ukcivilservant

Articles about the UK Civil Service and Regulation

The Dominic Cummings affair has much more in common with Hillsborough and Grenfell Tower than with politics.

The Dominic Cummings affair has much more in common with Hillsborough and Grenfell Tower than with politics.  It is about loss of trust in those in power. And it has as much more to do with Ministers’ response to mistakes than with the mistakes themselves. 

We have an unwritten ‘psychological contract’ with those in power. We expect that the police will treat us with respect.  We expect that the government will ensure access to impartial justice.  And we expect governments to do everything in their power to protect us from novel viruses – including ensuring that key carers will have enough PPE.

But mistakes will be made, and things can go badly wrong.  Crucially, those in positions of power then have a responsibility to restore the psychological contract, even if they are not personally responsible for its failure.

And yet many leaders’ response is sadly lacking.  Examples include:

  • Theresa May visited Grenfell Tower the day after the fire but failed to meet Grenfell survivors or bereaved;
  • The Chief Executive of the company that managed Grenfell, whilst watching the tower burn, wrote a memo to colleagues saying “We need to pull some of this together pretty fast in terms of health and safety compliance”
  • Health Minister Matt Hancock’s warned the NHS to not overuse PPE
  • Prime Minister Johnson’s has failed to acknowledge, and apologise for, Dominic Cummings’ failure to comply with the COVID-19 lockdown.

By contrast, leaders who understand the psychological contract respond to crises in a way that builds trust. The outstanding example is New Zealand Prime Minister Jacinda Ardern, both in her response to COVID-19 and to the 2019 terrorist attack.  Chancellor Rishi Sunak is also showing both empathy and a determination to do everything he can to mitigate the economic effects of the virus

Restoring the psychological contract with citizens requires:

  • swift retribution,
  • swift correction of issues,
  • appropriately borne consequences, and
  • transparency

Let’s apply these tests to the government’s responses to COVID-19 and Grenfell Tower.

Swift Retribution

The public expect there to be consequences when those in authority appear to fail.  This is not about legal fault.  It is targeted at individuals who held positions of power at the time of the event, or at the time of decisions that led to it.

The formal processes for this (such as Public Inquiries and civil and criminal investigations) take too long to play out.  It can be hard to establish negligence and in the absence of such proof it can be difficult verging on impossible to sack senior decision makers.  In addition, whole institutions, and not least governments, will strongly resist the suggestion that fault could be found within their senior teams.  That is why resignation as a matter of honour sends such an important signal that those in power both care and are willing to accept consequences.

The Brexit debates demonstrated that not all politicians have lost the ability to resign as a matter of principle.  But no-one has resigned following, nor even expressed contrition for, the 72 deaths at Grenfell Tower. And Dominic Cummings’ failure to resign following his breaches of lockdown seems quite inexplicable.

Swift Correction

To be fair, it does seem that the government is trying hard to correct its failings over COVID-19, even if it won’t admit them – see further below.  But its failure even to criticise Mr Cummings’ behaviour taints all its positive efforts. Given that the police consider that he had committed an offence, Attorney General Suella Braverman’s support for Mr Cummings (“Protecting one’s family is what any good parent does”) is particularly shocking.

Grenfell revealed systemic issues with the UK’s building stock.  Hundreds of high-rise residential buildings have ACM cladding similar to that on Grenfell Tower. Thousands are clad in other flammable facades.  Post-Grenfell fire safety inspections revealed systemic issues such as non-compliant fire doors and missing or incorrectly fitted cavity barriers which can compromise compartmentation. And yet, as of March 2020, 68% of buildings had not completed remediation, including 15% where work had not even started.

Failing promptly to make buildings safe is a gross violation of the psychological contract that citizens should be safe in their homes. For those that watched Grenfell burn or lost loved ones, it is unforgiveable.

Appropriately borne consequences

The issue of correction is linked to that of where consequences are borne.  Rather like resignation (see above) this is not a legal question; it’s a moral one.

This cannot be more tragically evidenced than the deaths of those at the front line of care, and care home residents, as a consequence of government failure to stock PPE in preparation for a pandemic.  Whatever the reasons for this failure, and irrespective of legal liability, the psychological contract requires that the government’s response should be generous compensation for those injured, and the avoidance of any form of further cost.  The Prime Minister’s initial determination to impose the NHS surcharge on foreign nurses showed that he and his colleagues were quite oblivious to their responsibilities under the psychological contract with those they aspire to lead.

In the wake of Grenfell, it is estimated that 500,000 people are caught in flats that are unsellable while work is carried out to identify cladding and other fire safety issues. The government could have worked with industry to create a fund for making buildings safe.  They could have diverted money away from litigation, and toward ensuring people are safe in their homes.  They did neither.

Transparency

Attempts to spin the narrative, and refusal to admit that mistakes were made, will inflate already heightened emotions and increase distrust.

The governments’ reporting of COVID19 deaths is a good example.  There was little transparency when initial figures included only those who died in hospital after testing positive, and when deaths in care homes or in the community were not included.  Likewise, the lack of transparency in what counted as a ‘test’ have done little to build trust, nor have numerous missed deadlines.

Whilst bold promises may make sense, ungrounded promises damage trust.  This was clearly illustrated by Theresa May’s promise that those left homeless by Grenfell would be re-housed in 3 weeks.  Nearly 3 years after the fire not everyone has been re-housed.

