Katy Clark: It’s Time to Close The Freedom of Information Loophole
This month, I lodged my final proposal for a members’ bill to reform Freedom of Information (FOI) in the Scottish Parliament. Access to information has been long recognised as a human right in domestic and international law. But it’s a right which we must continually fight for.
Freedom of information laws require public bodies, such as government departments and councils, to publish certain information by law, and we as individuals have the right to request access to information they hold. The principle that the public deserve disclosure about how they’re governed, how their money is spent and how their public services are delivered, of course, makes eminent sense. And yet, these are rights only enshrined in legislation in this country for a couple of decades.
The first FOI legislation in the UK was enacted in 2000, a second act applying only to Scotland was passed two years later, and both acts only came into force in 2005. Whilst their introduction was undoubtedly one of Labour’s achievements in government, the demand for greater transparency didn’t emerge out of thin air and was a long time coming. The introduction of FOI first appeared in a Labour manifesto in 1974. But it took decades of pressure and campaigning to achieve legislation. We now need to rediscover that energy and spirit. As the state has privatised and outsourced services, many of the rights which were won have been insidiously eroded, creating huge loopholes which are ripe for abuse.
In the UK, there are 295 ‘arms-length bodies’, formally established bodies which deliver a public or government services but without ministerial oversight. They account for over £220 billion of taxpayers’ money. They are also, for the most part, exempt from FOI. In Scotland alone in 2018, councils were using an estimated 130 arms-length external organisations, which have an annual spend of more than £1.3bn. The moulding of such bodies providing public services into target-driven market-oriented organisations working in ‘partnership’ with business has, of course, accelerated dramatically in recent years.
As more public services have been outsourced to the private and third sectors, FOI rights have been systematically lost, meaning we often have very little information about contracts for the services we need to rely on. Of course, it’s wrong that bodies funded by Government and providing public services are able to siphon off profits to shareholders, but I’d argue it’s also alarming these bodies don’t receive the same level of scrutiny. The consequences are deeply problematic and undemocratic.
Social care, for example, is dominated by private firms, which are often opaquely owned abroad in tax havens. These companies, which deliver a lifeline service for vulnerable people, are entirely exempt from providing the same information a local council running those same services is required to provide. During the Covid pandemic, this meant many care homes receiving FOI requests from families across Britain desperately trying to obtain key information about their loved ones could simply say they weren’t obliged to provide it.
In consulting on this issue as part of the Members Bill process over the last year, I’ve been told by private providers this practice should be allowed to continue due to ‘commercial considerations’ and that confidentiality clauses should be allowed to protect contracts. And yet these same companies have an in-built competitive advantage: a private school or health company can send FOI requests to state-run providers but not the other way around. It’s one of the reasons why my bill in the Scottish Parliament would extend FOI coverage to all bodies delivering public services and services of a public nature.
If a company is worried about commercial considerations and doesn’t want to be covered by FOI, the solution is simple: don’t bid for public contracts in the first place. This is a principle that should apply across all of the United Kingdom, and I’m not the first to raise this. Labour MP Louise Haigh sought to amend the FOI Act in 2018. Andy Slaughter sought to extend designation to various authorities on a phased basis the same year. And Grahame Morris attempted to extend coverage to private healthcare companies back in 2014. These are just a few examples – and meaningful reforms are usually knocked back.
However, I hope my bill in Scotland can kickstart reform and more importantly access to information about what is done in our name. The phrasing of the Scottish Act as it stands is stronger than in England, leaning slightly more in favour of disclosure of information, and ministers have since designated a number of sectors (for example, social housing associations).
The Scottish Government also already appears to have accepted at least part of my argument, and has just announced it’s to consult on potentially designating care homes. But this is set to come only after the passage of its delayed National Care Service bill, itself a massive tendering exercise, and won’t cover any other sectors. That’s not good enough.
It’s also a far cry from what the public are demanding: three quarters of respondents to my consultation back my bill; poll after poll indicates widespread support for the private sector being required to comply with FOI when delivering public services; the Scottish Information Commissioner is calling for an overhaul, and the parliament’s Public Audit Committee has backed reform.
The Scottish Government has been under investigation by the Scottish Information Commissioner now for five years over its own FOI performance, but that doesn’t excuse the lack of progress. My bill would ensure scrutiny of the performance of all organisations receiving public contracts and place an onus on the Scottish Government to live up to its international obligations around transparency and human rights.
Unlike at Westminster, the members bill system enables any member of the Scottish Parliament to progress a members’ bill for debate if they have the support or 18 MSPs from across three different parties. Now I have that support, I’ll be arguing public information rights should follow the public pound. That must be true for Scotland and the rest of the UK.
Katy Clark is a Scottish Labour MSP for the West Scotland Region.