Doing a tab sweep just now, I came across a post describing a Policy note issued on contracts and compliance with transparency principles by the Crown Commercial Service [Procurement Policy Note – Increasing the Transparency of Contract Information to the Public – Action Note 13/15 31 July 2015 ] that requires “all central government departments including their Executive Agencies and Non-Departmental Public Bodies (NDPBs)” (and recommends that other public bodies follow suit) to publish a “procurement policy note” (PPN) “in advance of a contract award, [describing] the types of information to be disclosed to the public, and then to publish that information in an accessible form” for contracts advertised after September 1st, 2015.
The publishers should “explore [make available, and update as required] a range of types of information for disclosure which might typically include:-
i. contract price and any incentivisation mechanisms
ii. performance metrics and management of them
iii. plans for management of underperformance and its financial impact
iv. governance arrangements including through supply chains where significant contract value rests with subcontractors
v. resource plans
vi. service improvement plans”.
The information so released may perhaps provide a hook around which public spending (transparency) data could be used to cross-check contract delivery. For example, “[w]here financial incentives are being used to drive performance delivery, these may also be disclosed and published once milestones are reached to trigger payments. Therefore, the principles are designed to enable the public to see a current picture of contractual performance and delivery that reflects a recent point in the contract’s life.” Spotting particular payments in transparency spending data as milestone payments could perhaps be used to cross-check back that those milestones were met in an appropriate fashion. Or where dates are associated in a contract with particular payments, this could be used to flag-up when payments might be due to appear in spending data releases, and raise a red flag if they are not?
Finally, the note further describes how:
[i]n-scope organisations should also ensure that the data published is in line with Open Data Principles. This means ensuring the data is accessible (ideally via the internet) at no more than the cost of reproduction, without limitations based on user identity or intent, in a digital, machine-readable format for interoperation with other data and free of restriction on use or redistribution in its licensing conditions
In practical terms, of course, how useful (if at all) any of this might be will in part determined by exactly what information is released, how, and in what form.
It also strikes me that flagging up what is required of a contract when it goes out to tender may still differ from what the final contract actually states (and how is that information made public?) And when contracts are awarded, where’s the data (as data) that clearly states who it was awarded to, in a trackable form, etc etc. (Using company numbers in contract award statements, as well as spending data, and providing contract numbers in spending data, would both help to make that sort of public tracking easier…)
Some rambling but possibly associated thoughts… I suggest you put Alice’s Restaurant on…
For some time now, I’ve had an uncomfortable feeling about the asymmetries that exist in the open data world as well as total confusion about the notion of transparency.
Part of the nub of the problem (for me) lies with the asymmetric disclosure requirements of public and private services. Public bodies have disclosure requirements (eg Local Government Transparency Code), private companies don’t. Public bodies disclose metrics and spend data, data that can be used in public contract tendering processes by private bodies against public ones tendering for the same service. The private body uses this information – and prices in a discount associated with not having to carry the cost of public reporting – into the bid. The next time the contract is tendered, the public body won’t have access to the (previously publicly disclosed) information that the private body originally had when making its bid. Possibly. I don’t know how tendering works. But from the outside, that’s how it appears to me. (Maybe there needs to be more transparency about the process?)
Open data is possibly a Big Thing. Who knows? Maybe it isn’t. Certainly the big consulting firms are calling it as something worth squillionty billionty of pounds. I’m not sure how they cost it. Maybe I need to dig through the references and footnotes in their reports (Cap Gemini’s Open Data Economy: Unlocking Economic Value by Opening Government and Public Data, Deloitte’s Open growth: Stimulating demand for open data in the UK or McKinsey’s Open data: Unlocking innovation and performance with liquid information). I don’t know how much those companies have received in fees for producing those reports, or how much they have received in consultancy fees associated with public open data initiatives – somehow, that spend data doesn’t seem to have been curated in a convenient way, or as a #opendatadata bundle? – but I have to assume they’re not doing it to fleece the public bodies and tee up benefits for their other private corporate clients.
Reminds me – I need to read Owen Boswarva’s Who supports the privatisation of Land Registry? and ODUG benefits case for open data release of an authoritative GP dataset again… And remind myself of who sits on the Open Data User Group (ODUG), and other UK gov departmental transparency boards…
And read the FTC’s report Data Brokers: A Call For Transparency and Accountability…
Just by the by, one thing I’ve noticed about a lot of opendata releases is that, along with many other sorts of data, they are most useful when aggregated over time or space, and/or combined with other data sets. Looking at the month on month reports of local spending data from my local council is all very well, but it gets more interesting when viewed over several months or years. Looking at the month on month reports of local spending data from my local council is all very well, but it gets more interesting when looking at spend across councils, as for example in the case of looking at spend to particular companies.
