There seems to be a renewed enthusiasm for the Freedom of Information Act (FOIA) to extend to the private sector. On the Daily Politics programme last week, Labour councillor Theo Blackwell made his case for the extension, claiming that “a complex web of private contracts” between local and central government reduces accountability. Coinciding with this call, a bill was introduced in Parliament that, if passed, would extend FOIA to NHS private contractors.
What is the Bill about?
On 8th October, Labour MP Grahame Morris introduced the Freedom of Information (Private Healthcare Companies) Bill 2013-14 to the House of Commons under the Ten Minute Rule. He said in his speech to Parliament that “private healthcare companies should not be permitted to hide behind a cloak of commercial confidentiality” and that “billions of pounds of taxpayers’ money is being awarded to private sector companies under barely transparent contracts”.
He continued: “Meanwhile, private companies are free to benefit by gaining detailed knowledge of public sector bodies through their use and submission of FOI requests. The same information is then used by the private sector to undercut or outbid the very same public sector bodies when contracts are tendered or put up for renewal.”
The purpose of the Bill is to bring about more transparency to private firms that provide public health services, and to also ensure that there is fair competition when private and public sector firms bid for NHS contracts.
The Bill is expected to have its Second Reading on 8th November 2013.
But aren’t there already contractual disclosure provisions in NHS contracts? Why the need for the Bill?
You can access information about NHS private providers through clinical commissioning groups. These groups comprise of GPs who are responsible for commissioning or buying health care services. Since commissioning groups are subject to the requirements of FOIA, a standard NHS contract may contain obligations of assistance and cooperation on the private provider to enable the commissioner to comply with its duties under FOIA. For example, according to a recent interview with Virgin Care’s head of innovation, Virgin Care does not have to comply with FOIA requests, but it does have to supply commissioners with information if they are sent one about its health services that they provide to the NHS.
But not everything is fine and dandy. Monitor, the sector regulator for health services in England, stated in its review for the Secretary of State for Health in March 2013 that despite having Freedom of Information requirements in NHS contracts with private and charitable providers, “it is not clear that this is operating effectively as yet, and other aspects of transparency do not apply across all types of provider”.
The effectiveness of FOIA contract clauses in general was raised on the Daily Politics programme. Damian Green, Minister for Police and Criminal Justice, was of the opinion that public sector bodies should ensure that their contracts with private providers contain these clauses. Yet when it was suggested that not all were being properly implemented, Mr Green replied rather unconstructively: “In that case, they should be.”
But who can ensure that disclosure clauses are contained in contracts with private providers? In response to the programme, Campaign for FOI tweeted that the Information Commissioner’s Office cannot enforce them.
Is it likely that the Bill will pass the Second Reading?
The Bill is certainly in for a rough ride. Last year, Mr Morris put forward an Early Day Motion, which proposed that private healthcare companies should be subject to FOIA. The motion was signed by 111 MPs, with the majority of support coming from fellow Labour MPs. Not one Conservative MP signed the motion.
The current government is unlikely to support the passing of the Bill. Commenting on the Justice Committee’s “Post-legislative scrutiny of the Freedom of Information Act 2000”, it indicated that FOIA was not going to be extended anytime soon and that the approach of ensuring that contracts contain disclosure provisions is here to stay:
“The Government expects that contractors will fully assist public authorities in meeting their current obligations under FOIA… contracts should include clear provisions in this regard, and stress that public authorities should not be reluctant in taking all necessary steps to ensure compliance.”
The government also suggested that any extension of FOIA would have a burdensome impact on businesses.
Few expect the Bill to gain enough support to pass yet the debate on whether FOIA should be extended to the private sector is unlikely to cease anytime soon.