Housing Associations and Public Contractors: Freedom of Information — [Mr Clive Betts in the Chair]

– in Westminster Hall at 11:28 am on 6th March 2019.

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[Mr Clive Betts in the Chair]

Photo of Andrew Slaughter Andrew Slaughter Labour, Hammersmith 2:30 pm, 6th March 2019

I beg to move,

That this House
has considered extending the Freedom of Information Act 2000 to housing associations and public contractors.

It is a pleasure to serve under your chairmanship, Mr Betts. This issue is very dear to my heart and, I know, to those of several colleagues. I am pleased to see the hon. Members who have attended, particularly the Scottish National party spokesperson, Tommy Sheppard, who is here on his 60th birthday. I will try to keep my remarks on this complex and interesting topic within reasonable bounds.

I start by referring to a report from BuzzFeed News this morning on the specialist police unit that investigates crimes against MPs, which has received 558 complaints since it was set up after the tragic death of our colleague Jo Cox in 2016. Those complaints include four assaults, five bomb threats, seven hoax noxious powders, four reports of trespassing and 20 reports of criminal damage. There has been a threefold increase in reporting in the second half of that period since 2016, compared with the first part. I would have thought that was of great interest to many people, and particularly to Members.

Those details were obtained under the auspices of the Freedom of Information Act 2000 and are just one topical example of the importance of that Act, which was one of the great successes of the last Labour Government. It is used by individuals, campaign groups, journalists and Members to obtain information that the Government and public authorities have been unwilling to disclose voluntarily. In a 2012 report, the Justice Committee described it as

“a significant enhancement of our democracy.”

In a Supreme Court judgment of the same year, Lord Mance said the Act

“reflects the value to be attached to transparency and openness in the workings of public authorities in modern society”,

while Lord Phillips said it

“adds to parliamentary scrutiny a further and more direct route to a measure of public accountability”.

It is therefore sad that some former exponents of the Act have in the past 20 years sought to limit its scope, usually on one of two grounds. The first is on policy grounds, saying that they believe the Act restricts the ability of the Government to debate freely, because sensitive matters might be disclosed, which is at least honest. Secondly, and more commonly, it is on resource grounds by trying to restrict the amount of money spent by public authorities on responding to inquiries inquiry, which is ostensibly to save public money but is really to restrict the right of the public and others to freedom of information.

I am afraid that that still goes on. The excellent Campaign for Freedom of Information published a report only this week on the variation between London councils’ response times to freedom of information inquiries. I will not go there, because that is not the topic of the debate, but that report bears a lot of scrutiny, as all its reports do. Interestingly, the establishment of the Independent Commission on Freedom of Information, chaired by Lord Burns, by the coalition Government was widely believed to be paving the way for new restrictions; I believed that it was. However, having looked at the merits of freedom of information, it ended up recommending the opposite. Its 2016 report found that freedom of information had “enhanced openness and transparency”, and called for the right of access to be strengthened, not restricted.

Indeed, one of that commission’s recommendations for strengthening the Act was to address the problem of obtaining information from contractors, which would also be addressed by my private Member’s Bill, the Freedom of Information (Extension) Bill, which is still before the House but is rapidly running out of time.

However good the legislation, in the 20 years since its passage, as it will be next year, we have fallen behind other countries and some of the limitations of the Act have been exhibited, which we probably now need to correct. I hope to hear from the Minister that we will attend to that. I am sure that my friend, the hon. Member for Edinburgh East, will tell us that things are done better in Scotland, but they are also done better in Brazil, Estonia, Macedonia, New Zealand, South Africa, Ireland and Hungary, some of which have incorporated some of the measures I propose. That is a rather eclectic group of countries.

It is right that there have been some changes to the Act, but they have been limited; a certain number of bodies that were perhaps in a grey area are now subject to the Act. The only ones that have been added since the Act’s passage are—I think this is an exhaustive list—the Financial Reporting Council, the Association of Chief Police Officers, the Universities and Colleges Admissions Service, the Financial Ombudsman Service, Network Rail and, most recently, the National Police Chiefs’ Council. It is inarguable that any of those bodies should have been within the ambit of the Act, but it took two years to designate the NPCC in that way. I will come on to this in more detail in a moment, but there are essentially two ways to expand the ambit of the Act: by adding bodies to the schedule or by incorporating different types of bodies, such as contractors, under the powers granted by section 5 of the Act. No use of those powers has been made at all, so far as I can see.

An enormous range of public services are now delivered by private companies, charities or not-for-profit agencies under contracts with public authorities, ranging from the running of prisons and immigration removal centres to the provision of meals on wheels, social care visits and parking services. The Information Commissioner estimated recently that more than £284 billion—a third of all Government spending—goes on the purchasing of public services. Some of the main recipients of that spending have become household names; some are perhaps better known than certain Government Departments, including Serco, G4S, Capita and the now infamous Carillion. Unfortunately, under FOI, those contractors are significantly less accountable to the public than the authorities that previously delivered the services directly.

Here the story becomes a little more complicated. The Freedom of Information Act applies not only to information held by a public authority, but to information held by someone else on an authority’s behalf. But when is information held on an authority’s behalf? The test applied by the Information Commissioner and, on appeal, the information rights tribunal, is whether the contract between the authority and the contractor empowers the authority to demand that information from the contractor. If it does, that information is considered to be held on the authority’s behalf, and is available, via an FOI request, to the authority. If it does not, the information is considered to be held for the contractor’s own purposes and is not subject to FOI.

The FOI requests that have been refused because the contract gave the authority no right to the information form a long list. That list includes a request for information on fire safety defects in the CT scanner room of a hospital that the NHS trust leased under a private finance initiative contract that did not give it the right to such information from the PFI body. When the request was made, the trust could not obtain the information, so neither could the requester. The list also includes a request for information on the number of complaints made against court security staff, and the number of those staff with criminal convictions. The staff were provided by G4S, and the Ministry of Justice’s contract did not entitle it to such information.

There was also a request for information on the number of prison staff at the privately run HMP Birmingham, and the number of attacks at the prison. Again, that information was held only by G4S and was not covered by the MOJ’s contract. A request for information on the value of penalty fares issued by London Overground and docklands light railway was also refused, as the information was held by private sector inspectors, as was a request on the cost of bringing TV licensing prosecutions, because the information was held by Capita and was not even known to the BBC.

I will add two examples that are close to home. Last Friday, I attended a demonstration outside Hammersmith Hospital in my constituency by porterage, cleaning and catering staff, who are on very poor terms and conditions and, in many cases, the minimum wage. They are all employed by Sodexo—another large multinational company—and I heard horrific stories of the conditions that people had to work under and what happened when people were sick. If they had been directly employed, I could have made inquiries to find out the truth of the matter about at least some of those terms and conditions, but I know there is no possibility of that. I could try to talk to Sodexo if it would talk to me; I could try to talk to the trust about the contract, but I would like to be able to get access to information of that kind. I have only praise for the workers, who provide an essential public service, and for the GMB union, which is representing them in the dispute. It is difficult to do that when one hand is tied behind your back.