Aggregating public data is one of the business models that helps create some of the GDP figure that contributes to the claimed, anticipated squillionty billionty pounds of financial benefit that will arise from open data – companies like opencorporates aggregating company data, or Spend Network aggregating UK public spending data who hope to start making money selling products off the back of public open data they have curated. Yes – I know a lot of work goes in to cleaning and normalising that data, and that exploiting the data collection as a whole is what their business models are about – and why they don’t offer downloads of their complete datasets, though maybe licenses require they do make links to, or downloads of, the original (“partial”) datasets available?
But you know where I think the real value of those companies lies? In being bought out. By Experian, or Acxiom (if there’s even a hint of personally identifiable data through reverse engineering in the mix), or whoever… A weak, cheap, cop out business model. Just like this: Farmers up in arms over potential misuse of data. (In case you missed it, Climate Corporation was one of the OpenData500 that aggregated shed loads of open data – according to Andrew Stott’s Open Data for Economic Growth report for the World Bank, Climate Corp “uses 60 years of detailed crop yield data, weather observations from one million locations in the United States and 14 terabytes of soil quality data – all free from the US Government – to provide applications that help farmers improve their profits by making better informed operating and financing decisions”. It was also recently acquired by Monsanto – Monsanto – for just under a billion US $. That’s part of the squillionty billionties I guess. Good ol’ open data. Monsanto.)
Sort of related to this – that is, companies buying others to asset strip them for their data – you know all that data of yours locked up in Facebook and Google? Remember MySpace? Remember NNTP? According to the Sophos blog, Just Because You Don’t Give Your Personal Data to Google Doesn’t Mean They Can’t Acquire It. Or that someone else might buy it.
And as another aside – Google – remember Google? They don’t really “read” your email, at least, people don’t, they just let algorithms process it so the algorithms can privately just use that data to send you ads, but no-one will ever know what the content of the email was to trigger you getting that ad (‘cos the cookie tracking, cookie matching services can’t unpick ad bids, ad displays, click thrus, surely, can they?!), well – maybe there are side effects: Google tips off cops after spotting child abuse images in email (for some reason, after initially being able to read that article, my browser can’t load it atm. Server fatigue?). Of course, if Google reads your ads for blind business purposes and ad serving is part of that blind process you accept it. But how does the law enforcement ‘because we can even though you didn’t warrant us to?’ angle work? Does the Post Office look inside the envelope? Is surveillance actually part of Google’s business model?
If you want to up the paranoia stakes, this (from Ray Corrigan, in particular: “Without going through the process of matching each government assurance with contradictory evidence, something I suspect would be of little interest, I would like to draw your attention to one important misunderstanding. It seems increasingly to be the belief amongst MPs that blanket data collection and retention is acceptable in law and that the only concern should be the subsequent access to that data. Assertions to this effect are simply wrong.”) + that. Because one day, one day, they may just find your name on an envelope of some sort under a tonne of garbage. Or an algorithm might… Kid.
But that’s not what this post is about – what this post is about is… Way back when, so very long ago, not so very long ago, there was a license called GPL. GPL. And GPL was a tainting license. findlaw describes the consequences of reusing GPL licensed code as follows: Kid, ‘if a user of GPL code decides to distribute or publish a work that “in whole or in part contains or is derived from the [open source] or any part thereof,” it must make the source code available and license the work as a whole at no charge to third parties under the terms of the GPL (thereby allowing further modification and redistribution).
‘In other words, this can be a trap for the unwary: a company can unwittingly lose valuable rights to its proprietary code.’
Now, friends, GPL scared people so much that another license called LGPL was created, and LGPL allowed you to use LGPL licensed code without fear of tainting your own code with the requirement to open up your own code as GPL would require of it. ‘Cos licenses can be used against you.
And when it comes to open data licenses, they seem to be like LGPL. You can take open public data and aggregate it, and combine it, and mix it and mash it and do what you like with it and that’s fine… And then someone can come along buy that good work you’ve done and do what they want with it. Even Monsanto. Even Experian. And that’s good and right, right? Wrong. The ODUG. Remember the ODUG? The ODUG is the Open Data User Group that lobbies government for what datasets to open up next. And who’s on the ODUG? Who’s there, sitting there, on the ODUG bench, right there, right next to you?
Kid… you wanna be the all-open, all-liberal open data advocate? You wanna see open data used for innovation and exploitation and transparency and all the Good Things (big G, big T) that open data might be used for? Or you wanna sit down on the ODUG bench? With Deloitte, and Experian, and so on…
And if you think that using a tainting open data license so anyone who uses that data has to share it likewise, aggregated, congregated, conjugated, disaggregated, mixed, matched, joined, summarised or just otherwise and anyways processed, is a Good Thing…? Then kid… they’ll all move away from you on the bench there…
Because when they come to buy you, they won’t your data to be tainted in any way that means they’ll have to give up the commercial advantage they’ll have from buying up your work on that open data…
But this post? That’s not what this post is about. This post about holding companies to account. Open data used to hold companies to account. There’s a story to be told that’s not been told about Dr Foster, and open NHS data and fear-mongering and the privatisation of the NHS and that’s one thing…
But another thing is how government might use data to help us protect ourselves. Because government can’t protect us. Government can’t make companies pay taxes and behave responsibly and not rip off consumers. Government needs our help to do that. But can government help us do that too? Protect and Survive.