And something is terribly wrong when the Prime Minister jokes that he is no longer allowed to commit to actions to save lives during the current pandemic.

The Bereaved Will Not Forget

It is noticeable that the current anger with the government is most strongly expressed by those who have self-isolated from their families, have seen relatives die in care homes, and who have been unable to attend funerals. History tells us that they will continue to call for justice.   Grenfell United, Doreen Lawrence and the Hillsborough families[1] are good examples. The pain and anger of the bereaved is inconsolable.  People do not simply ‘move on.  Mr Johnson’s intransigence will haunt him for years to come.

 

Martin Stanley &  Gill Kernick

Notes

This article draws heavily on Gill Kernick’s contribution to the recent Bennett Institute report:- Policy Lessons from Catastrophic Events. Gill Has also blogged about Dominic Cummings and the psychological contract.  You can read her blog here.

Psychological contracts are typically found in employment relationships, and such contracts can be more influential than formal rules.[2]

Martin Stanley is the editor of Understanding Government .

Gill Kernick works with senior executives in some of the worlds’ largest organisations to develop the leadership and organisational capability to create safe cultures.

[1] See ‘The patronising disposition of Unaccountable Power: A report to ensure the pain and suffering of the Hillsborough families is not repeated’.

[2] https://www.cipd.co.uk/knowledge/fundamentals/relations/employees/psychological-factsheet

Ro and Herd Immunity are Intimately Connected

I have only just understood the intimate connection between R0 and herd immunity.  I offer this explanation to others who may have shared my ignorance.

If R0 is 10, every infected person typically passes enough virus on to 10 other contacts to make them ill – unless of course they are already vaccinated or otherwise immune

But if over 90% of the population is already immune, every infected person will still pass the virus on to 10 others, but less than 10% – that is less than 1 of them – will now also become ill, and the illness will die out.  The perceived R, in other words, has become less than 1.

Measles is highly infectious.  Its R0 is around 15 which means that the illness will spread through a population if more than 1/15th of the population lacks immunity.  This is why medics want to see around  93-94% of the population vaccinated.

COVID-19 R0 appears to be around 3.  If so the illness will spread quickly if more than 1/3rd of the population lacks immunity.  But herd immunity might be achieved at around two-thirds (67%)  of the population.

Further information about epidemic theory is here.

 

Martin Stanley

Editor Understanding Government websites

COVID-19 International Comparisons

Although it is far too soon to evaluate the long-term effectiveness of the UK’s response to the SARS-CoV-2 virus, it is of course sensible to monitor what is happening in similar countries to our own.  This can be done in many different ways but here is one interesting chart which shows the rate at which various countries have reduced their daily death toll following their initial peak.  There are as yet no clear signs of any second waves, though some countries’ death rates seem not be falling at the moment – including the UK.

Screenshot 2020-06-02 at 21.29.01

Here is a reminder that the government’s daily report does not include all deaths.

Screenshot 2020-06-02 at 21.28.52

NOTES

These charts were updated on Tuesday 2 June.  This blog will be updated again late on Tuesday 9 June.

The UK Data

There are two different UK lines in the second charts:

  • The UK government publishes daily counts of deaths in hospitals, care homes etc.
  • The Office for National Statistics publishes estimates of ‘excess deaths’:  the number of people who have died compared with the number who normally die at the same time of year.

The Charts

  • In order to aid comparisons, the first chart adjusts each country’s figures as though their population were the same as that of the UK.
  • The daily death rates are averaged over seven days so as to eliminate, as far as possible, sometimes significant daily fluctuations.
  • It is important to note that the trends are much more important than the detailed figures for the reasons summarised here.

 

Martin Stanley

Editor Understanding Government
Twitter @ukcivilservant

GRENFELL TOWER INQUIRY – Phase 2 Opening Statements

It must have been heart-rending to listen to the lawyers representing the organisations responsible for the Grenfell Tower refurbishment.  Astonishingly – or maybe not? – only one of them accepted that their client had made any mistakes. The BBC’s inquiry podcast recounted how representatives for the bereaved survivors and residents reacted as follows:-

Sam Stein:

  • “The companies responsible killed those 72 people as sure as if they’d taken careful aim with a gun and pulled the trigger.
  • Those companies responsible killed when they criminally failed to consider the safety of others.
  • They killed when they promoted their unsuitable dangerous products in the pursuit of money and a place within the market.
  • And they killed when they entirely ignored their ultimate clients, the people of the Grenfell Tower.
  • When hearing the evidence about these companies and when watching them wriggle on the hook during these hearings, let us not forget who they killed and the bereaved who have been left behind.”

Stephanie Barwise:

  • “The behaviours of arrogance and complacency which caused the disaster at Grenfell still rage unchecked among many of the core participants.” …
  • “They either did not think about compliance at all or many of those who did address it seemed to have understood what was required and ignored it.
  • This is one of the more troubling emerging themes. That many of the professionals and contractors wilfully failed to comply with the regulations or statutory guidance despite being fully aware of and understanding the guidance”.

What about the local council?  They were the only group clearly to recognise that were responsible for failings in their actions:  The BBC reported as follows:

… So, finally, we come to the people who were meant to check the design met building regulations. Building control was a department within the local council, the Royal Borough of Kensington and Chelsea. It represents the last opportunity to spot the errors of a design team and stop the unsafe design being built.

