Monday, 12 November 2012

The law, and GDS's fantasy strategy

For some time now, the Government Digital Service (GDS) have made the meaning of their digital-by-default agenda clear – they want the UK to be like Estonia.

It is thanks to the fact that practically every service in Estonia is delivered over the web that, back in 2007, Russia was able to bring the country to its knees in a matter of days. If GDS succeed with their "modernisation" plans, there will be nothing to stop that happening here in the UK.

GDS are in awe of the financial success and popularity of Apple, Amazon, eBay/PayPal, Google and Facebook. With no experience of government behind them, the over-promoted software engineers at the head of GDS want to bring their heroes' tricks to the delivery of public services in the UK.

Sensible people will see Facebook et al as latter-day Pied Pipers of Hamelin – sensible people, including the tens of thousands of public servants who will be laid off and replaced by GDS's computers when government is, as they say, "transformed".

Many of these organisations are famous for avoiding tax on their UK profits and for using their near-monopolies to tyrannise their suppliers and to milk their customers. But GDS somehow maintain their naïve veneration and on 6 November 2012 they published their Government Digital Strategy.

This fantasy strategy is an elaboration of Martha Lane Fox's ideas, set out in her October 2010 letter to Francis Maude, Directgov 2010 and beyond: revolution not evolution. Ms Lane Fox is the Prime Minister's digital champion, she's a historian, and when she says "revolution" she means it.

Her revolutionary fervour is carried over into last week's GDS strategy, which Sir Bob Kerslake – head of the home civil service, permanent secretary at the Department for Communities and Local Government (DCLG) and previously the chief executive of first the London Borough of Hounslow and then Sheffield City Council – has greeted with a post on GDS's blog, Welcoming the Digital Strategy:
Our reform plan also made a clear commitment to improve the quality of the government’s digital services, and to do this by publishing a Government Digital Strategy setting out how we would support the transformation of digital services [how does publishing a wishlist improve the quality of public services?].

We fulfilled that commitment yesterday with the launch of the Government Digital Strategy, Digital Efficiency Report and Digital Landscape Report and I very much welcome their publication.
But why? Why does Sir Bob "welcome" this emmental cheese of a strategy? It's full of holes. Consider the law for example.

Back in October 2010 Martha Lane Fox wrote:
It seems to me that the time is now to use the Internet to shift the lead in the design of services from the policy and legal teams to the end users ...

[GDS] SWAT teams ... should be given a remit to support and challenge departments and agencies ... We must give these SWAT teams the necessary support to challenge any policy and legal barriers which stop services being designed around user needs ...
Last week's Government Digital Strategy says:
Government Digital Service will:

• offer specialist digital expertise to interpret existing legislation

In a few areas, laws made before the digital age can severely constrain the development of simple, convenient digital services. For example, HMRC have to provide tax coding notifications on paper rather than by electronic channels. Cabinet Office will work with departments to identify these potential barriers and ways to remove them ...
M'learned friends may have a few questions. By what Constitutional power will GDS overturn established law? What do GDS know about the law? What qualifications do they have, if any? What vainglorious delusions of grandeur make GDS imagine that it's their job?

Providing "tax coding notifications on paper" is one matter. The Electoral Registration and Administration Bill is another.

Under the provisions of that Bill, it is proposed that the electoral roll should be made more complete and more accurate by cross-referencing it with HMRC, DWP and Department for Education databases.

There is no knowing whether cross-referencing would help.

Whether or not it would help, according to the associated impact assessment (p.2), cross-referencing is illegal:
Key assumptions/sensitivities/risks: Data matching – national rollout would require primary legislation.
The Bill makes the illegal cross-referencing of local and central government databases a matter of identity assurance:
52. In time other forms of verification may become available which means that a person may not be required to produce their NINO [National Insurance number] and DOB [date of birth/birth certificate?] when making a new application to register – the legislation has been drafted with this in mind. On 18 May 2011 the Government announced plans for the development of a consistent, customer-centric approach to digital identity assurance across all public services.
Ex-Guardian man Mike Bracken is not only the chief executive of GDS but also the senior responsible officer owner of the identity assurance programme. No-one knows why. Does he know any more about identity assurance than he does about the law?

Will GDS simply declare that cross-referencing is legal? What is this "specialist digital expertise" that allows GDS to "interpret existing legislation"? Are we supposed to allow GDS to decide the matter? Is that wise?

Let's take a step back and try to get some perspective.

In his book The Socialist Case Douglas Jay wrote:
Housewives as a whole cannot be trusted to buy all the right things, where nutrition and health are concerned. This is really no more than an extension of the principle according to which the housewife herself would not trust a child of four to select the week's purchases. For in the case of nutrition and health just as in education, the gentlemen of Whitehall really do know better what is good for the people than the people know themselves.
That was in 1937, 75 years ago, and things have changed since then – no civilised man today believes that women are inferior and no four year-old can still subscribe to Lord Jay’s Doctrine of the Infallibility of Whitehall.

In 1952 Professor GW Keeton published his book The Passing of Parliament. Keeton was Dean of the Faculty of Laws at University College, London. He debunks The Socialist Case and points to the danger of the Executive moving beyond the reach of either Parliament or the Common Law:
... Very far from the Common Law replacing administrative tribunals, more and more are being created outside the Common Law year by year, and some of the cases discussed earlier in this book will show how, in spite of obvious willingness, the courts have failed to hold back the onward rush of administrative lawlessness.
That was 60 years ago. Keeton’s question then was, in summary, what was the point of going through all the suffering of the Civil War and of establishing the supremacy of Parliament in the 1689 Bill of Rights if we end up with an Executive behaving for all the world like some latter-day monarch whimsically exercising his or her prerogatives?

The question remains pertinent. In those 60 years Whitehall has continued arrogantly to ignore the interests of the public it is meant to serve while it makes one defective decision after another, inefficient and accountable to no-one.

Did Professor Keeton miss a trick? Will the present state of "administrative lawlessness" be improved by handing the interpretation of existing legislation over to a team of website designers using specialist digital techniques?

Where there should be answers to these questions in the Government Digital Strategy there are just holes. Revolution is proposed with no justification. And yet Sir Bob, the head of the home civil service, welcomes this fantasy.

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