There’s a thing that DECC – the Department of Energy and Climate Change – do, and that’s publish statistics about domestic energy price statistics and industrial energy price statistics and road fuel and other petroleum product price statistics, and they’re all meaningless. Because they bear little resemblance to spot prices paid when consumers pay their domestic energy bills and road fuel and other petroleum product bills.
To find out what those prices are you have to buy the data from someone like Experian, from something like Experian’s Catalist fuel price data – daily site retail fuel prices – data product. You may be able to caluclate the DECC statistics from that data (or you may not) but you certainly can’t go the other way, from the DECC statistics to anything like the Experian data.
But can you go into your local library and ask to look at a copy of the Experian data? A copy of the data that may or may not be used to generate the DECC road fuel and other petroleum product price statistics (how do they generate those statistics anyway? What raw data do they use to generate those statistics?)
Can you imagine ant-eye-ant-eye-consumer data sets being published by your local council or your county council or your national government that can be used to help you hold companies to account and help you tell them that you know they’re ripping you off and your council off and your government off and that together, you’re not going to stand for it?
Can you imagine your local council publishing the forecourt fuel prices for one petrol stations, just one petrol station, in your local council area every day? And how about if they do it for two petrol stations, two petrol stations, each day? And if they do it for three forecourts, three, can you imagine if they do it for three petrol stations…? And can you, can you imagine prices for 50 petrol stations a day being published by your local council, your council helping you inform yourself about how you’re being manipulated, can you imagine…? (It may not be so hard – food hygiene ratings are published for food retail environments across the England, Northern Ireland and Wales…
So let’s hear it for open data, and how open data can be used to hold corporates to account, and how public bodies can use open data to help you make better decisions (which is a good neoliberal position to take and one which the other folk on the bench tell you that that’s what you want and that and markets work, though they also fall short of telling you that the models say that markets work with full information but you don’t have the information, and even if you did, you wouldn’t understand it, because you don’t really know how to make a good decision, but at the end of the day you don’t want a decision, you just want a good service fairly delivered, but they don’t tell that it’s all right to just want that…)
And let’s hear it for public bodies making data available whether it’s open or not, making it available by paying for it if they have to and making it available via library services so that we can start using it to start holding companies to account and start helping our public services, and ourselves, protect ourselves from the attacks being mounted on us by companies, and their national government supporters, who take on debt, and who allow them to take on debt, to make dividend payouts but not capital investment and subsidise the temporary driving down of prices (which is NOT a capital investment) through debt subsidised loss leading designed to crush competition in a last man standing contest that will allow monopolistic last man standing price hikes at the end of it…
And just remember, if there’s anything you want, you know where you can get it… At Alice’s… or the library… only they’re shutting them down, aren’t they…? So that leaves what..? Google?
[Thinkses in progress – riffing around the idea that transparency is not reporting. This is all a bit confused atm…]
UK Health Secretary Jeremy Hunt was on BBC Radio 4’s Today programme today talking about a new “open and honest reporting culture” for UK hospitals. Transparency, it seems, is about publishing open data, or at least, putting crappy league tables onto websites. I think: not….
The fact that a hospital has “a number” of mistakes may or may not be interesting. As with most statistics, there is little actual information in a single number. As the refrain on the OU/BBC co-produced numbers programme More or Less goes, ‘is it a big number or a small number?’. The information typically lies in the comparison with other numbers, either across time or across different entities (for example, comparing figures across hospitals). But comparisons may also be loaded. For a fair comparison we need to normalise numbers – that is, we need to put them on the same footing.
[A tweet from @kdnuggets comments: ‘The question to ask is not – “is it a big number or a small number?”, but how it compares with other numbers’. The sense of the above is that such a comparison is always essential. A score of 9.5 in a test is a large number when the marks are out of ten, a small one when out of one hundred. Hence the need for normalisation, or some other basis for generating a comparison.]
The above cartoon from web comic XKCD demonstrates this with a comment about how reporting raw numbers on a map often tends to just produce a population map illustrates this well. If 1% of town A with population 1 million has causal incidence [I made that phrase up: I mean, the town somehow causes the incidence of X at that rate] of some horrible X (that is, 10,000 people get it as a result of living in town A), and town B with a population of 50,000 (that is, 5,000 people get X) has a causal incidence of 10%, a simple numbers map would make you fearful of living in town A, but you’d be likely worse off moving to town B.
Sometimes a single number may appear to be meaningful. I have £2.73 in my pocket so I have £2.73 to spend when I go to the beach. But again, there is a need for comparison here. £2.73 needs to be compared against the price of things it can purchase to inform my purchasing decisions.
In the opendata world, it seems that just publishing numbers is taken as transparency. But that’s largely meaningless. Even being able to compare numbers year on year, or month on month, or hospital on hospital, is largely meaningless, even if those comparisons can be suitably normalised. It’s largely meaningless because it doesn’t help me make sense of the “so what?” question.