RBKC’s legal representative read from a long list of Building Control’s failures.

  • “Building Control did not have a formal procedure for tracking the progress of applications for building control approval.
    • There was no requirement for it to have such a procedure, but the Council accepts that building control should have had one, and that had one been in place it would have reduced the likelihood of aspects of the application or the building control approval process being overlooked.
  • Building Control failed to issue a decision notice following receipt of the full plan’s application.
  • Building Control failed to ask for comprehensive details of the cladding system including the crown.
  • The last Exova fire safety strategy received by Building Control was Issue 3 dated November 2013. Building Control failed to request an up to date version of this document.
  • Building Control failed to identify that the insulation materials used in the cladding system were not of limited combustibility and therefore did not satisfy the requirements of Approved Document B.
  • Building Control failed to recognise that insufficient or no cavity barriers to seal the cavities and openings in the walls, including around the windows, had been indicated on the plans submitted to it.
  • Building Control issued a completion certificate on the 7th of July 2016. It should not have done so.
  • The council apologises unreservedly for these failings.”

RKBC also pointed out that the same cladding material used on Grenfell has been found on hundreds of buildings across the country. They argue this last line of defence has not just failed in their borough.

“This is not just a local problem this is a national problem and it will require national solutions.”

Martin Stanley
Editor – Understanding Regulation
and – The Grenfell Tower Fire

COVID-19 Country Comparisons – Background

Introduction

There are many different sets of COVID-19 statistics, all of which illuminate the progress of the pandemic in different ways.  My charts, in my other blog, record the effectiveness of various nations’ lockdowns and other attempts to limit their cumulative death rate.  They focus on death counts, which in turn reflect infection rates around three weeks ago.  The data therefore does not directly inform current decision-making.  

The data in all charts is where appropriate normalised as though every country has the same population as the UK.

Background

COVID-19 is an often-fatal disease caused by the SARS-CoV-2 virus, one of many coronavirus.

In the absence of an effective medicine or vaccine, and assuming that lock-downs, shielding and border closures cannot last indefinitely, most countries with similar health services and similar demographics would expect to experience similar numbers of fatalities in proportion to their populations.  Those proportions cannot yet be estimated but could exceed 0.5% – which would suggest UK fatalities of 300,000 or more.

Note in particular the reference to ‘similar demographics’.  Countries vary greatly in the age of their populations, with some having much higher elderly populations than others.  Italy’s population is elderly (it has a median age of 47), while Ireland’s is much younger (a median age of 37) for instance. This increases the apparent death rate, but it also interacts with the ‘similar health care’ constraint.  This is because, in countries with excellent health care, Covid-19 will be helping to kill those who would have died, in other countries, at a much younger age.

The relative healthiness of a population is relevant in other ways.  It is possible that countries such as the USA, with much obesity, will suffer more than other countries, other things being equal.

In the shorter term, almost all governments are now using a variety of mitigation measures to slow the progress of the disease and thus buy time for treatments and vaccines to be developed, as well as ensure that their health services are not overwhelmed.  These measures include

  • border controls,
  • test & trace,
  • self-isolation,
  • shielding,
  • social distancing and
  • various varieties of lockdown. 

The effectiveness of each of these measures varies from country to country according to various factors including the speed with which they were introduced, the openness of the country to international  travel, the density of the population and so on.   Looking forward, much will depend on the speed and extent to which social distancing measures are relaxed, and the availability of medicines and vaccines.

Note, however, that lockdowns are designed to cut infection rates and so will, if successful, cause a decline from ‘a peak’.  The Prime Minister’s claim that “it was completely right to make our lockdown coincide with the peak of the epidemic ” was therefore nonsensical.

Notes

Most countries record deaths in a similar way and to similar timescales.  International death rate comparisons are therefore more helpful than, say, those of infection rates or hospital admissions.  But significant differences remain.  The UK, for instance, only recently began daily reports of deaths outside hospitals as there were problems in reporting these consistently.  Some countries include deaths where COVID-19 is probably a factor, but has not been tested for.  Others do not.  The trends are therefore a more important than the reported figures.

There are also lags, in most countries, between deaths happening and being recorded.  In the UK for instance, the announcement made every afternoon refers to deaths up to 1700 the previous day.  So the 26 April UK figure shown in my charts, for instance, is actually a 25 April figure, and this was not reported in this blog until 27 April.  Much the same applies to most other countries.

And it takes around two weeks to prepare more detailed and accurate statistics, such as those reported by the Office of National Statistics in the UK.

There are inconsistencies in the figures reported from the USA, so I try to use CDC figures, excluding ‘probables’.  These are lower than some other figures.

It is also the case that an unknown proportion of deaths attributed to COVID-19 would have happened around the same time, or shortly afterwards, because of the presence of other serious illnesses.

The data in the blog is drawn from this app and this one.  The FT publishes daily detailed analyses – and not behind a paywall

Lockdown dates are a little subjective but, as far as I can tell, fairly complete first phase lockdowns occurred as follows  Italy 9 March,  Spain 14 March,  Netherlands & Denmark 15 March,  Germany 16 March,  France & Ireland 17 March,  UK 24 March.

Comments and corrections are very welcome.

