Network Rail and political differences on the scope of FOI

A short debate by MPs on Tuesday (10 February 2015) was interesting for the differences it revealed between the political parties over the scope of the Freedom of Information Act (FOI).

The Delegated Legislation Committee was considering the draft Freedom of Information (Designation as Public Authorities) Order 2015, which extends FOI to Network Rail’s public functions. It follows the reclassification of Network Rail as a public sector body, which, in the minister’s words “made it a much more obvious candidate for inclusion”. In truth, both coalition parties had promised to extend FOI to Network Rail before the last election (see earlier posts here and here). Whether these promises would have been kept without the reclassification is uncertain. Last year it was reported that Number 10 was blocking the extension.

The coalition agreement published in 2010 promised the government would “extend the scope of the Freedom of Information Act to provide greater transparency”. In the Committee debate, justice minister, Simon Hughes MP, said:

We have been committed since then to achieving maximum openness and transparency so that the public can hold to account everyone who delivers public services that affect their day-to-day lives through the Freedom of Information Act, which is widely used, and through a transparency agenda, which includes publishing vast amounts of data about service delivery and public spending.

While it’s true more data has been published by the coalition, progress on the FOI front has fallen well short of what was promised. It’s true the government extended the Act to academy schools. It has closed a loophole so that the FOI Act now applies to publicly owned companies that are jointly owned by two or more public authorities, not just those wholly owned by a single authority. And it has implemented a decision taken by the previous Labour administration to extend the Act to the Association of Chief Police Officers, UCAS and the Financial Ombudsman Service.

But crucially, the public can’t hold to account everyone who delivers public services. The FOI Act fails to adequately cover information held by contractors and the government has done nothing to address this gaping problem. So far from “maximum openness”, the public’s rights to information are being eroded as more and more public services are outsourced.

The FOI Act provides that contractors providing services on behalf of a public authority can be designated as public authorities subject to the Act in their own right. There’s a strong case for using this to bring the larger contractors, such as those running our prisons, directly under FOI. But it’s unlikely to be a practical mechanism for the many thousands of smaller contractors or those delivering short-term contracts.

The Campaign has proposed a simple amendment to the FOI Act that would achieve full openness while avoiding the practical problem of separately designating each individual contractor.  Our amendment would automatically bring all information held by a contractor about the performance of a contract within the Act’s scope. Such information, including that held by a sub-contractor, would be deemed to be held on the authority’s behalf and be accessible via a FOI request to the authority, unless it was exempt. But the government has rejected this modest measure. Instead it promised to introduce a revised code of practice to encourage the use of contractual disclosure clauses coupled with voluntary disclosure to cover information not subject to such a clause. In the Committee debate, the minister admitted, despite his efforts, it had not been possible to get agreement across government and the code would not be delivered after all:

I had hoped that, before the end of this Parliament, we would be able to get the new code of practice and guidance in place that would require those contracts to comply with transparency levels equal to the Freedom of Information Act. We have not been able to get agreement across Government to bring that to the House. That has not been delivered, but I share the wish that it should be.

Plans to extend the Act to a number of other bodies with public functions have also come to nothing. In 2011, the government announced it would consult a range of other bodies about bringing them under the Act. This was put on hold while post-legislative scrutiny of the Act was undertaken, but picked up enthusiastically by Simon Hughes when he was appointed. But he told MPs on the Committee:

In 2013, once we had done the post-legislative scrutiny, we decided to look at larger bodies with a more significant impact on public life. The then Housing Minister suggested that housing associations ought to be included. I personally support that and there is no objection in Government to consulting on that. DCLG has not yet signed it off, but it is certainly understood that it is appropriate to take it further. We will not have time to do that before the general election, but it is important to subject housing associations to FOI because many of our tenants live in properties that used to be council-owned and were then handed over to arm’s length management organisations, but which are effectively council property.

The lack of progress in relation to housing associations is particularly disappointing, since in 2011 the then Housing Minister, Grant Shapps announced they would be consulted later that year.

Comparing the Committee debate with earlier statements shows the minister’s ambition to extend FOI has clearly come to little. But he probably deserves most credit for what has not been done to FOI under his watch – the government’s long-awaited consultation on proposed restrictions to the Act, which it has been considering since 2012, has not materialised. For this, we can breathe a sigh of relief, for now at least.

There is clear water between the parties on the scope of FOI. Labour are committed to ensuring FOI covers the delivery of public services by private companies. Last month, the Shadow Justice Secretary, Sadiq Khan, wrote:

We’ll update freedom of information laws so that the British people have the same legal rights to data on their public services regardless of who’s running them. This will be a fitting and appropriate way to celebrate a decade of freedom of information.

Simon Hughes told the Committee:

though it is not Government policy, I and my party are on record as saying that private sector bodies that are wholly-owned monopolies—for example, Thames Water, which supplies water to people in London—should also be open to the same transparency.

Watch this space for whether these commitments appear in the respective manifestos.

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