The other example is from the neighbouring constituency of Kensington and relates to a tragedy with which we will all be very familiar—the Grenfell Tower fire. For some time, the Kensington and Chelsea Tenant Management Organisation, which managed Grenfell Tower, refused FOI requests on the grounds that it was not itself a public authority. The Information Commissioner upheld such a refusal in 2012.

KCTMO latterly accepted that it held information on behalf of the Royal Borough of Kensington and Chelsea and began to reply to requests, but in July 2017, after the fire, it refused another request, again on the grounds that it was not subject to the Act. That was in relation to a 2005 consultant’s report documenting the failure by KCTMO and one of its contractors to maintain the Grenfell Tower emergency lighting system. The extraordinary risk of allowing such information to be withheld from the public is obvious. We need to remove the uncertainty that led to that thoroughly unsatisfactory and dangerous situation.

It is common to find contracts containing some impressive-sounding clause such as: “The contractor undertakes to assist the authority in complying with its obligations under the Freedom of Information Act.” That sounds fine until we realise that the authority’s obligations are to deal with FOI requests for information that the contractor holds on its behalf. What information is held on the contractor’s behalf? Such clauses take us no further in establishing that.

One answer is to introduce into contracts an umbrella clause saying that all information relating to the performance or planned performance of the contract is held on the authority’s behalf for FOI purposes. All such information will then be accessible under the FOI Act or under the Environmental Information Regulations 2004 via a request to the authority. That is what my private Member’s Bill would do. The Freedom of Information (Extension) Bill would insert into the FOI Act a new section 3A stipulating that all contracts entered into by public authorities for the provision of services are deemed to include such a disclosure clause. The clause would also apply to the contractor’s subcontracts. It would cover existing as well as future contracts.

The result would be that all information about the planned or actual performance of the contract would be subject to the FOI Act or, in the case of environmental information, to the parallel EIR. That does not mean that all such information would automatically be released. Disclosure would depend on whether exemptions applied—for example, for information whose disclosure would be harmful to the contractor’s or the authority’s commercial interests, or be a breach of confidence. I stress that the measure is not intended to guarantee disclosure of contractors’ information. Its aim is to ensure that the FOI process applies, so that information is disclosed unless there is good reason not to disclose. The advantage of that approach is that it would not require contractors and, in particular, small bodies with few staff to spend time learning how to deal with FOI requests. The request would be answered by the public authority.

The Freedom of Information Act itself contains a separate, but so far never used, mechanism for bringing contractors directly within its scope. Under section 5(l)(b), contractors can be designated as public authorities in their own right for FOI purposes and required to deal directly with requests. The procedure can be used only where the contract is for a service that it is the authority’s function to provide, which is not the case for all contracts. The Scottish Government have brought contractors that run prisons and their subcontractors under the Freedom of Information (Scotland) Act 2002 via such a mechanism. I regret that that has not been done under the UK Act as well.

There is substantial support for action to deal with contractors. In 2012, the Public Accounts Committee said that

“where private companies provide public services funded by the taxpayer, those areas of their business which are publicly funded should be subject to the Freedom of Information Act provision.”

In 2018, the Committee on Standards in Public Life urged the Government to consult on extension of the FOI Act to cover information held by public service contractors. The Burns commission, which I have mentioned, recommended, in relation to larger contractors, that

“information concerning the performance or delivery of public services under contract should be treated as being held on behalf of the contracting public authority. This would make such information available to requestors who make requests to the contracting public authority.”

Most importantly, this January the Information Commissioner, Elizabeth Denham, published her report entitled “Outsourcing Oversight? The case for reforming access to information law”, which calls for changes in the FOI Act similar to those proposed in my Bill. It is not the first time that the commissioner has indicated that that is what she wishes to see, but this weighty and authoritative report makes the case far more stringently than I can, with the resources available to me.

The report calls for, as one option, greater use of existing powers under section 5 of the FOI Act. It recommends—this is what I was explaining earlier—that the Government should:

“Designate contractors regarding the public functions they undertake where this would be in the public interest”.

It also recommends that they:

“Designate a greater number of other organisations exercising functions of a public nature, and do so more frequently and efficiently.”

The report states that:

“Designation orders under section 5…would give the public the right to make requests directly to these organisations and require them to proactively disclose information in line with a publication scheme.”

The alternative would be to amend the primary legislation. Given the 20-year gap, that might be a more sensible course. It would allow for amendment of the environmental regulations as well.

The Government often plead lack of time for this, but given that there are at least three routes to reach the same objective, as I have explained, one of those must suit the Government’s purposes. As I have said, there has been no attempt at all to bring private contractors within the remit of the Act so far. There have been some additions—I read out the list earlier—to the schedule of bodies that are subject to the Act, but that has been, if not grudging, rather nugatory in its effect. Some of the leading contenders are not yet on the list, and perhaps the leading contender—this is the second part of the debate today—is housing associations.

Housing associations are not covered by freedom of information, although many of them have inherited local authority housing stock. This will be a matter close to your own heart, Mr Betts, given that you chair the Housing, Communities and Local Government Committee. In some cases, the tenants, and therefore the public, have lost freedom of information rights that they previously enjoyed when those homes were under council control. I have examples of such estates in my constituency. The Grenfell fire has highlighted what I would say is the irresistible need for a right of access if only on safety grounds, yet when Inside Housing asked 61 housing associations for copies of their fire risk assessments in 2017, only seven provided them.

Let me give just a few more examples. A housing association tenant who asked for information about the cause of a fire in his premises in 2009 received no answer. A tenant who asked whether the water supply to his premises was provided through potentially toxic lead pipes received no answer. A tenant was refused a copy of an electricity bill, which led to his being charged £1,200 to cover the cost of six communal light bulbs. Another unsuccessfully asked for the make and model of estate street lighting that he found “overpowering” at night. He wanted the information in order to contact the manufacturer to see whether it could suggest a remedy, but he was refused. Requests for the number of repossession orders served since the bedroom tax came into force and the number of those tenants who had no arrears before that date were also refused.

Those are hardly state secrets; they would be available to any council tenant. It seems entirely anomalous and illogical that they are not available to other social landlords’ tenants as well. In 2011, the coalition Government announced that they would consult housing associations on bringing them under freedom of information. Regrettably, they failed to consult or act, and the current Government show no sign of doing so either.

I will refer briefly to the National Housing Federation. I ought not to have a go at the National Housing Federation, because it generally does a good job in representing its members. However, its arguments for not coming under the Freedom of Information Act, which it barely puts forward in its briefing, are thin. I think it knows in its heart of hearts that it should just give in gracefully, which actually would be to its advantage. The NHF’s arguments, whether commercial confidentiality, the ability to purchase land or the idea that housing associations might need to be reclassified as public bodies, are chimeras and fabulous tales. I believe that the legislation has been passed in Scotland and housing associations there will come under the equivalent Act later this year. There seems to have been no problem there.