 

Martin Stanley

Editor Understanding Government
Twitter @ukcivilservant

Civil Service Reform – Reinvigorate, not Reinvent

Here is an extract from a 2009 speech by Australian PM Kevin Rudd.  (Emphasis added)

Note the commitment to the strengths of the Australian Public Service, modelled on the Westminster Tradition, coupled with a determination to improve upon that model.

The full text is here.

>>>>>>>>>>>>>>>>>>>>>>>>>

The Government I lead came to office pledging to reinvigorate the Westminster tradition of a merit-based, independent public service committed to the highest-quality policy making.

We chose the word reinvigorate carefully.

We did not say “reinvent”, because the APS is a strong, professional public service that has served successive governments very well.

The professionalism of the public service has been evident since the first day after the 2007 election, when I received the first handover briefings from Dr Peter Shergold and other senior departmental secretaries.  The quality of that briefing, and the work of public servants to ensure a seamless transition to government in the following weeks and months, was testimony not only to the competence of the public service but to the value it placed on continuity.

And I note that my predecessor, Mr Howard, made the same point when delivering the Garran Oration in 1997, and I quote:

“That power can be transferred in this calm, understated way is a supreme asset.”

This is truly one of the most remarkable features of the Westminster tradition, and it is one we should not merely take it for granted.

Its success is in part the result of the sweeping reforms to the public service a century and a half ago, in another era and in another place – through the Northcote-Trevelyan report in Britain in 1854.  That report not only created the modern British civil service but laid the foundations of the ethos of the APS almost half a century later.

At the time, Britain was undergoing major economic changes in the wake of industrialisation.  The Empire was expanding, people were on the move and Europe was alive with revolutionary foment.  And the British civil service was riven with patronage, incompetence and corruption.

The recommendations of the Northcote-Trevelyan report – a response to crisis in its time – helped create a civil service that was independent, impartial, recruited by competitive examination and promoted on merit.

In time, its impact stretched to the Australian colonies, where both Victoria and Queensland sought to limit political patronage by introducing competitive entry exams into their public services.  And it profoundly shaped the culture of the APS after its formation in 1901.

But Australia never simply copied the British model.

The APS never recreated the class structure in the way the British civil service did, with Sir Humphrey’s Oxbridge-educated administrator class unfailingly at the top.

Instead, some of Australia’s leading public servants have been the children of builders, boot makers, railway station masters and refugees, or they left school at 15 to be telegraph messengers and bank clerks.

What counted was not their modest beginnings but their fitness for the job.

Take Sir Roland Wilson, our longest serving Treasury Secretary and the son of a west coast Tasmanian builder.  Or another former Treasury chief, Sir Richard Randall, who worked for eight years as a wool classer.  Or another, Ted Evans, who worked for 10 years of his early life as a PMG linesman.  And given that his replacement, current Treasury Secretary Ken Henry, is the son of a New South Wales timber worker, it is clear that the APS principle of promoting merit over privilege is alive and well.

And there is a second lesson from history that particularly resonates today.

As I said before, the periods of most active public service reform have been periods of rapid change and even upheaval in the wider society, times when change has forced the public service to develop new structures and skills, and find talented new people.

In the 1940s, the all-out war effort, followed by the huge post-war nation-building program, created a generational change in the APS. For the first time there was an influx of brilliant outsiders to manage great wartime enterprises, to staff the departments of Treasury and Postwar Reconstruction and to establish the new foreign service.

At the time, the public service was a closed shop – the idea of outsiders joining was intensely controversial. So much so that when the economist, Roland Wilson – with doctorates from Oxford and Chicago – was recruited to the Bureau of Census and Statistics as the first government economics adviser in 1932, the staff of the Bureau went on strike!

The new public servants laid the foundations for decades of post-war prosperity and better living standards for Australians. They were among the first in the world to see and seize the opportunities of Keynesian economics and an active economic and social role for the post-war democratic state.

They managed the government’s commitment to full employment and the development of a modern social security system, to a large immigration program, to enormous infrastructure projects such as the Snowy Mountains scheme, and to the beginnings of our national university system.

In other words, they were nation-builders – with their own professional public service tradition – with a sense that the words “prosper the Commonwealth” were etched deep in their intellect, their imagination and their sense of duty to the nation.

 

Martin Stanley

Editor  Understanding Government

Covid-19 – Planning for Crises

Matt Hancock’s signature at 0650 on Monday morning gave the police and health officials the power to detain and question anyone suspected of carrying the Covid-19 coronavirus.

This blog explains how Health Department, Public Health England and NHS officials will have prepared for the current crisis.

Source material includes the Understanding the Civil Service web page on Planning for Crises plus my reading of the relevant health protection legislation.  I would be very pleased to hear from anyone who can help me correct or add to this material.

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

Civil Servants who may need to help Ministers respond to crises should follow this advice:

 1.  Ask whether you have the necessary powers

Make sure you have the statutory powers – and discretionary powers – necessary to respond to any plausible crisis.

  • Legislation will provide strong guidance but – as an American Judge opined – “The constitution is not a suicide pact”.
  • I understand that the UK authorities did not initially have the powers necessary to resolve the run on Northern Rock.

Such powers should be subject to appropriate political oversight.

  • Internal response planning discussions, including with Ministers, should not be disclosed unless/until their existence will not cause damage.

HMG can if necessary (and with Parliamentary approval) legislate very quickly.  It also has powers, in the Civil Contingencies Act and other legislation, to act ahead of Parliamentary approval.

