Housing Associations and Public Contractors: Freedom of Information

Tommy Sheppard Excerpts

Wednesday 6th March 2019 Westminster Hall

[Tommy Sheppard (Edinburgh East) (SNP)]

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 the hon. Member for Hammersmith (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.