As for commercial confidentiality, there are exemptions in the Act, which are there to be used. All institutions, including universities, have used the excuse of financial burden. Any public body or a quasi-public body of this kind will have expenses. It will have to do consultations, run democratic organisations and be subject to more regulations on the whole than individual private citizens. That is just a fact of life, and freedom of information is another fact of life along those same lines. There is no barrier to charities—universities are a good example—coming under the Freedom of Information Act. There is no reason why they will be reclassified as public bodies simply by coming under the Freedom of Information Act. I cannot even say “good try” to the NHF on this occasion. It cannot actually bring itself in the document to say what it wants us to do. It just leaves it there. I think another push might take it on to the side of the angels on this one, but we will see.

For completeness, in the Information Commissioner’s report and in my Bill there are some other anomalies that we ask the Government to address as a matter of simple logic. One such anomaly is electoral registration officers and returning officers. At one stage the Government agreed with us on that, so why it has not been done is a mystery. Local safeguarding children boards are another anomaly. They are not the subject of this debate and therefore I will not say a great deal more about them. However, it is an indication that, rather than being entirely resistant, having to be pushed every time and taking their time over it, it would be nice if the Government had a proper review and decided what would bring the Freedom of Information Act up to date in some of the ways that have been indicated.

To conclude, I believe that a consensus is growing. The Information Commissioner is doing an excellent job not only of clearing the backlog of complaints and administering the scheme, which was the primary function, but of championing the cause of freedom of information. Equally, Maurice Frankel and the Campaign for Freedom of Information, which was instrumental all those years ago in getting the Freedom of Information Act passed, are constantly scrutinising and pushing it in an exemplary way. I thank them in particular for their assistance with my Bill and with this debate.

There have been previous attempts at legislation. My hon. Friend Louise Haigh, the shadow Policing Minister, is ably ploughing the same furrow. There is even some support from the Government Benches. Philip Davies, after talking out my Bill, assured me that is was nothing personal; he was actually talking out another Bill at the time, and he commended my Bill and said he will fully support it next time there is an opportunity. What more rousing recommendation does one need than that? Not only my party, but the Scottish National party, the Liberal Democrats and the Green party support this measure. The Minister might begin to cotton on to the fact that she is in a small minority here, constantly being pushed in the right direction.

I will end by putting the following questions to the Minister. Given that the situation that I have outlined—in respect of contractors and the work that they do, and in respect of housing associations and other organisations—is exactly analogous to those public sector bodies that are fully subject to the Freedom of Information Act, so that there could be two institutions next to each other operating under completely separate regimes, this is not really a question of the Government making concessions, but simply a case of the Government correcting anomalies. Whether they do that through secondary legislation, by supporting my Bill or through primary legislation, the time has come for it to happen.

I hope the Minister is grateful for this opportunity to indicate where the Government’s thinking is on this matter, in respect of the individual examples that I have given and in respect of reviewing the Freedom of Information Act generally. I hope that there will be enough time for her to reply in detail.

Photo of Daniel Zeichner Daniel Zeichner Labour, Cambridge 2:56 pm, 6th March 2019

It is a pleasure to serve with you in the Chair, Mr Betts. I congratulate my hon. Friend Andy Slaughter on securing the debate and making an extraordinarily persuasive case, as he always does. It was so persuasive that, were the Minister not constrained by her place on the Government Front Bench, I am sure she would agree with it entirely.

This is not a new issue. I should declare at the outset that when I worked for the public services union Unison before coming to this place, it was already a matter of great concern to us. We could see the way the world was changing and the potential pitfalls that lay ahead. We were delighted that through our work with the Labour party, via our Labour link, we were able to secure a commitment from the then shadow Front Bench that freedom of information would indeed be extended to all public service providers.

The coalition Government at the time did not agree with that and sadly—2015 did not see the return of a Labour Government—this woefully out-of-date position persists. As my hon. Friend the Member for Hammersmith said, the Information Commissioner agrees. In the weighty report—we have all been carrying it around—entitled “Outsourcing Oversight? The case for reforming access to information law”, the commissioner makes a compelling case. The argument is essentially that the Freedom of Information Act should be extended to all public services, even when they are carried out by private companies.

I will say a bit more about the report and give some examples of where this creates problems in my constituency—I suspect that similar cases would be found across the country. The Information Commissioner recently came to Parliament to launch her report at an event, which I was very pleased to be on the panel for, organised by the parliamentary internet, communications and technology forum. Her team has done an excellent job of highlighting the problem, which is central to the issues that my hon. Friend has pointed out.

The key point is to understand how different the world now is from the world of the late 1990s, when the Freedom of Information Act was first introduced. Government now spend almost a third of our total expenditure with external suppliers—some £284 billion a year, which is an extraordinary amount of money. These external suppliers deliver services on behalf of public authorities. They are often private companies, charities and other not-for-profit organisations, which are not necessarily subject to freedom of information, thus massively diminishing the accountability of public service delivery.

As we have heard, the Information Commissioner uses the examples of the Grenfell Tower tragedy and the collapse of Carillion to show the consequences of a lack of transparency and accountability. They are both particularly awful examples. I have raised that concern with Ministers before. The answer was that extending the Freedom of Information Act would have made little difference, but I disagree. I think there is an essential problem with delivering public services in an opaque manner.

When councils run services, if we think they are doing a bad job, there is a simple solution: we vote them out—we get rid of them. That concentrates minds. Sadly, however good the service delivery may be through housing associations or public service contractors, or local charities providing social services and so on, when questions are asked it is much harder to know what to do about them. Extending the Freedom of Information Act hands that power of exposure and transparency back to citizens, and that ultimately is how to drive up standards. It reduces the risk of narrow or neglectful practices in the delivery of those services.

As constituency MPs—I am sure colleagues have the same experience—residents write to us about all manner of issues, some of which we have more control over resolving than others. In Cambridge, where the cost of living is extremely high, housing makes up a significant part of my postbag. For example, Montreal Square is a small area of housing—a delightful oasis of calm in the busy Romsey part of the city. Cambridge Housing Society, a local housing association, proposed to replace the 18 existing homes with 45 new, affordable, energy-efficient homes. Understandably perhaps, it wants to modernise existing homes on the site, and add more. Equally understandably, some of the residents who live there—some have been there for more than 35 years—are very unhappy about that fundamental change to their local community.

I pay tribute to Cambridge Housing Society and its chief executive, Nigel Howlett. It is an excellent organisation doing a great job, and Nigel is an outstanding leader in the sector. It is a charity that aims to provide the maximum amount of housing possible, but it also wants to take into account the concerns of the local community, so it is in a difficult position. It is trying to balance the needs of existing tenants against potential future tenants who do not have homes at the moment. That is a hard choice, but essentially it is a political one and, in my view, it should be taken by people who are democratically accountable. People come to me and ask, “Who makes the decision? What can be done about it?” If it was a council decision, the answer would be very clear.

Extending freedom of information to housing associations would not automatically solve the problem, but it would be a significant step forward. It would allow far greater accountability for residents and wider members of the community. It would give them a much stronger lever to question how decisions are being made and, most crucially, to get the information behind the decisions. I know that the Minister will say, “We are putting out more and more data.” It is not more data we want; it is the key data that they do not want to share that we want. That is what freedom of information gets to.