Internationally, the UN Security Council can act including by giving strong powers to an international authority under Chapter 7 of the UN Treaty.

  Covid-19

The necessary legislation appears to have been in place and was triggered as soon as it appeared that someone might refuse to remain in quarantine.

  • The key legislation is in Part 2A of The Public Health (Control of Disease) Act 1984.
  • The Health Protection (Coronavirus) Regulations 2020 were made under the above Act and signed by the Health Secretary at 0650 on Monday 10 February 2020.
  • In combination, this legislation confers very great powers on doctors, the police, local authorities and magistrates.
  • In particular it empowers a constable to use reasonable force to detain anyone whom they suspect might be infected.
  • And the Secretary of State or a registered public health consultant may require screening and isolation of suspected carriers, and can require them to answer questions, provide documents etc.
  • Magistrates may require seizure, disinfection quarantining etc. of ‘things’ and premises.

Note, though, this UK Human Rights Blog (and pun):  Corona-vires: Has the Government exceeded its powers?

2.  Plan and Prepare for Possible Crises

Officials should practice (‘game’) responding to crises.  They should:-

  • assume that the crisis will hit when your organisation is in some ways unprepared, for reasons outside its control.
  • assume in particular that key team members and decision makers will not be available.
  • prepare public responses to foreseeable damage caused by your organisation.
  • not let lawyer-driven responses – seeking to downplay legal liability – cause large reputational damage.

No plan will survive contact with reality but if there is no plan then reality will take over with disastrous consequences.

Get your most sceptical staff to check, from time to time, that the detail of the crisis management plan is up-to-date, sensible and appropriate.

  • In the US, following Hurricane Katrina, mandatory evacuation led to all vehicles leaving New Orleans well in advance of the plan’s deadline.  Unfortunately the plan made no mention of the need to evacuate those residents who did not have vehicles within a similar timescale.

In the UK, there is some concern that the effectiveness of the response to any energy supply crisis would depend too much on the cooperation of the private sector.

3.  Plan your Communications with the Public

The senior person (ideally only one person) who takes responsibility for telling the public what is happening should aim to demonstrate calmness, confidence, trustworthiness and competence.

  • 90% of the information reaching the crisis management team will initially be wrong, so don’t go into detail.
  • The media are an important intermediary in communicating with the public in times of emergency. They need to be respected.
  • A (not otherwise well known) expert is often best, such as the Chief Veterinary or Medical Officer.
  • In general, it is probably best if the spokesperson is not a politician, given public distrust of that species, and the possibility that they will not listen to communications advice.

An example of bad communication was when – at a time of possible fuel shortages – a UK politician encouraging the public to horde petrol in jerry cans kept in garages.  This is because hording should not be encouraged in these circumstances, not everyone has a garage, and petrol is highly flammable.

4.  Plan the Management of the Crisis

One person should be given clear cross-Whitehall responsibility for leading the response to the crisis.

That person should confine him/herself to taking strategic decisions.  Tactical decision making should be left to those on the ground.

Responses should as far as possible consider unintended consequences.

Measures that might be seem attractive so as to ensure public safety/security do not necessarily have priority over consequences including damage to human rights …

…  nor do they always trump economic damage.

  • The US emergency response to security threats required all borders to be closed.  This severely damaged companies operating supply chains over the Canadian border.

Background

Most of the above points were made at a 2019 Centre for the Analysis of Risk and Regulation (LSE) seminar about crisis-handling and emergencies.  Seminar participants made the following points by way of background to the discussion:

There was quite a strong feeling that we are living through a difficult and dangerous period:-

  • There is undeclared asymmetric warfare. In other words, the strategies and/or o tactics of the respective combatants are significantly different from each other).
  • Cyber warfare is particularly problematic in what is becoming a post-factual age.
  • There are disturbing domestic political developments in many countries, fuelled in part by distrust of elites and governments.
  • International bodies are relatively weak.
  • We in the UK are neglecting and under-resourcing our public health, justice etc. systems.

Further Reading

More detailed advice on handling risks to health and safety, including communications advice, may be found here.

Martin Stanley  –  Editor:
Understanding Government
Understanding the UK Civil Service
Understanding Policy Making
Understanding Regulation 

Twitter:-  @ukcivilservant

Internet Harms – Regulator or Censor?

The December 2019 Queen’s Speech promised ‘legislation to improve internet safety’ building on the Internet Harms White Paper published earlier in 2019.  Carnegie UK almost simultaneously published a draft Online Harm Reduction Bill and explanatory notes which may in many respects be quite similar to the government’s eventual proposals.  And Lord McNally will next week introduce a short paving Bill which would, if enacted, require Ofcom to prepare for the introduction of a statutory duty of care.

So legislation is looking increasingly likely, accompanied by a lively debate about what harms are to be caught by the legislation, and how it is to be enforced.  My own view is that there should be a dedicated regulator, rather than ask Ofcom to take on yet more demanding duties.  But the broad approach – duty of care regulation, not censorship – seems to be becoming clear.

As it happens, Cambridge’s Bennett Institute for Public Policy has recently published an article written by me which drew heavily on the work of the Carnegie UK Trust and on conversations with Lorna Woods, Professor of Internet Law at the University of Essex.  I reproduce it below, with some additional material, in order to encourage wider understanding of the issues and of Carnegie’s proposals.