Transparency comes from seeing how those numbers are used to support decision making. Transparency comes from seeing how this number was used to inform that decision, and why it influenced the decision in that way.
Transparency comes from unpacking the decisions that are “evidenced” by the opendata, or other data not open, or no data at all, just whim (or bad policy).
Suppose a local council spends £x thousands on an out-of area placement several hundred miles away. This may or may not be expensive. We can perhaps look at other placement spends and see that the one hundred of miles away appears to offer good value for money (it looks cheap compared to other placements; which maybe begs the question why those other placements are bing used if pure cost is a factor). The transparency comes from knowing how the open data contributed to the decision. In many cases, it will be impossible to be fully transparent (i.e. to fully justify a decision based on opendata) because there will be other factors involved, such as a consideration of sensitive personal data (clinical decisions based around medical factors, for example).
So what that there are z mistakes in a hospital, for league table purposes – although one thing I might care about is how z is normalised to provide a basis of comparison with other hospitals in a league table. Because league tables, sort orders, and normalisation make the data political. On the other hand – maybe I absolutely do want to know the number z – and why is it that number? (Why is it not z/2 or 2*z? By what process did z come into being? (We have to accept, unfortunately, that systems tend to incur errors. Unless we introduce self-correcting processes. I absolutely loved the idea of error-correcting codes when I was first introduced to them!) And knowing z, how does that inform the decision making of the hospital? What happens as a result of z? Would the same response be prompted if the number was z-1, or z/2? Would a different response be in order if the number was z+1, or would nothing change until it hit z*2? In this case the “comparison” comes from comparing the different decisions that would result from the number being different, or the different decisions that can be made given a particular number. The meaning of the number then becomes aligned to the different decisions that are taken for different values of that number. The number becomes meaningful in relation to the threshold values that the variable corresponding to that number are set at when it comes to triggering decisions.)
Transparency comes not from publishing open data, but from being open about decision making processes and possibly the threshold values or rates of change in indicators that prompt decisions. In many cases the detail of the decision may not be fully open for very good reason, in which case we need to trust the process. Which means understanding the factors involved in the process. Which may in part be “evidenced” through open data.
Going back to the out of area placement – the site hundreds of miles away may have been decided on by a local consideration, such as the “spot price” of the service provision. If financial considerations play a part in the decision making process behind making that placement, that’s useful to know. It might be unpalatable, but that’s the way the system works. But it begs the question – does the cost of servicing that placement (for example, local staff having to make round trips to that location, opportunity cost associated with not servicing more local needs incurred by the loss of time in meeting that requirement) also form part of the financial consideration made during the taking of that decision? The unit cost of attending a remote location for an intervention will inevitably be higher than attending a closer one.
If financial considerations are part of a decision, how “total” is the consideration of the costs?
That is very real part of the transparency consideration. To a certain extent, I don’t care that it costs £x for spot provision y. But I do want to know that finance plays a part in the decision. And I also want to know how the finance consideration is put together. That’s where the transparency comes in. £50 quid for an iPhone? Brilliant. Dead cheap. Contract £50 per month for two years. OK – £50 quid. Brilliant. Or maybe £400 for an iPhone and a £10 monthly contract for a year. £400? You must be joking. £1250 or £520 total cost of ownership? What do you think? £50? Bargain. #ffs
Transparency comes from knowing the factors involved in a decision. Transparency comes from knowing what data is available to support those decisions, and how the data is used to inform those decisions. In certain cases, we may be able to see some opendata to work through whether or not the evidence supports the decision based on the criteria that are claimed to be used as the basis for the decision making process. That’s just marking. That’s just checking the working.
The transparency bit comes from understanding the decision making process and the extent to which the data is being used to support it. Not the publication of the number 7 or the amount £43,125.26.
Reporting is not transparency. Transparency is knowing the process by which the reporting informs and influences decision making.
I’m not sure that “openness” of throughput is a good thing either. I’m not even sure that openness of process is a Good Thing (because then it can be gamed, and turned against the public sector by private enterprise). I’m not sure at all how transparency and openness relate? Or what “openness” actually applies to? The openness agenda creeps (as I guess I am proposing here in the context of “openness” around decision making) and I’m not sure that’s a good thing. I don’t think we have thought openness through and I’m not sure that it necessarily is such a Good Thing after all…
What I do think we need is more openness within organisations. Maybe that’s where self-correction can start to kick in, when the members of an organisation have access to its internal decision making procedures. Certainly this was one reason I favoured openness of OU content (eg Innovating from the Inside, Outside) – not for it to be open, per se, but because it meant I could actually discover it and make use of it, rather than it being siloed and hidden away from me in another part of the organisation, preventing me from using it elsewhere in the organisation.
A piece of contextualisation in an interview piece with Green MP Caroline Lucas in Saturday’s Guardian (I didn’t do this because I thought it was fun) jumped out at me as I read it: More than 50 energy company employees have been seconded to the government free of charge, and dozens of them to the department of energy and climate change.
