Housing Associations and Public Contractors: Freedom of Information

Daniel Zeichner Excerpts

Wednesday 6th March 2019 Westminster Hall

[Daniel Zeichner (Cambridge) (Lab)]

It is a pleasure to serve with you in the Chair, Mr Betts. I congratulate my hon. Friend the Member for Hammersmith (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at the time did not agree with that and sadly—2015 did not see the return of a Labour Government—this woefully out-of-date position persists.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 members of the wider 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.

[Andy Slaughter]

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.

[Daniel Zeichner]

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.

[Mr Clive Betts (in the Chair)]

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