I will report further key developments via my @ukcivilservant Twitter feed and on the Understanding Regulation website – specifically the Online Safety & Harm web page.

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> 

Hate speech, harassment, false accusations and baseless conspiracies cause huge harm.  But free speech is a vitally important right in any democracy.

How should this tension be resolved when addressing the challenges presented by big social media platforms? The key is to recognise that the harm is amplified or otherwise by its context.  An otherwise provocative argument, or a powerful but distressing image, can do huge harm if taken out of context  and amplified by thoughtless algorithms or cruel attention seeking.

It would be quite wrong – and probably totally impractical – for a regulator to act as a censor and be required to decide whether particular items should be posted on social media platforms.

Instead, the regulator should be tasked with ensuring that the platforms’ services and processes are, so far as reasonably practical, structured and designed so as to reduce the risk of harm to users.

Platforms may, for instance, be expected to ask themselves:

  • Have we considered the risks associated with the service we provide?
  • Are we aware of the ways users are engaging with our systems?
  • Are we responding appropriately and proportionately to the unintended (and sometimes intended) consequences arising out of the use of our systems?
  • Are we following best practice when deploying tools etc. intended to reduce harm?

Platforms should not be forbidden from making available material that some would find objectionable  – as long as it is published in such a way as to reduce the damage to those who might be harmed.

It should be for the platforms – not the regulator – to decide how best to minimise the harms that might result from their services, and to demonstrate that they have done so.  They have the necessary technical knowledge and resources, and they are best placed to understand the needs and vulnerabilities of their users[1].  They also need to decide how best to fund their services, including through clicks/advertising, whilst minimising resultant harms.  And a number of tools and approaches might be brought to bear, including:

  • Adjusting the impact of recommender algorithms, targeted advertising and clickbait
  • ‘Age gates’ – even if imperfect
  • Transparency, including about complaints and the platform’s responses to those complaints
  • Giving users access to blocking tools
  • Giving users access to correction tools
  • Aggressive content moderation[2]

So how might it work in practice?  There are at least five separate sets of issues.

1 Platforms are already prohibited from carrying obviously illegal content – adverts for drugs and the like. So no great change is needed here, although the regulator would need to be assured that the platform had taken steps to reduce illegal content as far as reasonably possible.

2 – Platforms would become responsible, so far as possible, for restricting access to particularly dangerous or sensitive content. This might include:

  • Inflammatory and false material of the sort that inflamed the violence against the Rohingyas in Myanmar
  • Live streaming of crimes such as terrorist activity
  • Breaches of user privacy, such as allowing access to genetic or financial data or other information people want to remain private, and
  • Scams, such as adverts for dangerously unregulated financial and other services, and such as rip-off websites that pretend to be official government sites but then overcharge for a service that could otherwise be accessed for free or more cheaply.

3 – There would be then be a number of areas where discussion would be permitted amongst those interested in the subject, but proselytising and evangelising might be prohibited.  Such specified areas might include blasphemy targeted at those with certain religious faiths, or anti-abortion material targeted at newly pregnant women, or anti-vax messaging[3] – but such areas would need to be defined by politicians, not the regulator, aiming to balance freedom of speech against:

  • individuals’ right to choose not to hear certain messages, and
  • society’s need to safeguard public or individuals’ health and safety.

The web would therefore retain dark and interesting corners for those interested in going into them, but platforms would be responsible for ensuring that such material was seen only by those who wished to see it.

4 – Platforms would need to consider the extent to which their services were accessed by vulnerable users and children, and take any necessary steps to ensure that those users were not easily able to access material that would be harmful to them – or indeed driven towards such material via the site’s algorithms.  Popular public services such as Facebook, Snapchat and Instagram would in particular need to ensure that they offer a safe public place for families. Instagram has already made some steps in this direction by prohibiting graphic images of self-harm.  And Pinterest has added a way to reach a suicide prevention helpline in just one tap from a search or a Pinner’s board.

5 – Political Campaigns:- It has become all too clear that the misuse of social media can do great harm during election campaigns. Social media manipulation campaigns have taken place in 70 countries, up from 28 countries in 2017. Facebook and Twitter have attributed foreign influence operations to seven countries (China, India, Iran, Pakistan, Russia, Saudi Arabia, and Venezuela) who have used these platforms to influence global audiences[4].

But a requirement that platforms should ban all political messaging could also do great harm.  Where does politics end and campaigning begin – for action to combat climate change for instance?  Disinformation (‘fake news’) is hardly a new phenomenon in politics and elsewhere[5]. What has changed in recent years has been the drastically increased levels of untrue or twisted information online which is directly accessible to billions of users[6].

Twitter has decided not to carry paid-for political advertising and Google has made a similar announcement.[7]  But such transparent and clearly owned communication is not the main problem. Indeed, shouldn’t a democracy welcome such campaigning in all available media?  It would also seem dangerous to expect sites to censor polite debates about climate change, for instance, or abortion – as long they as they use facts which were verifiable.

But there are problems with micro-targeting.  It is surely important that we know, in a political debate, what is being told to someone else as well as being able to rely on the information with which we are provided.