My hon. Friend already referred to the National Housing Federation’s briefing. I am delighted to say that there has been no collusion, but my reaction was exactly the same—my office colleague will testify to my reaction. The briefing states that extending freedom of information legislation could put

“not-for-profit providers at a disadvantage against commercial bodies in bidding for land...reducing housing associations’
ability to obtain private investment.”

As my hon. Friend so eloquently put it, those are fairly woeful excuses. The Information Commissioner has assured me that the Freedom of Information Act already has mechanisms in place to deal with such issues. It is a flimsy set of arguments, frankly. I certainly want to find ways of helping housing associations in their battle against developers for land, but diminishing public accountability is the wrong way to go about it. It would be much better to address the very real problem of secrecy in the commercial land market. It should not be forgotten, of course, that huge amounts of public money goes through housing associations, and has done so in the past, to provide essential homes for people. We must protect the democratic accountability of our public services.

I have two further examples in other sectors, which show how freedom of information can make a difference. Across the country, and in Cambridge and Cambridgeshire, we have seen mass academisation of schools, which is often unpopular. Parents, children and local communities feel very strongly about this issue. In my city there is currently a proposal for a merger of a local multi-academy trust with a large national one, which has caused some upset among my constituents, who are concerned—rightly, in my view—about the potential consequences.

Both academies and multi-academy trusts are subject to FOI, but the position is far from clear. Academies were brought under the FOI Act in 2010 and have to answer FOI requests. With multi-academy trusts, the situation is a little more complex. I sought advice from the Information Commissioner’s Office, which told me:

“MATs will be covered by the FOI Act (and are ultimately responsible for the FOI obligations of all the academies)”,

but

“the information requested must be held ‘for the purposes of the proprietor’s functions under Academy arrangements’. It’s very likely that the information held will fall into the purposes specified”.

However, it is not hard to imagine that if a multi-academy trust wanted to, it could use the FOI exemption for information that is a trade secret or

“would be likely to prejudice the commercial interests of any person or body” in some of those cases. Where questions have been asked locally regarding the merging of academy trusts, I have been assured by the MAT in question that it is releasing as much information as it is permitted to through the current FOI regime. I commend them for that, but it is easy to see that less scrupulous trusts may not always choose that course of action.

This is not simply about the facts of legislation; it is also about how it feels to the public, and the need for communities to feel that they have genuine ownership over the services that their taxes fund. After all, whose schools are they? I think they are our schools, but all too often it does not really feel like that. Extending the Freedom of Information Act in the way suggested might help a little, although I would argue that a much more substantial overhaul is needed.

This is not my first foray into arguing with the Cabinet Office about extending the Freedom of Information Act. I have an excellent exam board in my constituency, Cambridge Assessment, which is a major local employer. As Cambridge Assessment is a department of the University of Cambridge, it is subject to freedom of information requests. Other exam boards are not. That issue was first raised with me, astonishingly, as long ago as 2010, at a public hustings event hosted by Cambridge Assessment and chaired by the inestimable Simon Lebus, then chief executive. He challenged each candidate to declare whether they would pursue the issue and help him resolve it before his retirement, which at that point he thought was still some way off. As happens at public hustings events, we all pledged to pursue it. Little did we know that it would be quicker to build the fantastic new buildings that those visiting Cambridge see on the railway line—a huge set of buildings—than to get the Cabinet Office to move on this question. The skewed playing field for exam boards does a major disservice to Cambridge Assessment, because it is treated differently from its competitors. It argues that the Act should be extended to all exam boards because they use public money to perform a public service.

The Minister has been good enough to sit down with me and her officials on a number of occasions on this issue, a while ago. The letter I received from her this week was profoundly disappointing. She told me that she had had discussions with the relevant Education Minister, with the conclusion that although

“the Minister of State agreed in principle that there are other awarding organisations that carry out functions of a public nature”,

because

“the Department for Education has undertaken significant reforms of A Levels and GCSEs, which has placed significant additional burdens on awarding organisations, the Government is currently not in a position to being another process of consultation and possible legislative change”.

That is a dreadful argument, even by this Government’s miserable standards—I am cross about this. They have made some woefully unpopular and regressive education policy changes, and they are using that as an excuse for not being prepared to make some that might actually improve the accountability and transparency of the way we educate our young people.

Photo of Andrew Slaughter Andrew Slaughter Labour, Hammersmith

My hon. Friend has a long track record of campaigning on FOI—far longer than mine—and I am grateful that he is here for the debate. Does he agree that the decision to move freedom of information to the Cabinet Office—I do not mean this to reflect on the current Minister—was a mistake? It has been put in with data protection, which is often about restricting access to information, for the right reasons. In the Ministry of Justice, and with the Justice Committee, there was a far more robust approach to calling out the Government’s questions. A reassignment of Department and Committee might be a suitable step.

Photo of Daniel Zeichner Daniel Zeichner Labour, Cambridge

My hon. Friend is far more of an expert than I am on the matter. He has made an interesting observation that might be worth pursuing further. He may well have a very strong point there.

To return to my quest that is now nine years on. In fact, it is probably more than nine years, because I know that my predecessors, Julian Huppert and David Howarth, pursued the matter. I fear it might go back as far as Anne Campbell’s time. As I have said, I made a pledge to Simon Lebus that we would try to resolve the issue before his retirement. Sadly, it has not been achieved. I fear it might have to wait for a Labour Government, which I am sure will be along soon.

Freedom of information is sometimes considered a slightly nerdy issue—no apologies to colleagues present—but it is an incredibly important mechanism to secure proper accountability and democratic oversight. It is disappointing that we have not yet had a proper Government response to the Information Commissioner’s report, although, to be fair to the Minister, she has said that they are considering it carefully and will respond in due course, which of course is wonderful civil service speak. We will await events. We cannot let private companies get away with always doing their dealings out of the public eye when their decisions have a serious impact on the lives of all our constituents. We need the tools to provide the checks and balances. Too often it seems to be a carry-on behind closed doors and it cannot continue.

Photo of Clive Betts Clive Betts Chair, Housing, Communities and Local Government Committee

We will now move on to the Front-Bench speakers. The first is the SNP spokesman, Tommy Sheppard, who will be pleased to know that it is not the Chair’s responsibility to sing him happy birthday.

Photo of Tommy Sheppard Tommy Sheppard Shadow SNP Spokesperson (Cabinet Office), Shadow SNP Spokesperson (Scotland), Shadow SNP Spokesperson (House of Lords) 3:11 pm, 6th March 2019

Thank you, Mr Betts. I can think of no finer way to celebrate my 60th birthday than to be here arguing for an extension of the rights of people to information from the companies that do things for them or sometimes to them. I had hoped the debate would be a little better attended; we are somewhat thin on the ground. I assume that that is not to do with the importance that colleagues attach to the topic, but more to do with the bizarre timetabling of this week in Westminster where we have a faux tranquillity—the calm before next week’s storm—because there is not much going on in terms of debates and votes. Perhaps that has led colleagues to make a beeline for their constituencies to do important work there, rather than being available to participate in this discussion. We will have to make up for absent colleagues, but that does not undermine the importance of this subject.