How about the gov.uk site?
(I don’t know what’s going in the fight between GDS and the data.gov.uk folk ito getting central gov #opendata info discoverable on the web, but the http://www.gov.uk domain seems to be winning out, not least because for departments who’re in that empire, that’s where any data that eventually linked to from data.gov.uk will actually be published?)
So – it seems folk have been FOIing this sort of information, but it doesn’t look as if this sort of information is being published according to a regular schedule under an #opendata transparency agenda.
Anyone would thing that the UK government wasn’t in favour of a little bit of light being shone on lobbying activity…
I guess I could put a request in to the ODUG (Open Data User Group) for this data to be released as open data, but my hunch is it’s not really the sort of thing they’re interested in (I get the feeling they’re not about open data for transparency, but (perhaps unfairly…?!) see them more as a lobbying group (ODUG membership) for companies who can afford to buy data but who would rather the tax payer pays for its collection and the government then gifts it to them).
More direct would be to find a way of automating FOI requests using something like WhatDoTheyKnow that would fire off an FOI request to each central government department once a month asking for that previous months’ list of secondments into and out of that department in the preceding month (or in the month one or two months preceding that month if they need a monthly salary payment cycle or two for that data to become available).
Of course, it does seem a bit unfair that each government department should have to cover the costs of these requests, but as it stands I can’t make an FOI request of companies that choose to engage in this sort of presumably public service.
Making private companies offering public services under contract subject to FOI does seem to be on the agenda again though, after being knocked back around this time last year?:
An extension to the scope of the FOI Act was proposed a few weeks ago in the Public Bill Committee debate of the morning of Tuesday 18 March 2014 on the Criminal Justice & Courts Bill, columns 186-193:
Dan Jarvis: I beg to move amendment 37, in clause 6, page 6, line 29, at end insert—
‘(1A) The Code of Practice must include a requirement that a person carrying out electronic monitoring who is not a public authority as defined by section 3 of the Freedom of Information Act 2000 shall provide information in respect of the carrying out of electronic monitoring in the same manner as if they were such a public authority.’.
The Chair: With this it will be convenient to discuss amendment 38, in schedule 4, page 73, line 25, at end insert—
‘(1A) Where the Secretary of State enters into a contract with another person under paragraph 1(1), and that person is not a public authority for the purposes of section 3 of the Freedom of Information Act 2000, that person shall be designated by the Secretary of State as a public authority for the purposes of that section in relation to that contract.’.
I remind the Committee that this group is about freedom of information provisions as they apply to aspects of the Bill. Members will have the opportunity to debate the detail of secure colleges later.
Dan Jarvis: I serve notice that, unless sufficient assurances are received, we intend to put the amendments to a vote. [ Interruption. ] Dramatic! I sensed for a moment that there was a higher authority raising a concern about these amendments, but I shall plough on regardless, confident in the knowledge that they are true and right.
Anyone who knows the story of Jajo the rabbit will understand what I am about to say. For those members of the Committee who do not know, Jajo was the pet rabbit successfully registered as a court translator and then booked in for shifts following the Ministry of
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Justice’s outsourcing of language service contracts. Jajo’s short-lived translation career says less about his talent and much more about the importance of ensuring that public contracts delivered by private providers are properly managed.
As was touched on, Ministers now have to manage another fall-out. Two private providers of electronic monitoring overcharged the taxpayer by millions of pounds for tagging offenders who had died or moved abroad, or who were already back in prison. That underlines the case for the amendments.
Both amendments would seek to bring non-public providers of public services contracted out under the Bill within the scope of the Freedom of Information Act. Amendment 37 relates to clause 6 and the code of practice that would be issued by the Secretary of State on the processing of data related to electronic monitoring. It would require anyone carrying out monitoring related to the clauses to comply with FOI requests in the same way as public bodies do. Amendment 38 relates to schedule 4 and the arrangements for contracting out secure colleges, which are detailed in part 2. It would require anyone contracted to provide a secure college to comply with freedom of information in the same way. Both our proposals are worthy of consideration by the Committee.
We all know that the landscape of how public services are delivered is changing. The Government spend £187 billion on goods and services with third parties each year, about half of which is estimated to be on contracting out services. About half of all spending on public services now ends up in private providers’ hands and more and more private providers are bidding to take on the responsibility and financial rewards that come with large-scale public contracts. As outsourcing is stepped up, more and more information about public services and public money is being pulled out of the public domain. That presents a particular challenge that we must tackle.
As the Information Commissioner told the Justice Committee last year,
“if more and more services are delivered by alternative providers who are not public authorities, how do we get accountability?”
The rewards that third parties stand to gain need to go hand in hand with the duties of transparency and information sharing. The public should be able to ask about how, and how well, the service they are paying for is being run.
The Freedom of Information Act does provide for supply-chain companies to be considered to be holding information on behalf of a public authority. In practice, however, contracted providers in the justice sector are not subject to anywhere near the same transparency requirements as publicly-run services. Private prisons, for example, are not subject to FOI in the same way as public prisons and the experience of G4S, Serco and others will have influenced many other companies not to be as forthcoming as they might have been. That is why we need to build freedom of information into the contracts that the Government make with third parties.
