one of those “know it when you see it” kinds of words, and an exact definition is probably unhelpful. 

(Put up with me here. I’m going to wander off into a bit of a discursion. But I promise: it’ll come back to something current, and important. Something that ought to make you pretty angry. It did me.)

You can see this in one of the most common ones, which boils down to “the abuse of entrusted power for personal gain”. It’s not bad, so far as it goes. But there’s a lot of freight in those words, and in each of them – and that can lead us in unfortunate directions.

(One useful omission is any reference to “dishonesty”. For years, there’s been legal argument about whether dishonesty was an essential element in corruption. In the UK, it’s now pretty settled that it doesn’t – and that’s a good thing. “Corrupt” and “dishonest” are overlapping circles: you can be either without the other, although often they co-exist. Think, for instance, of blatant, balls-out abuse of power where someone simply takes advantage of their position without even bothering to hide what they’re doing. Not uncommon, and not in the slightest dishonest. But corrupt all the same.)

So what do I mean by “freight” in the words? This is where I behave like the stereotypical barrister: picking apart the language. But there’s a point, as I hope you’ll see. Taking it a step at a time:

  • “Abuse”. Not all uses of power for personal gain are necessarily corrupt. A decision on behalf of your organisation might make you better off, but also be in the organisation’s best interests – and those of its stakeholders. No abuse there. No corruption.
  • “Entrusted power”. An essential element in how law in England defined corruption used to be that an agency relationship needed to exist. This is still there in civil matters, to an extent: it’s trite law now (following FHB) that if someone acting for you takes a bribe, the law sees their gain as in fact yours, and which that agent (holding it in trust for you) therefore can’t lawfully use for themselves. As recently as 15 years ago, amid arguments over what ultimately became the Bribery Act 2010, many pushed for explicit inclusion of an agency requirement in the proposed new statute. Ultimately that idea died; but we still have the essential idea that bribery, at least (and corruption more generally) is about what you do with authority that you’ve been given and which you wield on others’ behalf.
  • “Gain”. This is often misinterpreted as something strictly financial. In the UK, at least, that’s not the case, at least so long as bribery is concerned: the offences in the Bribery Act are committed for the gift or receipt of “financial or other advantage” (see for instance s1(2)(a) and s2(2)). Unlike in the Fraud Act 2006 s5, where “gain” has to be in property or something financial, an intangible advantage will qualify. Such as, for example, the preservation of a reputation, or the burying of bad news.
  • “Personal”. This, I’d suggest, is also a dangerous one. It gives the impression that corruption is solely and always about individuals – whether acting in their own favour or for (for instance) their families or friends. 

Now we’re at the point. Sorry it took this long. The reason for this textual exegesis is the Daniel Morgan Independent Panel, whose report (all 1,200-odd pages of it) was finally released last week. For the uninitiated, it tells a thoroughly grubby tale of the grossly-incompetent investigation, over decades, by the Metropolitan Police of a 1980s murder of a journalist.

But worse than the incompetence is what the Panel’s report says is the Met’s “institutional corruption”. Partly because of the prevailing suspicion that Met officers were far too close to crooks for comfort, as they were with private investigators who hovered in the hinterland between the two. 

But mostly because of what appears to be an eight-year effort by the Met to obstruct the Inquiry, whether by failing to produce evidence, blocking access to systems, or otherwise. The Panel doesn’t mince words:

In failing to acknowledge its many failings over the 34 years since the murder of Daniel Morgan, the Metropolitan Police’s first objective was to protect itself. In so doing it compounded the suffering and trauma of the family.

…The lack of leadership, the reluctance to confront serious issues and the refusal to be publicly and internally candid about failings and deficiencies within the organisation, in this case and others, engenders distrust among the community served by the Metropolitan Police and within the organisation itself. The support of that community, and the confidence of good police officers in the organisation which they serve, is vital to the delivery of effective efficient policing. It is to be hoped that the findings and recommendations contained in this report will lead to a change of culture and ethos throughout the police service.

One could say that “institutional corruption” is a misuse of language. Is it really corruption for an organisation to drag its feet just to try to stifle criticism and keep its incompetence under wraps? That’s not “personal gain”, is it?

Wrong. What we’re talking about is, I think undoubtedly, the abuse of entrusted power. And it may not necessarily be for the individual gain of those making the decisions, but it’s definitely to aid the organisation at the cost of those it serves. Perhaps “personal” isn’t the right word; but to the extent that we’re talking about placing its own interests above the demands of its assigned duties and obligations, it fits. 

Another criticism might be: well, isn’t self-preservation an inevitable habit of any large institution? Of course it is. But there’s still a dividing line. We’re back to the “know it when you see it”. There’s vigorous PR. And then there’s this. They’re not the same. It’s facile, and I think foolish or in some cases dishonest, to suggest otherwise. 

The Morgan report is huge. Few will read it. But the summary is less than 20 pages. It tells an entirely unedifying story. And, to anyone concerned that those who protect us can be trusted not to privilege their own concerns over ours, it’s in my view essential reading.

Someone is right on the internet: A key recommendation in the Morgan report is the imposing of a “duty of candour” for public servants and public institutions. In other words, they would have a responsibility to be proactive in informing the people they claim to serve about what they’re doing and how.

This topic is picked up by David Allen Green in the latest of a set of posts concerning what he believes is a prerequisite for meaningful public service reform. David points out, perhaps slightly caustically, that calls for such reform are frequent (and the person voicing them is “usually Michael Gove”), but are rarely accompanied by any acknowledgement that without an imposition of transparency – that is, the obligation to disclose information they don’t want anyone to see – such calls are essentially meaningless. They are, he says, 

Nothing but sophistry and illusion.

I think he’s right. Governments (and public bodies) in general are loathe to let sunlight into what they do, but I don’t think it’s an exaggeration to say our current administration takes this to an extreme: whether it’s changes to judicial review, or a backstairs bit of the Cabinet Office making sure freedom of information requests are hobbled, or an apparently academic disquisition on whether judges are trespassing on the rule of law in cases concerning (also) freedom of information, the trend is to lock down, not open up. To avoid scrutiny. To obscure transparency.

In a nutshell: to be unaccountable.

This cannot be right. Particularly in our majoritarian polity, where the combination of first-past-the-post elections and parliamentary supremacy puts immense power in the hands of the government of the day, trammelled only by conventions which this administration doesn’t seem to recognise, transparency is critical if those running the show are to be held to account. 

Mind you, I’d be saying the same thing were another party to be in power. Power corrupts. When it’s wielded without accountability, in the dark, its abuse is practically inevitable. 

Ah, you might say. But you’re forgetting Hanlon’s Razor: that wonderful (and I’ve always believed accurate) warning against assuming malice where something can just as easily be explained by incompetence. (More pithily put as: “Cock-up is far more common than conspiracy.”)

No. I haven’t. If anything, that’s still more important. Errors, mistakes and negligence only get learned from if they’re recognised. Institutional pressure to sweep cock-ups under the carpet is always intense: yes, partly for legal reasons, but as often simply to save face. Without transparency, the same errors happen. Over and over again. 

And we all pay.

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