This in turn leads to a separate concern that platforms can currently be paid to tell absolute lies – that a politician has done or said something that they have not, for instance.   This seems wrong – but who is to judge the boundary during a fast-moving and highly charged political battle?  Some use the word ‘lie’ to describe everything someone might gently take issue with. One commentator noted that:

“If I look down the barrel of a camera and say “A year has 380 days in it,” I am clearly lying, because everyone knows it doesn’t. If the Prime Minister in an interview says “We have the lowest Corporation Tax rate in Europe,” is that a lie, a mistake, an error or an error by omission? The truth is that there are four countries in Europe with a lower Corporation Tax rate than the UK. If the Prime Minister didn’t know that, he probably ought to have. He might have meant to say “among comparable countries in Europe”. He might have meant to say “one of the lowest rates…” To say with 100% certainty that he deliberately intended to tell an untruth is difficult to sustain.

In a similar vein, Adam Price, the Plaid Cymru leader wants to introduce a law to make it a criminal offence for a politician to lie. Is he really suggesting that a politician should be sent to prison, or fined, if he or she makes a campaign promise which a court finds that they couldn’t possibly have delivered on? It’s preposterous. Enough people are put off going into politics already, without a silly measure like this.”

One possibility might be for the regulator at least to require digital companies to stop accepting advertisements which spread disinformation and also make sure that this content is downgraded by their algorithms. It could also require a wider network of fact-checkers to be employed by the platforms, and require them to allow independent researchers access to private company data of past disinformation attempts in order to understand how they beat company’s algorithms.

More generally ….

Some platforms, though not all, will need to implement an age/ID verification service if they are to allow responsible adults access to their services, whilst denying access to certain services to particularly vulnerable users.  This service should be entirely independent of the platforms, and act as an agent of their users.

Nothing in this approach creates a tortious duty – i.e. a duty that can lead to those who have been harmed claiming damages in court.

Could the platforms not be trusted to self-regulate, perhaps under pressure from advertisers?  It would appear not.  The tech platforms have made more than 125 announcements describing how, through self-regulation, they will solve the manipulation of their platforms by bad actors but there is as yet no clear sign that the algorithmic changes made by platforms have significantly altered digital marketing strategies[8].

The regulator should be responsible for deciding whether platforms are taking reasonable and proportionate steps to reduce harm to its users.  Legislators might provide the regulator with a range of enforcement mechanisms, which might include licensing, enforcement orders, fines, directors’ liability, and directors’ disqualification.

The most important point though is that regulation is feasible and practical. There is no need to be resigned to the harms evident on social media platforms, nor to go to the other extreme and insist on the unpalatable step of requiring censorship. Neither is acceptable in a democracy, and neither is inevitable as long as regulatory measures like those suggested here are implemented.

 

Martin Stanley
Editor – the Understanding Government and Understanding Regulation websites.
January 2020

Footnotes

[1] (See for instance Facebook’s impact assessment of their presence in Myanmar.)

[2] Facebook, for instance, ensures that some links and words immediately trigger an algorithm that prevents the item from being posted, but most moderation takes place only after problematic content is reported by users.  This is often far too late.

[3] The National Audit Office has reported that there are several potential causes for the decline in uptake of pre-school vaccinations, but there is only limited evidence of any major impact on vaccination uptake rates from anti-vaccination messages.  So limiting ant-vax messaguing may be an over-reaction.

[4] The Global Disinformation Order,  Samantha Bradshaw and Philip N. Howard

[5] Oliver Cromwell was greatly influenced by untrue stories that the 1641 Irish Rising had been accompanied by a general massacre of English men women and children, some dying out of starvation and exposure as they tried to make their way half naked towards the English-help enclaves such as Dublin.  This encouraged his harsh treatment of the Irish some years later, for which he is well remembered to the present day.

[6] European Parliament elections: The Disinformation Challenge, Dimitar Lilkov

[7] Facebook’s policy seems to be that they prohibit commercial advertisements that contain lies certified as such by authorised fact-checkers.  But they don’t apply this policy to political adverts.

[8] The market of disinformation, Stacie Hoffmann, Emily Taylor & Samantha Bradshaw October 2019

Preparing for a New Government & Meeting New Ministers

I prepared these notes when briefing colleagues before a previous General Election.  I hope they may be of some interest  – and of some use – in 2019.

It is an exciting time … and an opportunity to make a big difference by helping a new set of Minsters settle in, and start achieving their objectives.  Enjoy the challenge!

What do you want to achieve in the first few days?

  • A good relationship with new Ministers
    • Mutual respect
    • You need to be seen as non-political but committed to achieving their objectives
    • Understand individual Ministers’ characters, styles, needs
    • They will be a mixture of excited, knackered, terrified, suspicious.
  • Get to understand Ministers’ long term aims
  • Well-briefed, knowledgeable Ministers
  • Ministers who [are beginning to] understand how to work within government, and in particular with civil servants
    • Particularly important in smaller departments in view of need to ‘punch above weight’ in influencing other departments’ policies.
    • Need to avoid ‘departmentalitis’

Personal chemistry very important.

  • First impressions very important
  • Transactional analysis
    • Aim for mutual respect if Minsters signal they want to work effectively with officials
  • Initial Ministerial meetings need to be with impressive staff. Do not field inexperienced, nervous or loquacious colleagues.

Passion is good – but it needs to be directed towards implementing new policies. It is important not to appear negative when new Ministers suggest change, and important to avoid appearing to be committed to predecessors’ policies.