The Committee will be aware that such an approach was recommended by the Public Accounts Committee in its excellent report published last week. It made the
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point that many Departments are not providing information on how those contracts work on the grounds of commercial confidentiality. The public will not accept that excuse for much longer.
Let me conclude my remarks by offering the Committee a final quote. Someone once said:
“Information is power. It lets people hold the powerful to account”
and it should be used by them to hold their
“public services to account”.
I agree with the Prime Minister. Two years ago, he spoke about
“the power of transparency”
“why we need more of it.”
He also spoke of leading
“the most transparent Government ever.”
Labour has pledged that the next Labour Government will deal with the issue by bringing companies providing public contracts into the scope of FOI legislation.
Freedom of information can be uncomfortable. It can shed light on difficult issues and be problematic for Government Ministers, but that is the point. The Committee has the opportunity today to improve the Bill and to get a head start.
Dr Huppert: I will not detain the Committee. I share the concern about the lack of FOI for private organisations providing public services. My colleagues and I have expressed concerns about that for many years, and the previous Government were not very good at accepting that. It is good news that the Labour party may undo that error.
Mr Slaughter: Can the hon. Gentleman say what steps he and the coalition have taken to extend FOI in the past four years?
Dr Huppert: Not as many as I would like, but we have seen progress in some areas; we did not see any at all when the hon. Gentleman was a Minister. I hope we will see the correct drive. I share the concern that we need transparency when public services are delivered by private companies. They must not be shielded. I look forward to hearing what the Minister has to say, because he has commented on such issues before.
It is important that the matter should be dealt with on a global scale. I think the shadow Minister would agree that the case is broader. I hope to hear from the Minister that there will be more work to look at how the issue can be addressed more generally, rather than just in a specific case. That would probably require amendment of the Freedom of Information Act. That is probably the best way to resolve the issue, rather than tacking it on to this area, but I absolutely share the concerns. I hope we can see more transparency, both from the Government—we are seeing that—and from the private sector as it performs public functions.
Yasmin Qureshi: The Justice Committee, of which I am a member, looked into the Freedom of Information Act and how it has been operating since it was passed many years ago. We spoke to different groups of people,
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representatives of councils and local authorities, the Information Commissioner and pressure groups. Generally, the view was that the Freedom of Information Act has been a force for good. The thing that people mentioned time and again was the fact that it applies only to public authorities and has a narrow remit in private companies. A lot of concern was expressed about that.
As my hon. Friend the Member for Barnsley Central said, just under £200 billion is being spent by the Government for private companies to carry out public work. The number of outsourcings could increase, especially in the criminal justice system. In the probation service there will be contracting out and privatisation, as well as changes in the criminal justice system in relation to legal aid and suchlike. We have concerns about the criminal justice system and the number of companies that will be carrying out work that the state normally does. It is an important issue.
Will the Minister give us an undertaking for whenever Government money is given to carry out work on behalf of the Government? Local authorities and Government Departments have to provide information, and it should be the same for private companies. At the moment, as the shadow Minister mentioned, the agencies providing some of the public work give some information, but it is not enough.
It is often hard to get information from private companies. It is important for the country that we know where public money is being spent and how private companies respond to such things. We can have party political banter, but freedom of information was introduced many years ago and has been working well. Freedom of information needs to be extended in light of the new circumstances. I ask for a clear commitment from the Government that they will encapsulate that in the Bill. They now have that opportunity; the Labour party has said that, if it was in government, it would certainly do so. The lacunae and the gaps would be addressed by the amendment, which would make it clear exactly how the regime applies. [Interruption.]
The Chair: I apologise for the background noise. We are looking into the cause.
Jeremy Wright: Thank you, Mr Crausby. I hope Jajo the rabbit is not responsible.
As the hon. Member for Barnsley Central said, amendment 37 seeks to introduce a requirement as to the contents of the code of practice that the Secretary of State will issue under proposed new section 62B of the Criminal Justice and Court Services Act 2000, which is to be introduced through clause 6. The Secretary of State would have to include provisions in the code of practice requiring providers of outsourced electronic monitoring services to make information available in the same manner as if they were subject to the provisions of the Freedom of Information Act. The aim of the amendment seems essentially to extend the Act to providers of electronic monitoring not already subject to its provisions.
Amendment 38 has the same basic intention in that it seeks to extend the Freedom of Information Act to providers of secure colleges that have entered a contract with the Secretary of State to do so under schedule 4. The approach differs, however, because amendment 38
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would extend the Act directly, whereas amendment 37 seeks to extend its obligations through code of practice guidance.