My purpose here today on behalf of the third party is to support the arguments of Andy Slaughter and to advocate for a change in the law. Also, I will try to use this brief presentation to suggest some of the things that have already happened in Scotland, from which colleagues here might be able to learn.

Before I go into that, I want to put on the record a first-principles argument as to why freedom of information is important, because sometimes that gets lost in debate when it becomes technical and legalistic.

The greatest advocates for freedom of information are journalists—the press. That is correct because it is impossible to have a free press without the people who look at and scrutinise public institutions having the right and the ability to gain information about what the institutions are doing. If barriers are put up against that process, we diminish the role of a free press and undermine one of the pillars of our democratic system.

Freedom of information is also important for campaign groups that seek a change in how things are organised in our society. For me, the most fundamental importance of freedom of information relates to the individual: it gives the individual citizen, who is often the client, the consumer and the user of what is provided by corporations and companies, the right to understand what is being done to them or for them. It is very much about the contract between governors and the governed and making sure we live in a democratic society. Information flow and the ability to get it are absolutely central to that.

There has been debate about who should be covered by freedom of information legislation. The purpose is to try to look at organisations or institutions that operate in the public interest or at the behest of the public. They provide a public service. Even before the complexities of today’s modern governmental apparatus, it was the case for decades and for generations that the purpose of Governments was not always just directly to provide things. Often, the purpose of Government was to regulate or mandate other independent organisations to provide things. So, if we do not cover those organisations that are directed by public bodies, as well as the public bodies themselves, we get only half the picture.

In this world in which we live, where over the past 10 to 20 years we have seen an awful lot of debate about whether a public service should be provided directly or put out to the private sector to provide on behalf of the public, as that debate has got more and more complex so our legislation and its reach need to become more complex. If the privatisation of a service can be used to deny people the right to information on how it is run, that is a process where one Government policy—privatisation—leads to the undermining of another, freedom of information. So it is right that we review that situation.

In Scotland, the situation has been different. The UK passed the Freedom of Information Act 2000 and two years later the fledgling Scottish Parliament passed the Freedom of Information (Scotland) Act 2002, which had many of the same provisions and many of the same abilities in terms of the Parliament being able to extend the reach of the legislation. Of course, the Scottish legislation applies only to Scottish organisations. Organisations that operate in Scotland but are headquartered here are covered by the UK legislation, which is another reason it is in our interest to share information and let colleagues benefit from the experience that the Scottish Government have in this area, and a reason it is important for us to try to see the legislation here at Westminster improve—because Scotland is still, for the time being, part of the UK, and we therefore wish to benefit from any improvements that might be made at UK level.

The Information Commissioner, Elizabeth Denham, is fairly clear—scathingly so in many ways—about the fact that the current legislation is not fit for purpose. She also commends the experience in Scotland. I will quote from her recent speech. The hon. Member for Hammersmith compared us to other countries, and she said:

“Closer to home, the Scottish law provides greater coverage than our own.”

On page 7 of the report, she states that

“we are falling behind our counterparts in Scotland... who have done more to expand the reach of information access”.

In Scotland, we have already extended the scope of freedom of information provision to a range of bodies operating on behalf of the public sector—for example, private prisons, private contractors providing public services, and some private contractors or organisations that provide an important component within the matrix of social services where services are provided by a number of different providers. I think, for example, of independent special schools, which provide a vital service and to which the reach of the law now applies.

In Scotland, we have spent much of the past year debating the proposal that is in front of us today: to extend freedom of information legislation to registered social landlords, principally to housing associations. I recommend that colleagues look at not only what happens, but the process by which we got there and by which the Scottish Government and Scottish Parliament got there. An 11-month consultation took place throughout 2018, a lot of it with the housing associations—either individually or collectively—that were going to be affected by it. A lot of complex aspects of this debate came to light, but the important thing is that they came to light, were considered and were resolved. They were not barriers to moving forward. I hope the Minister will take it upon herself to be the champion of navigating this process and these reforms, rather than seeing what are perceived as difficulties or anomalies, or things that need to be exempt, and regarding those as a reason for inaction.

I will give a couple of examples from the consultation. There are specific requirements in the Scottish housing legislation—and, I think, in the equivalent English legislation—on providing accommodation for particular groups. Gypsies and Travellers are mentioned, for example. Some housing associations did not think it was right for freedom of information to apply in that case, because what they did would be specific to the client group, not a matter of general public interest. The matter was debated and the Scottish Government came to the conclusion that it probably was in the general public interest for anyone to have the opportunity to know what was happening with regard to Gypsies and Travellers, because the consequences if something went wrong, or if the action in question was not taken, would be borne not just by Gypsies and Travellers but by the wider community. The Scottish Government identified and defined a wider community interest, which meant that the area in question should be included.

Housing associations in Scotland spend a lot of time not only directly managing housing, but providing services to other landlords—sometimes in the private sector—through the process of factoring, which might include cleansing or environmental services. The housing associations argued quite strongly that factoring for third parties should be excluded from the legislation because it was a private contractual matter between them and a third-party organisation; it was not a matter of the public interest. After a long period of debate, which is written up in the report that was published two weeks ago, the Scottish Government came to the conclusion that they were minded to agree in this instance with the housing associations that factoring was a specific additional service that need not come within the scope of the legislation.

Finally, some housing associations argued that the scope of the information should be limited to what they were directly providing, by way of a contracted or legislated public service, and that people should not be able to ask questions or get information about the financial or constitutional governance of the organisation. They argued quite strongly to put blinkers on the legislation so that it would be possible to look only in certain areas. Again, after a long process of debate and consultation, that argument was rejected and it was felt that the public have a right to know about the general financial governance of housing associations because that is so critical to their ability to do the job that the public expect them to do.

The report process has concluded in Scotland, and many concerns were not only listened to but taken on board. Some were agreed and some rejected. The Government are now in a position to go forward with genuine broad consent and do exactly what the hon. Member for Hammersmith proposes should happen in England—extend the scope of freedom of information legislation to registered social landlords and housing associations. That will happen in Scotland in November, and I hope that when it does it provides further information and assistance to colleagues here, in ensuring that the rest of the United Kingdom does not lag behind and that where Scotland has pioneered, the rest of the UK will catch up.

Photo of Chris Matheson Chris Matheson Shadow Minister (Cabinet Office) 3:22 pm, 6th March 2019

It is a great pleasure to serve under your chairmanship, Mr Betts, and to follow the birthday boy, Tommy Sheppard—I wish him the best on his special day, and many more of them to come.

The debate, obtained by my hon. Friend Andy Slaughter, follows on from his work on his private Member’s Bill, the Freedom of Information (Extension) Bill, as well as from work done by my hon. Friend Daniel Zeichner. It also follows the report from the Information Commissioner’s Office, which has been referred to. This is clearly not a case of the Information Commissioner making a power grab, or of mission creep. The report is based on evidence showing where the current situation is not working, or where the ICO does not have sufficient power to challenge bodies that undertake work on behalf of public authorities, such that the balance needs to be redressed. I pay tribute to my hon. Friend the Member for Hammersmith for his persistence on the matter, but I cannot help thinking that at some point the change he proposes will become inevitable.

