By Tony Collins
A government-commissioned review yesterday backed a Bill that could, if enacted and applied to Whitehall generally, prevent billions of pounds being lost on wasteful projects.
The Public Authority Accountability Bill – known informally as the Hillsborough Law – would establish an offence of intentionally or recklessly misleading the public, media or court proceedings.
It would also impose a legal requirement on public authorities to act with candour, transparency and frankness when things go wrong.
Although the Bill was a reaction, in part, to the cover up by public authorities of their failings in the light of Hillsborough, it could, if enacted, deter public authorities from covering up failings generally – including on major IT programmes.
For decades public authorities have had the freedom – unrestricted by any legislation – to cover up failures and issue misleading statements to the public, Parliament and the media.
In the IT sphere, early problems with the Universal Credit IT programme were kept secret and misleadingly positive statements issued. The National Audit Office later criticised a “good news” culture on the Universal Credit programme.
And still the DWP is fighting to block the disclosure of five project assessment reviews that were carried out on the Universal Credit IT programme between 2012 and 2015.
It could be argued that billions of pounds lost on the NPfIT – the National Programme for IT in the NHS – would have been avoided if the Department of Health had been open and candid at the start of the programme about the programme’s impractically ambitious aims, timescales and budgets.
The Department for Business, Energy and Industrial Strategy is currently keeping secret its progress reports on the £111bn smart meters rollout – which independent experts have said is a failing programme. The department routinely issues positive statements to the media on the robust state of the programme.
The Public Authority Accountability Bill was drafted by lawyers who had been involved with representing bereaved Hillsborough families. It is aimed mainly at government inquiries, court proceedings and investigations into lapses of public services.
But it would also enshrine into law a duty on public authorities, public servants, officials and others to act within their powers with “transparency, candour and frankness”.
Lawyers who drafted the Bill refer on their website to “institutional defensiveness and a culture of denial” when things go wrong. They say,
“In 2017 we expect public authorities and individuals acting as public servants to be truthful and act with candour. Unfortunately, repeated examples have shown us that this is not generally the case.
“Instead of acting in the public interest by telling the truth, public authorities have tended to according to narrow organisational and individual motives by trying to cover up faults and deny responsibility …”
Backing for the Bill came yesterday from a 117-page report on the Hillsborough disaster by Bishop James Jones. The government commissioned him to produce a report on the experiences of the Hillsborough families so that their “perspective is not lost”.
Jones’ impressive report refers to institutions that “closed ranks, refused to disclose information, used public money to defend its interests and acted in a way that was both intimidating and oppressive”
His report refers to public bodies in general when it points to a “cultural condition” and “mindset” that features an “instinctive prioritisation of the reputation of an organisation over the citizen’s right to expect people to be held to account for their actions”. This, says the report, “represents a barrier to real accountability”.
“As a cultural condition, this mindset is not automatically changed, still less dislodged, by changes in policies or processes. What is needed is a change in attitude, culture, heart and mind.”
The report urges leaders of “all public bodies” to make a commitment to cultural change by publicly signing a new charter.
The charter commits public bodies to:
- Place the public interest above its own reputation.
- Approach forms of scrutiny with candour, in an open, honest and transparent way, making full disclosure of relevant documents, material and facts.
- Learn from the findings of external scrutiny and from past mistakes.
- Avoid seeking to defend the indefensible or to dismiss or disparage those who may have suffered where the organisation has fallen short.
- When falling short, apologise straightforwardly and genuinely.
- Not knowingly mislead the public or the media.
The report says that institutional defensiveness and a culture of denial are “endemic amongst public institutions as has been demonstrated not only by the Hillsborough cover up but countless other examples.”
Stuart Hamilton, son of Roy Hamilton who died at Hillsborough, is quoted in the report as saying,
“Police, officials and civil servants should have a duty of revealing the full facts and not merely selecting some truths to reveal but not others. Not lying or not misleading is simply not good enough. Without this, future disasters cannot be averted and appropriate policies and procedures cannot be developed to protect society.
“Such selective revealing of information also results in the delay of justice to the point where it cannot be served”.
“I believe that without a change not only in the law but also in the mindset of the public authorities (which a law can encourage) then very little exists to stop the post-event actions happening again.”
Whitehall departments and the Infrastructure and Projects Authority publish their own narratives on the progress on major IT-enabled projects and programmes such as Universal Credit and smart meters.
But their source reports aren’t published.
Early disclosure of failings could have prevented hundreds of millions of pounds being lost on FireControl project, BBC’s Digital Media Initiative, the Home Office Raytheon e-borders and C-Nomis national offender management information projects and the Rural Payments Agency’s CAP delivery programme (which, alone, contributed to EU penalties of about £600m).
Yesterday’s beautifully-crafted report into the Hillsborough disaster – entitled “The patronising disposition of unaccountable power” – is published on the Gov.uk website.
It has nothing to do with IT-enabled projects and programmes. But, in an unintentional way, it sums up a public sector culture that has afflicted nearly every Whitehall IT-based project failure in the last 25 years.
A culture of denial is not merely prevalent today; it is pervasive. All Whitehall departments keep quiet about reports on their failings. It is “normal” for departments to issue misleadingly positive statements to the media about progress on their programmes.
The statements are not lies. They deploy facts selectively, in a way that covers up failings. That’s the Whitehall culture. That’s what departments are expected to do.
According to Bishop Jones’ Hillsborough report, one senior policeman told bereaved families that he was not obliged to reveal the contents of his reports. He could bury them in his garden if he wished.
It’s the same with government departments. There is no legal duty to keep programme reports, still less any requirement to publish them.
If Bishop Jones’ charter is signed by leaders of public authorities including government departments, and Andy Burnham’s Bill becomes law, the requirement for candour and transparency could mean that IT programme progress reports are made available routinely.
If this happened – a big if – senior public officials would have to think twice before risking billions of pounds on a scheme that held out the prospect of being fun to work on but which they knew had little chance of success within the proposed timescales, scope and budget.
It’s largely because of in-built secrecy that the impossibly impractical NPfIT was allowed to get underway. Billions of pounds was wasted.
Some may say that the last thing ministers and their permanent secretaries will want is the public, media and MPs being able to scrutinise what is really happening on, say, a new customs IT project to handle imports and exports after Brexit.
But the anger over the poor behaviour of public authorities after Hillsborough means that the Bill has an outside chance of eventually becoming law. Meanwhile public sector leaders could seriously consider signing Jones’ charter.
John Stuart Mill wrote in 1859 (On Liberty and The Subjection of Women) that the “only stimulus which can keep the ability of the [public] body itself up to a high standard is liability to the watchful criticism of equal ability outside the body”.