In other words, both amendments would require private providers not currently subject to the Freedom of Information Act to make information available both in response to FOI requests and proactively through publication schemes. Section 5 of the Act already provides a power to extend the Act’s provisions to contractors providing public services. For reasons I will try to outline, the Government do not currently propose to adopt that approach and are adopting an alternative method to ensure transparency. I am aware, however, of the long-standing and serious concerns raised on the position under the Act of private providers of public services. It might help the hon. Member for Hammersmith to know that the Government are committed to, and have taken steps to extend, the Act. More than 100 additional organisations have been included since 2010, and we are considering other ways in which its scope may be widened.
The issue of outsourced public services was considered in some detail during post-legislative scrutiny of the Freedom of Information Act by the Select Committee on Justice in 2012. I do not know whether the hon. Member for Bolton South East was a member of the Committee of that time, but the Committee rightly issued a reminder that
“the right to access information is crucial to ensuring accountability and transparency for the spending of taxpayers’ money”.
The Committee recommended the use of contractual provisions, rather than the formal extension of the Act, to ensure that transparency and accountability are maintained. In particular, the Committee said:
“We believe that contracts provide a more practical basis for applying…outsourced services than partial designation of commercial companies under section 5 of the Act”.
The Committee also feels that
“the use of contractual terms to protect the right to access information is currently working relatively well.”
The Government’s approach is consistent with that recommended by the Justice Committee.
In addition to information being made available proactively, the Government are taking steps to issue a revised code of practice under section 45 of the Freedom of Information Act to promote transparency on outsourced public services in response to FOI requests. The code of practice will be issued later this year and will promote and encourage the use and enforcement of contractual obligations to ensure that private bodies not subject to the Act provide appropriate assistance where information about outsourced public services is requested from bodies that are subject to the Act.
The Government recognise that only a small amount of information held by private providers is currently often formally subject to the Act. Our code of practice will encourage public authorities to go further, to interpret their freedom of information obligation broadly and to release more information on a voluntary basis, where it would be in the public interest to do so. In the event of non-compliance, it will also be possible for the Information Commissioner to issue and publish a practice recommendation setting out steps that, in his view, the public authority should take to promote conformity with the guidance.
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Mr Slaughter: I seem to remember taking part in the Westminster Hall debate arising out of the Justice Committee’s deliberation and I do not think that it was very happy with the approach that the Government are taking, particularly where they are seeking to restrict freedom of information further. Does the hon. Gentleman accept on the basis of what he has just said that this will not be a level playing field and that the same requirements that apply to public bodies will not apply to private organisations undertaking an effectively identical role? Does he accept that, whatever the merits of his scheme, it does not to far enough and does not address the comments of my hon. Friend the Member for Barnsley Central?
Jeremy Wright: The hon. Gentleman will recognise that the organisations we are talking about extending the provisions of the Act to cover vary hugely in size and level of resources. The concern is to draw the appropriate balance between giving correct access to information and not imposing intolerable burdens on organisations, particularly smaller ones. That is the balance that has to be struck. We are looking at ways in which we can continue to make public authorities responsible for supplying information but ensure that it comes from the place where it originated, which may be those other organisations.
Mr Slaughter: That is a different argument and one that is often tried. It was tried in relation to universities and to the smaller district councils much beloved of the hon. Member for Bromley and Chislehurst. There are already limitations within the Act. There are safeguards for organisations in terms of the amount of time and cost. Why are they not sufficient?
Jeremy Wright: As I said, there is a balance to be struck. We attempt to strike that balance correctly with our proposals. If I can explain what we want to do a little more fully, perhaps the hon. Gentleman will be reassured—although frankly I doubt it. There is an opportunity for us to look at the issue in a sensible way with the code of practice. Applying our forthcoming code of practice guidance across the public sector will ensure that transparency and response to freedom of information requests will be maintained in a consistent way. This is preferable—I agree with my hon. Friend the Member for Cambridge—to the more piecemeal approach promoted by amendments 37 and 38.
The success of our own code of practice will be monitored by the Ministry of Justice and the Information Commissioner. We were clear in our response to post-legislative scrutiny of the Freedom of Information Act that, should this approach yield insufficient dividends, we will consider what other steps are necessary. In summary, we are committed to ensuring transparency in relation to all outsourced public services, including electronic monitoring and secure colleges. We are taking steps to ensure that through the code of practice to be issued later this year. On that basis, I invite the hon. Gentleman to withdraw his amendment.
Yasmin Qureshi: The Minister referred to the Select Committee on Justice and its recommendations. As you know, without going into the detail of that discussion, Select Committee recommendations sometimes tend to
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be compromises. At the time, three issues were in the mind of the Select Committee. First, it did not realise that a legislative opportunity would come so soon in which to put the measure in a more codified way with a clearer legal obligation. Secondly, there was quite a lot of discussion about private companies.
The Select Committee accepted that the Freedom of Information Act should not apply to purely private companies carrying out purely private work; it was not really arguing against that. However, here we have an opportunity to codify once and for all in legislation the provision that the FOIA should apply whenever public money is paid to a private company to carry out work. That would be a fairly straightforward provision. I do not see why we need to go down the complicated route of using a code of practice, putting in a specific provision in a new contract each time something happens. Why can we not just have a general provision that applies to every situation?