I, too, received a briefing from the National Housing Federation, and I gave it a read. I confess that my response was similar to that of my hon. Friends: “Is that it?” The reasons given for not adopting the proposals seemed pretty thin. I wondered why such bodies might not want the change. Perhaps it is because of concern about a regulatory workload and burden. However, it is clear to me that, where freedom of information operates, there is a possibility of change in the culture of the organisations operating under its auspices. They realise that they can no longer hold on tightly to information or act in a secretive manner, and so they become more open to the people whom they exist to serve. Their manner of doing business, internally and externally, therefore becomes more open, and perhaps they become better and more efficient organisations as a result. That culture change should be embraced and welcomed.

My hon. Friend the Member for Hammersmith discussed occasions when freedom of information requests were denied, such as requests regarding the number of attacks at HM Prison Birmingham, and the number of prison staff there—figures that G4S declined to provide. G4S also declined to provide information on the number of complaints from the public against court security officers. My hon. Friend discussed television licences and Virgin Care providing NHS services—something that has recently happened in my area, where increasingly community health services are delivered by private sector contractors. That has been a deliberate policy of the Government, and we have a philosophical difference about that privatisation. However, as the hon. Member for Edinburgh East said, the law must be able to keep up with changes in the way society is structured.

I noted something that my hon. Friend the Member for Cambridge said about public money being used for public services. That is at the core of the issue, and there cannot be any real argument about it. Where public money is being used to provide a public service, there should be no hiding place, and neither should there be any desire to hide from the necessary and, I think, welcome scrutiny that freedom of information provides.

Under the current Conservative Government there has been a clear trend in favour of large outsourcing companies, which tend to operate with little accountability or public responsibility. Carillion, Interserve, Capita and G4S are names that we regularly see. The reach of those companies is huge. I think I am correct in saying that Interserve had construction contracts to build motorway junctions, and it was running the probation service. Those companies’ reach goes right across society. The Opposition believe that the lack of responsibility and openness can amplify the possibility of problems. As the companies in question have less responsibility to act openly, they tend to clam up—for want of a better expression—hunker down and try to conceal any problems. We are clear that public services need to be transparent and accountable to the people who use them, regardless of whether they are delivered by the public sector or by private companies. We were clear about that in 2017, when our manifesto stated:

“We will extend the Freedom of Information Act to private companies that run public services”.

That will also be in our next general election manifesto, whenever it is required. We shall also extend the Freedom of Information Act to cover housing associations and other social landlords, as well as tenant management organisations, and we will consider extending it to cover contractor-held information.

The housing point is important because of the dreadful example discussed by my hon. Friend the Member for Hammersmith: the tragedy at Grenfell Tower. We shall never know whether openness might have prevented the tragedy. The public inquiry under way at the moment will consider those issues. We know, however, that residents were battling for several years beforehand to try to find information that was consistently denied to them—I will say no more, because the matter is currently under consideration by the inquiry.

The Freedom of Information Act does not generally apply to information held by contractors about the public service they provide to local and central Government—for example for social care, health, public transport, school inspections and privately run prisons—and that is because of a loophole in the system. Section 3(2) of the Act states that information held “by the public authority” also includes information

“held by another person on behalf of an authority”.

The information that a contractor holds on behalf of a public authority is therefore within the scope of a freedom of information request, even if the authority never physically holds that information as its own hard copy or electronic files. However, that does not include all information that may be held by the contractor in connection with the performance or proposed performance of a contract.

The kind of information that has been withheld from the public includes some examples that have already been mentioned, such as the cost of TV licence prosecutions. As my hon. Friend the Member for Hammersmith reminded us, not even the BBC is allowed to receive that information, even though it always takes a battering from the general public for prosecutions undertaken by Capita.

The Freedom of Information (Extension) Bill contains provisions to ensure that all information about the provision of public service under contract could be obtained via an FOI request to the relevant authority. It seeks to provide legal certainty on the position of contractors and subcontractors by requiring all contracts between a public authority and a contractor to be deemed to include a provision that all information held by the contractor or sub-contractor in connection with the performance, or proposed performance, of a contract is held on behalf of the public authority and therefore lies within the scope of the Act. My hon. Friend the Member for Hammersmith stated at the time:

“The general public has a right to know as much about Carillion or Serco when they are given public contracts or providing public services as we do about public authorities doing the same work. My Bill would bring freedom of information into line with the way public services are now being delivered in 2018”.

The report by the Information Commissioner’s Office states:

“In the modern age, public services are delivered in many ways by many organisations”— the point made by the hon. Member for Edinburgh East—

“yet not all of these organisations are subject to access to information laws. Maintaining accountable and transparent services is a challenge because the current regime does not always extend beyond public authorities and, when it does, it is complicated. The laws are no longer fit for purpose.”

The ICO recommended that private contractors should be FOI-able where that is in the public interest,

“whether because of the scale, duration or public importance of the contracts”.

The report continues:

“Without information to understand how public services are performing, how levels of service compare and how problems are tackled, the public will be left in the dark about the operation of public services. Access to information legislation is essential to democratic accountability and helps to create what we all want to see—better public services”.

In the case of Carillion, that lack of transparency prevented small businesses from making informed decisions as to whether to enter into contracts with it, at a time when it was financially risky to do so.

A recent TUC report recommended a number of steps to improve transparency in outsourcing. Those included, among other things, the creation of a so-called Domesday Book for all contracts. A new public body would be set up to operate at arm’s length from central Government, and it would have statutory powers to require both commissioners and contractors from across the public sector to supply it with data. It should maintain a Domesday Book for all contracts, including performance on the outsourcing of services. At the moment there is no centralised place to find a list of contracts for a specific company. I tried to find a list of contracts for Capita, but that information seemed to be fractured and diffuse across Government.

Tenants and the public have the right to information about councils under the Freedom of Information Act, but not about housing associations, which provide the same essential housing services and receive significant public investment. In my area almost all public housing is provided by three or four housing associations, and they were stock transfers previously owned by Chester City Council. The previous Labour Government and the Conservative-led coalition proposed that the legislation should cover housing associations, but that has not yet been achieved. Obtaining information from contractors, including on fire safety, can prevent a problem, and my hon. Friend’s Bill seeks to correct that serious omission by making housing associations public authorities for the purposes of the Freedom of Information Act.

Public authorities are suffering from the difficulties of austerity and cuts, and they will find it onerous to provide responses to freedom of information requests. However, the 2000 Act does contain provisions to prevent mischievous or repetitive requests from the same residents. Perhaps that has given public contractors a sense that they do not want to take on the same burdens, but if they are happy to take on public contracts they should surely be happy to take on the responsibilities of being a public contractor.

We have seen in the Government’s approach to public contracting what I believe to be a form of reverse redistribution that takes large amounts of public money and puts it into the pockets of big public contractors. From there it goes into the pockets, bank accounts, or indeed—dare I perhaps inject an unwelcome political element into the debate?—the offshore bank accounts, that belong to some of the owners of those public bodies.

