8 June 2023

There really is such a thing as too much transparency


The row between the Cabinet Office and the Hallett Inquiry has brought to the fore once again one of the more important forever wars of British politics: how much transparency is too much transparency?

On one side are those to whom the very question seems absurd. How can there be such a thing as too much transparency? Do we, that is, ‘the public’, not have the right to see… well, whatever it is we’re talking about – the internal workings of government, debates in the House of Commons, whatever?

Arrayed against them are those (and I am one) who argue that such access has its costs. The advent of the Freedom of Information Act, for example, was followed by the rise of Tony Blair’s ‘sofa government’; writers such as Charles Moore, who prepared his three-volume biography of Margaret Thatcher from official papers, argue that FOI is drastically thinning the historical record, as ministers and officials avoid committing things to paper.

Likewise, one of the arguments adduced by Sir James Eadie, a senior government lawyer, for the Cabinet Office not handing over all the WhatsApp records demanded by Dame Heather Hallett is the need for confidential discussion between ministers. Should the Government lose its judicial review, we can be sure that ministers, advisers, and officials will further adapt.

Thus, where once we might expect a near-complete insight into a previous government once its papers were released after 20 or 30 years under the Public Records Act, more and more discussions may now never be recorded at all.

Yet this is not the only way in which too much sunlight can be anything but the best disinfectant. For example, Lewis Goodall, of the News Agents podcast, yesterday suggested that: ‘In 21st century Britain, it remains an absurdity that TV cameras remain prohibited in most courts’. After getting pushback, he added: 

‘Same arguments being wheeled out against this as same arguments used against Parliament being televised. Few would now argue that was a mistake.’

Perhaps he’s right on the numbers – but the few who do make that argument are correct. Televising Parliament was a bad move, and the Government would be ill-advised to allow the cameras into the courts on such a woeful precedent.

Why should this be? The argument about Freedom of Information doesn’t really apply, after all. Court trials and proceedings in Parliament have to take place at fixed locations; they could hardly be displaced by the lens into new, more covert spaces.

Instead, the argument against televising the House of Commons rests on another principle: that the camera is not a neutral force

This would not, in other contexts, be a controversial statement. The so-called Observer Effect is real, and widely recognised in nature. One research paper, appropriately titled ‘Heisenberg in the ER’, found that mental patients were significantly less likely to require sedation if they knew they were being observed. And not for nothing did Edgar Albert Guest write in his poem My Creed:

‘To have no secret place wherein,
I stoop unseen to shame or sin;
To be the same when I’m alone
as when my every deed is known.’

As an idealised model of personal virtue, acting always as if we are observed might be fair enough – and may support the claims of those demanding maximum transparency. 

But institutions have to be designed around how actual human beings behave – and the evidence for the impact of televised broadcast on legislatures is not great. In the United States, so-called regression discontinuity design (RDD) analysis of US legislatures apparently found noticeable impacts on polarisation; one study from Turkey, where the parliament only turned on the cameras on certain days of the week, found that:

‘…the varying presence of television cameras exacerbated the effect of electoral and reputation-building motivations on parliamentary behaviour, encouraging electorally unsafe and junior MPs to shift their constituency focus to the televised proceedings.’

We don’t have a detailed academic study for Westminster, as far as I know. But when one thinks about it, it would be very strange if the presence of cameras didn’t change the way the House of Commons operates.

For one thing, it completely changes the audience. Previously, MPs were overwhelmingly addressing their colleagues in the chamber itself, albeit with a view to the visitors and journalists in the public gallery. Today, any speech can not only be watched live, but clipped and recycled on social media. This very obviously changes any MP’s motivations when speechmaking, greatly increasing the temptation to grandstand for the benefit of one’s activists or social media following.

This in turn surely helps to explain why MPs were so willing to go along with various Blair-era reforms which have hugely truncated their role – especially programme motions, which fix the amount of parliamentary time allocated to a particular bill.

Earlier generations of parliamentarians would surely have thought it absurd, even outrageous, that elected representatives might miss out on the opportunity to even speak on an especially high-profile piece of legislation, as now often happens, or that even those that do might be restricted to interventions of just two or three minutes.

But whilst a two-minute speech is unlikely to be a useful contribution to a debate (and indeed, Commons proceedings on popular bills increasingly bear only a residual resemblance to an actual debate), it is the perfect length for a social media clip – and will also show up just the same as a substantive contribution on TheyWorkForYou, another pro-transparency measure which creates sharp perverse incentives.

We obviously don’t have video evidence of this changing culture. But readers looking for a flavour of it can compare modern Hansard transcripts from those that predate the post-Robin Cook, post-cameras Commons. The difference is night and day.

One can conclude, of course, that all of this is worth it, and that the principle of transparency – or a supposed ‘right’ to it, which Goodall asserts – trumps any such considerations. Personally, I think that a right to know what goes on in Parliament is served perfectly well by making Hansard public. There is no right to a televisual spectacle, however much such a surfeit of material might suit journalists. 

Or one could argue that breadth of access is the issue, as relatively few people will be able to physically attend Parliament for a given debate. But that could be addressed by a compromise which permits the live broadcast of proceedings in Parliament, but forbids clipping and re-broadcast.

But unless journalists have had enough of experts, the weight of social scientific evidence means it is quite another thing to argue that letting the cameras in doesn’t affect the institution and its workings. And once that point is conceded, it should be very obvious that the voyeuristic demands of members of the public should weigh next to nothing against the duty of the courts to perform their function properly. The minds of judges, juries, and counsel should be focused on the business at hand – not their ratings with an invisible but omnipresent audience.

If we really want more transparent justice, we could always do as other jurisdictions do and require juries to publish explanations for their decisions. That would be a real, substantive increase in our understanding of how trials play out. But that would enhance scrutiny but not spectacle, and thus better serve the interests of justice than journalism.

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Henry Hill is Deputy Editor of ConservativeHome.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.