  • Avoid “this department’s policies”
  • Beware of appearing too well connected with pressure groups – and Europeans!
  • Make sure your assertions are evidence-based – particularly when repeating assumptions of previous Ministers
  • Discontinue use of previous Minsters’ language (e.g. Tories do not like New Labour’s ‘stakeholders’)

Offer frequent briefings to staff colleagues

  • Oral briefings best
  • Emails good as long as carefully drafted – positive tone
  • Pass information around between teams – inc. to/from other departments.
  • Keep close to Private Office and SpAds

 Be mentally prepared for turmoil.

If it happens then react positively.  Do not show you are upset.  The system will support you.

Enjoy being part of exciting change.

 

Links to other useful advice:-

Working with Ministers
Giving Advice to Ministers
Speaking Truth to Power

Martin Stanley
Editor – Understanding Government

Change often fails miserably — Here is how to succeed

This blog was first published by Apolitical.co .   It was written by Martin Stanley who edits the Understanding Government and Understanding Policy Making websites, and is a former UK civil servant. For more like this, see apolitical’s government innovation newsfeed. 

Change programs are like games of Jenga  —
they can quickly come crashing down

Does this sound familiar? –  Under pressure to cut costs, your top team mandates an efficiency drive which successfully reduces the number of employees by 15 or 20 percent.

Rather pleased with themselves, they turn to other problems only to find — a year or so later — that managers have found reasons to recruit, headcount has started drifting up again, and all those efficiency gains are being lost.

Or maybe your managers are worried about “silos”? Important parts of your organisation don’t talk to each other or coordinate their activities. So they implement an exciting internal communications strategy using newsletters, a Yammer network and a regular Knowledge Café featuring a communicator of the month.

Six months later, the newsletter is overdue, Yammer is mainly used to organise parties, and Knowledge Cafes are sparsely attended, and not attended at all by senior managers.

What is going on? Well, the organisation is doing what organisations always do, which is to revert to its original shape once external pressure has been removed.

The external pressure at first appears to work and the organisation appears to change, but this creates unseen internal pressures which assert themselves once the external stimulus has been removed. The answer — the only answer — is to address all the key elements of your organisation at the same time.

It sounds daunting and it requires serious planning, but it is the only way to achieve a reasonable chance of success.

What are the key elements? They can undoubtedly be described in a number of ways, but these “Six Cs” works pretty well:

  • Capacity
  • Capability
  • Communications
  • Culture
  • Compensation
  • Constitution

Let’s look at each in turn.

Capacity is straightforward:  it is the organisation’s resources, and in particular its staff numbers. It is an easy and obvious target for efficiency gains. The equally obvious problem is that the remaining staff will need to work harder or in different ways. Which leads directly to the next element:

Capability, which could also be referred to as competence.  This encompasses staff skills, training, experience and motivation.

It lies at the heart of any change program because,  obviously enough, if you don’t improve – or at least alter – the capability of your team then they are very unlikely to be capable of working effectively within a more challenging environment.

Note in particular that improvements in capability must be more than just cosmetic. A change of title plus a bit of e-learning will not cut it. There needs to be a serious training program and/or supervised further experience followed by rigorous testing.

Staff motivation can be particularly resistant to change, if only because most humans do not like being taken out of their accustomed comfort zone. There is extensive literature on how whole organisations can lose confidence when faced with the need for change, and this needs to be understood and allowed for. This in turn requires high class communication, hence the need to also focus on the next element.

Communications: This includes both communications whilst the change program is ongoing, and also new ways of communicating once the changes have been implemented.

The methods you choose to use to communicate within the change program must be specifically designed for your organisation — and indeed for individual parts and levels of your organisation. But the messages to different audiences must be consistent if they are not to be discredited, and must be capable of persuading the cynical and disaffected as well those keen on change.

And, afterwards, more open, fast-moving and less hierarchical communications styles (if that is what you need) will need to be reflected in changes in the organisation’s culture:

Culture: It can be extremely difficult to develop new internal relationships, attitudes to innovation, and attitudes to customers.

These improvements are often driven by changes in compensation/remuneration — as I outline below – and reinforced by employing more experienced and better trained staff, which speaks to the Capability element above.

Indeed, this is perhaps the area where change programs most often begin to fall apart when change managers fail simultaneously to address all six elements listed in this note.

Compensation: If you are aiming to employ fewer staff then you will almost certainly have to reward the remainder rather better, even if this limits your cost savings.

The same applies if you want staff to work more independently and/or innovatively, or to demonstrate better interpersonal or customer-facing skills.

Constitution: Last, but not least, very few of any of the above elements will respond to pressure for permanent change unless accompanied by changes to organisational structures, reporting lines etc.  These sorts of changes succeed in administering severe jolts to any organisation, because they are hard to reverse and lead to both managers and staff re-evaluating their roles and responsibilities.

It can be hard to know when to introduce these organisational changes. They will feel premature and unnecessary if introduced before much else has changed. And they will be too little, too late, if the other changes have already begun to degrade.

In short …. very few change programs achieve their full objectives, and many are complete failures.  This is because it takes a lot of thought and time to plan a program which simultaneously changes all six key elements of an organisation. But the effort is well worthwhile if you are seriously focussed on success.

Martin Stanley

Follow this link for more advice on Managing Policy Teams
in the private and public sectors.

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