Listening to the contributions from my hon. Friends, it seems that when public money is being spent on delivering public services, there can be no reason why the same public scrutiny should not be applied. It is a matter of time. Let us hope that it is only a matter of minutes, while the Minister responds, but if it does take longer to introduce such a measure, that will be achieved when the next Labour Government take office.

Photo of Clive Betts Clive Betts Chair, Housing, Communities and Local Government Committee

I call the Minister. I hope that she will allow a couple of minutes at the end for Andy Slaughter to wind up the debate.

Photo of Chloe Smith Chloe Smith The Parliamentary Secretary, Cabinet Office, Assistant Whip 3:37 pm, 6th March 2019

It is a pleasure to serve under your chairmanship, Mr Betts, and I thank you for that reminder. I thank Andy Slaughter for his points. I know that his thoughtful presentation follows on from the work on his private Member’s Bill. I also thank Daniel Zeichner. As he noted, we have looked in some detail at an issue regarding one particular examination board, but if he will forgive me, this afternoon I will focus on responding to the more general points that have been raised.

Freedom of information is, of course, one of the pillars on which open government operates. The Government are committed to supporting the effective operation of the Freedom of Information Act 2000. That Act has been in operation for more than 10 years. It received post-legislative scrutiny by the Justice Committee in 2012, and it was reviewed by the Independent Commission on Freedom of Information in 2016. One of the key questions raised by the hon. Member for Hammersmith is whether the time is right for an overall review of the Act, and I point him towards that work from 2016. It considered whether the Act still ensures an appropriate balance between transparency and the need for a private space—for example for advice and discussion—as well as whether the costs of freedom of information are proportionate to its many benefits.

The Government welcomed the commission’s focus on enhancing transparency, which went a little wider than just the 2000 Act. The Information Commissioner’s Office has added an important piece of research to the scrutiny of that Act with its recent report, and I am grateful to the commission and the commissioner for their work on a significant and complex matter. I will respond to that report shortly—I am sure hon. Members look forward to having that response by their bedside tables, just as they did the report itself.

As the Information Commissioner identified in her report, since the passage of the Freedom of Information Act, the UK has been at the forefront of opening up data to allow the public and press to hold public bodies to account. The Government are among the most open and transparent in the world and remain committed to the principles of transparency and openness. We launched updated transparency principles in 2017 and it is a fact that we are publishing more data than ever. We will continue to support the effective operation of the Act as part of that.

On the question of how housing associations ought to be dealt with, we fully share the view that landlords, including housing associations, should be accountable and transparent in their dealings with tenants, and should be responsive to their needs. I am not necessarily persuaded, however, that the extension of FOI to housing associations is the sole best means of achieving that. As landlords, housing associations are private sector bodies that deliver a social benefit, rather than exercising

“functions of a public nature” or providing public functions under contract on behalf of a public authority, as the Act says. It is important to maintain that distinction; I do not think the analogy is as simple as the second key question of the hon. Member for Hammersmith suggests.

If any Government were deemed to exercise too much control over private bodies, there would be a significant risk that they could be classified as public sector bodies. That would mean that, in this case, their private debt of about £70 billion would be added to the Government’s debt burden—the public’s debt burden. Housing associations would also be subject to public sector borrowing constraints, which would limit their ability to finance the development of new social and affordable homes. I note that housing associations deliver 93% of all new affordable homes, so it is not a small matter.

In terms of accountability, the vast majority of housing associations are voluntarily registered with the regulator of social housing and if they seek public funding, they must be registered and subject to that regime. That means that they have a duty to comply with the standards set by that regulator, including making information available to tenants about the running of the organisation. The key point is that last summer, the Government announced a review of social housing regulation that will look at how transparency and accountability for tenants can be further improved, including better access to landlord information.

As with every hon. Member, I add to the record my sympathy and personal anguish at the tragedy at Grenfell Tower. As Christian Matheson acknowledged, the inquiry is looking at some of the issues, including communications with residents, which specifically covers whether there was a formal system for recording concerns, what concerns were raised at the time or after the recent renovations, how and to whom any such concerns were expressed, and what was done in response.

Photo of Andrew Slaughter Andrew Slaughter Labour, Hammersmith

I gently say to the Minister that there are two weaknesses in her argument. First, disclosing information voluntarily, however laudable the aim or honestly done, is not the same as giving citizens the power to interrogate an organisation. Secondly, if the Minister is right—I think it was the policy of a previous Conservative Government to put the onus on housing associations, rather than councils, to deliver the lion’s share of social housing—and they are standing in the shoes of councils, there is all the more reason for them to be accountable in that way. If Scotland and other charities can do it, why does the Minister appear to envisage the risk of a housing association suddenly being classed as a public body, just because it is subject to FOI?

Photo of Chloe Smith Chloe Smith The Parliamentary Secretary, Cabinet Office, Assistant Whip

I thank the hon. Gentleman for those points and for the way he has put his arguments. I am simply saying that such issues should be considered through the review.

I am also grateful for the points added by Tommy Sheppard, to whom I wish a happy birthday. I add two points in relation to the situation in Scotland. First, we are looking to see the record that will develop there. As I understand it, the provisions have not yet come into force, so we will look at how effective they are in increasing transparency. Secondly, as the hon. Member for Edinburgh East mentioned, the Scottish Government laid the planning for the consultation on these matters in 2016 and began it in 2017, so it is not a short process. I would like to think that all hon. Members present recognise that the provisions of the 2000 Act mean that such things are not necessarily quick, simple or short. I will come on a little later to how the Act may be used to extend the scope, if desired.

On contractors—the other half of the case made by the hon. Member for Hammersmith—I remind hon. Members of the arguments made by my right hon. Friend the Minister for the Cabinet Office last year about why we as a Government use outsourcing. I say “we”, but successive Governments have used it. I will use his arguments as context in response to the contextual points that have been made today. As the hon. Member for City of Chester said, we may have philosophical differences, but this is why one would look at outsourcing as a benefit to the public.

As the Minister for the Cabinet Office said,

“you can have both good and bad in both the private and the public sectors”,

as we all know from what we get in our constituency mailbags every week. He continued to say that

“what matters is that the service works for the people who use it in their everyday needs” and that it provides

“value for money for the taxpayer.”

It is the case that

“the private sector has a vital role to play in delivering public services,” and the Government continue to support that position, as have successive Governments since at least the 1980s, as I said.

As my right hon. Friend said, outsourcing can deliver “economies of scale” that can mean greatly better value and lower costs for the taxpayer. It is also the case that

“open and fair competition…encourages creativity and innovation” that simply would not otherwise come about. Again, that benefits the user of that public service. The private sector can also bring

“a range of specialist skills, world-class expertise and deeper knowledge to bear on what can be complex issues.”

His argument is really that the Government

“cannot do everything by itself”,

and should not, because

“It needs the…innovation that only a…marketplace of suppliers can provide.”

In another speech last year on the subject, my right hon. Friend made the argument that small businesses and the third sector have a great appetite for taking part in providing those public services, and for a good reason. In many ways, they are often “closest to our communities” and are

“in the best…position to deliver social value” through those contracts. That is an important further argument to think about when we look at outsourcing.

