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, the hon. Member for Edinburgh East (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:
“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 the Member for Sheffield, Heeley (Louise Haigh), the shadow Policing Minister, is ably ploughing the same furrow. There is even some support from the Government Benches. The hon. Member for Shipley (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.