Transparency is a pillar of democracy

Transparency in government is one of the pillars of democracy.

This should not be controversial. Every democratic government pays at least lip service to the proposition that it should be open and transparent in its dealings with the public. Sometimes it is more than lip service. Many governments have legislated to ensure that people have access to information in the government’s possession, unless of course there is some good reason why it should not be in the public domain. In Jersey the States Assembly enacted the Freedom of Information Law in 2011. That Law gives the public the right to information held by public authorities. It is a legal right which can be enforced, ultimately by the courts.

The Freedom of Information (FOI) leaflet issued in 2015 by the Government entitled “Just Ask” could not be clearer in its intent. “FOI legislation exists to make public information easily available and accessible to anyone who asks for it. It aims to make public authorities more accountable and transparent in how they work. The Government is fully committed to complying with the letter and spirit of FOI legislation.” One could not ask for more. But is the Government living up to this expectation?

All bureaucracies tend to secrecy. It is time-consuming and tedious to answer questions, particularly from those whose political views are different from your own. Giving a full and truthful answer may just lead to more questions, and even occasionally to embarrassment. So, some ministers and officials retreat into obfuscation or do not answer the question, or both.

Given this bureaucratic tendency to secrecy, one would like to be able to write that Ministers are constantly alert to their obligation to make public information easily available. But changes in the public administration of Jersey make that more complicated. One has the impression that Ministers are sometimes no longer in charge. The furore that erupted around the refusal to release a performance report prepared for the Public Health Department seemed to be the consequence of a decision by departmental officials. When the volte-face occurred, the apology came from the departmental head and not from the Minister. One is led to conclude that the Minister was not consulted by his department on a matter which was clearly of political importance. If he was consulted, it is surprising that no apology came from him for the blatant failure to make public information accessible to all.

What does “transparency” mean? You can see clearly through transparent glass what lies beyond. If a government is acting transparently, you can understand from the information they give what the plan is all about. People can only judge the merits of actions or proposals if they are given enough information.

The Government has failed woefully to be transparent about the new hospital, which will be the largest investment any government in Jersey has ever made. Information has been dribbled out on a “need to know” basis. The site selection was a travesty of due process. We do not know why two obvious contenders (St Saviour’s Hospital and Warwick Farm) were eliminated in favour of equally obvious non-starters (St Andrew’s Park and Millbrook Playing Fields). We still do not know the exact specification for the hospital including the number of beds, the size of the building and the facilities that it will contain. We have still seen no detailed plan for the major engineering works for access up Westmount Road despite many requests from St Helier parishioners and others. We still do not know with any precision the projected cost. The Political Oversight Group stated in August 2021 that the cost per square metre was £4497. More recently, the Assistant Treasury Minister gave a substantially larger figure of £6200. The funding request, however, lodged in P.80/2021, is for a staggering £804 million, which represents approximately £12000 per square metre. Communication from the Government has been lamentable.

That might be viewed as surprising given the huge increase in the number of officials in the Communications Department, which has risen in the last 3 years from 4 to over 35. Perhaps not. The procedures put in place in this emergent small empire reportedly make it difficult for journalists to get access to a minister, and certainly to get answers to questions. Far from facilitating the dissemination of information, the Communications Department has become a barrier to transparency.

Anonymity is another enemy of transparency. If politicians or officials are taking advice from somebody, the public needs to know who that somebody is. The Government established a Citizens’ Panel to develop the criteria for choosing the site of the hospital, but the Panel was shrouded in secrecy. The public were not allowed to know who was helping to choose the site. The same anonymity obscured the identity of those taking part in the Citizens’ Assembly on Climate Change. What is the justification for secrecy as to membership of these bodies? Surely it is desirable for people to know who is involved so that they can also participate by giving their views to any members whom they know. This author recently made an FOI request to establish the identity of members of the Treasury Advisory Panel which advises the Minister and the States Treasurer. The chairman’s name is in the public domain, but one is apparently not entitled to know who the other members are because it is a private matter. This is extraordinary. The Panel has recently given advice on the controversial Debt Strategy which has recently been published. How can one judge the Panel’s expertise if one does not know who the members are? Indeed, it could be argued that the advice itself, other than anything which is commercially confidential, should be in the public domain. Those who take part in public affairs should not be hidden behind a cloak of secrecy.

Of course, there are occasions when information cannot or should not be shared with the public. There are instances where transparency would not be conducive to democracy and good government; for example, if information is commercially sensitive, or relates to an individual’s private affairs, or is covered by legislation on official secrets. It is also important to allow ministers and officials some space in which to have private discussions as they seek to develop policy or to discuss their reactions to pressing problems of the moment. Without such space, fresh thinking and innovation might be stifled. There is a balance to be struck.

But when decisions have been made, there is a public interest in enabling people to understand them. The Corporate Services Scrutiny Panel’s recent report found that the States Employment Board (SEB) was lacking “transparency, coherent strategy and consistent implementation of policies and procedures”. This seems to be borne out by the SEB’s refusal to disclose why written consent was given to the former Chief Executive’s second job as a non-executive director with UK real estate company NewRiver Reit plc. Having been given consent to the second job, the former Chief Executive was promptly asked to resign it, giving rise to legal obligations which led ultimately to a payment to him of £500,000. Why did they give that consent? Was it to avoid embarrassment for the Chief Minister who had given oral approval? The public is entitled to an explanation, but none has been forthcoming. There may have been a good reason for the SEB’s decision, but we do not know what it is. Such lack of transparency undermines confidence in government.  

Transparency enables Ministers and officials to be accountable for their actions to the States Assembly and to the public whom they serve. One cannot judge the Government’s performance if it is not committed to openness. Transparency is part of the bedrock of democracy. It is not an optional extra.