Public sector contractors cannot continue to hide from scrutiny
4 min read
The Freedom of Information Act is fundamental to our system of accountability. It’s vital we close this legal loophole and ensure it applies to the contractors who run our services, writes Andy Slaughter
The devastating collapse of Carillion has highlighted how dependent we have become on contractors for public services. Over £250 billion, a third of public spending, now goes to commercial or voluntary sector bodies for services. Some of these contracts have proved highly controversial. Both Serco and G4S have been forced to repay millions of pounds for overcharging for the electronic tagging of offenders, some of whom had actually died or were back in prison.
A vast range of services are contracted out, including meals on wheels, care visits for the elderly, NHS diagnostic services, school inspections, leisure centre management, parking enforcement, court security and the running of immigration detention centres and prisons.
The introduction of commercial practices has inevitably led to more secrecy. Contractors claim that openness threatens their edge over their rivals. Public authorities say it jeopardises their efforts to get the best deal when a new contract comes up. But ultimately such claims have to be substantiated under the Freedom of Information (FOI) Act.
Or do they? The Act suffers from a major loophole. Information which the contractors themselves hold about these services may not be covered at all. If the contract doesn’t give the authority the right to obtain that information from the contractor, the public has no right to it from the authority. The transfer of a function from the authority’s staff to the contractor’s, may signal the decimation of the public’s right to know under FOI.
This loophole has prevented the public finding out how often complaints about court security staff have been made and how many of them have been convicted of offences. The staff are employed by G4S but the contract does not entitle the Ministry of Justice to the information – so the public can’t get it either.
A report on fire safety at the CT scanner room of an NHS hospital was found to be outside the Act’s scope because it was held by a company providing services to the hospital under a lease and the lease did not permit the trust to see the report.
My private member’s Freedom of Information (Extension) Bill would close this loophole. The bill, due for its second reading debate on June 15, has been drafted with the assistance of the Campaign for Freedom of Information. It would bring all information held by a public service contractor about the contract’s actual or planned performance under FOI.
Requests would still be made to the public authority concerned, but the fact the information could be found in the contractor’s files not the authority’s would no longer matter. The Act’s exemptions would protect information whose disclosure was genuinely harmful.
The Information Commissioner’s powers to see disputed information would be extended to contractors. So would the offence which applies to an authority which deliberately destroys requested information to prevent its disclosure.
Housing associations would also be brought under the Act, ending the extraordinary secrecy often found. Tenants have been denied information about the cause of a fire in housing association premises or refused answers when asking whether potentially toxic lead pipes are used for water supply.
The number of repossession orders served since the ‘bedroom tax’ was introduced and the number of those tenants with no previous history of arrears has also been refused. The bill would also bring electoral registration officers, returning officers and local safeguarding children boards under FOI.
The FOI Act is a vital part of our system of accountability. My bill would help it keep pace with the way public services are actually being delivered.
Andy Slaughter is Labour MP for Hammersmith. The second reading of the Freedom of Information (Extension) Bill is on Friday 15th June.
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