Because the Government remain committed to supporting that position, we are sceptical about the introduction of additional reporting burdens on those small organisations. We think that it would weaken the resilience of the delivery for the taxpayer, reduce the value for money that the Government can deliver for the taxpayer, and affect the support that the Government can give indirectly to those jobs when we use such suppliers.

In respect of contractors, the Government have certainly considered how best to balance the competing interests of transparency and burdens. As I have said, we recognise the importance of transparency in how public money is spent, but we are concerned about a disproportionate burden, because we do not want to discourage smaller organisations from serving the public.

Photo of Andrew Slaughter Andrew Slaughter Labour, Hammersmith

I am listening to the Minister’s argument, but again, I thought I had dealt with that point in my speech. The majority of inquiries will be about the major contractors that take the lion’s share. I entirely take her point about small contractors, but my Bill would put the onus and the responsibility for the cost on the public authority to do that, so there is a way round it.

Photo of Chloe Smith Chloe Smith The Parliamentary Secretary, Cabinet Office, Assistant Whip

I am grateful to the hon. Gentleman for that clarification, and before I finish today I will talk briefly about that relationship between a contractor and the supplier, which is relevant to the proposal.

I will make one further general observation about the position of contractors; actually, I think the hon. Gentleman made it himself in his remarks. Of course, the Act exempts all organisations from providing information in certain ways, for example on grounds of commercial confidentiality. There are other exemptions as well. Extending freedom of information to another category of organisation does not necessarily change that fact, which is set out in the Act. I do not think the case can be made that extending freedom of information would have prevented supplier failure, of which some examples have been given this afternoon.

Let me move on to what is already done to provide information, because it is important to assess where we are working from. It is already policy for Departments to publish information during and after the awarding of a contract, with the exception of information that is commercially confidential, as I have said. That information includes a range of details. The Government’s model services contract includes clauses that reinforce that increased transparency.

The Government are now going even further and we will publish information about how our most important contracts are performing against their contractual targets. That will, of course, hold both Government and our suppliers to account. As well as increasing transparency for citizens to monitor outcomes, we think that this change will drive behaviour and improvements in delivery where they are needed. In addition, Departments are now required to publish their own commercial pipelines twice yearly, which is important to the public.

Since the Information Commissioner first published a report on this subject in 2015, the Government have introduced a range of measures to increase transparency. No doubt hon. Members have made use of the Contracts Finder website, where data can be found, and data.gov.uk, where details on spend can be found. In 2016, the transparency principles were also introduced, which make it clear to suppliers what information from bids will be released, and that any genuinely sensitive information should be highlighted with procuring Departments. That all ensures that citizens can see a clear public record of how Government money is spent on public contracts, and with what results.

I said I would turn to where information is held between the public authority and the contractor. Again, the Independent Commission on Freedom of Information looked at the issue of private contractors providing public services. First, it concluded that

“extending the Act directly to private companies…would be burdensome and unnecessary.”

However, it went on to say that

“information concerning the performance or delivery…should be treated as being held on behalf of the contracting public authority.”

Our amended freedom of information code of practice sets out that public authorities should agree what information is held on their behalf with private companies when entering into contracts, that those arrangements should be set out clearly and, indeed, that requests made to private companies providing public services should be passed to the relevant authority to answer. At present, therefore, the Government feel that the Freedom of Information Act strikes broadly the right balance.

Before I close, I will deal briefly with how the Act currently functions. Of course, the point has been made by the hon. Member for Hammersmith that secondary legislation is easy to use in this space. As he knows, orders can be made under section 5 of the Act, if it appears that particular bodies are exercising functions of a public nature; a number of other specifications are also made in that section. Such an order must be preceded by consultation with every person to whom it relates or with persons appearing to represent them.

I come back to the point that, although it may appear that section 5 orders are a straightforward and quick way to bring particular bodies into scope, the provisions in the legislation require consultation with all affected parties, and they further require a careful definition of what information that is held should fall within the Act. That is complex to do, and carries risks.

Adding to the scope of the Act through section 5 also requires a debate in both Houses. Some examples have been given of where these provisions have been used most recently, but I raise this matter to emphasise that the process is not necessarily a quick or straightforward one, and indeed that it is a virtue that such a process is set out in the Act already. Although the process is neither quick nor simple, it is the process that we should use to assess questions about scope.

To conclude, before obviously leaving time for the hon. Gentleman to sum up the debate, I say again that the Government are committed to the principles of transparency and openness across the public sector. We are proud of our reputation as a leader on data transparency. Indeed, we have evidence of that from one particular index that ranks the UK as eighth in the world for transparency, which is an important record. Transparency is crucial to deliver the public value for money, to assist taxpayers and to get the best services for citizens. However, proactive publication needs to be balanced with the other considerations that I hope I have set out for the Chamber today. The Freedom of Information Act is a very important tool in that box of transparency and the Government are absolutely committed to it. We want to see freedom of information used widely, but I hope that it has helped the Chamber today that I have set out some additional considerations in response to the hon. Gentleman’s arguments.

Photo of Andrew Slaughter Andrew Slaughter Labour, Hammersmith 3:56 pm, 6th March 2019

I am grateful to all those who have attended and taken part in this debate.

My hon. Friend Daniel Zeichner used some very good examples from his constituency, but he also exhibited his encyclopaedic knowledge of this subject and his long track record of pushing for freedom of information. I think that he and I feel that we may be getting somewhere at last.

I also thank the shadow Housing Secretary, my right hon. Friend John Healey, for attending the first part of the debate. He did not speak because of his elevated status, but I know he has a particular interest in housing association issues and particularly the issues around Grenfell. I am grateful to him for his support.

I also thank the two Opposition Front-Bench spokespersons, my hon. Friend Christian Matheson and the hon. Member for Edinburgh East (Tommy Sheppard, for their comments and associate myself with them.

The Minister, in her usual gracious way, put the Government’s argument as best she could, but it is wearing a little thin on these issues, as she conceded when saying, in response to my request for a fuller review, that there was the Burns commission. She quoted the matters relating to private contractors’ rights, but on the whole the Burns commission was sympathetic to the points that we are putting forward today. I hope that, when the response to the Information Commissioner’s report comes through, we may at last see some movement.

I remain hopeful, as always. I have noticed that there have been three private Members’ Bills in the past two years that would not perhaps have been expected to receive Government support: the Homelessness Reduction Act 2018; the Homes (Fitness for Human Habitation) Act 2018, which was put forward by my hon. Friend Ms Buck; and the equal civil partnerships Bill, which I believe is shortly to be enacted, once it has completed its stages in the House. Indeed, there are more recent examples of the Government taking over the Bills on upskirting and female genital mutilation. I am sure that that must be happening in so many cases because of the Government’s generosity and not because of their lack of a majority.

I therefore remain hopeful that—perhaps not in this Session and perhaps not even in the form of a Bill sponsored by me—a Bill of the kind that I have brought forward to extend freedom of information in the way that I have indicated will be achieved, and in the very near future.

Question put and agreed to.

Resolved,

That this House
has considered extending the Freedom of Information Act 2000 to housing associations and public contractors.