Jeremy Wright: I was a member of the Justice Committee before the hon. Lady was, so I understand her point that recommendations of the Select Committee are a matter of discussion and compromise. However, they are made on a cross-party basis, and paid all the more attention to for that reason. I quoted directly from the Select Committee’s conclusions in what I said earlier.
On the hon. Lady’s other point, this may be an earlier legislative opportunity than the Select Committee anticipated, but of course, it is only an opportunity in relation to specific policies. Again, I rather agree with the point made earlier by my hon. Friend the Member for Cambridge: there is an argument for addressing the issue, not on a piecemeal basis, but more comprehensively.
The hon. Lady’s final point is that the approach that we have set out—using a code of practice—is inadequate and that a statutory approach should be introduced by amending primary legislation. An initial approach of using a code of practice is a sensible one. She will recognise that amendment 37, tabled by the hon. Member for Barnsley Central, deals with a requirement in a code of practice, not primary legislation. Amendment 38 is different, but in relation to electronic monitoring, on which a number of concerns have been expressed, the hon. Gentleman’s chosen vehicle is a code of practice. The code of practice approach appears to be welcomed by both sides of the Committee.
Dan Jarvis: I have listened carefully to the Minister’s response. Clearly, we will want to look carefully at the detail of what he has said about a code of practice.
I agree with my hon. Friend the Member for Bolton South-East that the Committee has an opportunity this morning to make progress on redefining the freedom of information. I have heard the Minister’s response to that point, but the reality is that the move would be popular with the public.
There is no doubt that the landscape in which public services are delivered is changing. The Opposition have pledged to reform freedom of information if we are in government from 2015. I am mindful of the Prime Minister’s comments, which I quoted earlier. He said:
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“Information is power. It lets people hold the powerful to account”,
and it should be used by them to hold their public services to account.
Mike Kane: Does my hon. Friend agree that, as the contracting out of public services expands, the public’s right to information shrinks?
Dan Jarvis: I agree absolutely. There is a degree of inevitability that we will see change in the area. The debate is about how we do it, and it is important that we have that debate. We have tabled the amendments partly so that we can take the opportunity to debate such issues.
Mr Slaughter: There is another point here, which is that the Ministry of Justice is particularly vulnerable on the issue. We have had the privatisation of the probation service and the scandals regarding tagging. We will come to later in the Bill to proposals about the externalisation of the collection of fines and other matters. First, that is going on wholesale in the Department, and secondly, it is defective in many aspects. It is particularly relevant that the Minister should accept that the proposals in the Bill are not sufficient.
Dan Jarvis: My hon. Friend is right. In the context of the delivery of public services within the Ministry of Justice remit, this is a particularly relevant, timely and important issue. It has been incredibly useful to have the opportunity to debate it owing to the tabling of the amendments.
I mentioned that I was mindful of the Prime Minister’s comments, and I am mindful of the fact that the Justice Secretary has also indicated a desire to reform freedom of information. Given that there is a general acknowledgment that the status quo is not acceptable and despite what the Minister has said in response to our amendment, I will press it to a vote.
The amendment was defeated.
An hour or so later, the government took this line:
Freedom of Information Act
23. Lindsay Roy (Glenrothes) (Lab): What plans he has to bring forward legislative proposals to expand the scope of the Freedom of Information Act 2000.
The Minister of State, Ministry of Justice (Simon Hughes): There has been good progress in extending the implementation of the Freedom of Information Act because the coalition Government pledged to extend its scope to provide greater transparency. We extended it in 2010 to academies, in 2011 to the Association of Chief Police Officers, the Financial Ombudsman Service and the Universities and Colleges Admissions Service, and last year to 100 companies wholly owned by more than one public authority. The next item on the agenda is to do with Network Rail, and we are awaiting a view from the Department for Transport as to whether it thinks it would be appropriate for that to be implemented this year.
Lindsay Roy: What benefits have accrued to the Government and citizens from the implementation of the Act, and when does the Minister plan to extend its scope further?
Simon Hughes: We intend to extend it further as soon as is practical. One specific issue that I hope will be of interest to the hon. Gentleman—as it is to colleagues of his, including those who have come to see me about it—is that we intend to publish a revised code of practice to make sure that private companies that carry out public functions have freedom of information requirements in their contracts and go further than that. We hope that that will be in place by the end of this year.
Mr Mark Harper (Forest of Dean) (Con): There is one area where the Minister should perhaps look at narrowing the scope of the Act, because my understanding is that requests can be made by anybody anywhere on the face of the earth; they do not have to be British citizens. It is not the role of the British Government to be a taxpayer-funded research service for anyone on the globe. May I suggest that he narrow the scope to those for whom the Government work—citizens of our country?
Simon Hughes: I well understand my hon. Friend’s point. There will be two consultations this year: first, on precisely such issues about the scope of the current legislation to make sure that it is not abused while we retain freedom of information as a principle of Government; and secondly, on extending it to other areas where we have not gone so far.
Dr Huppert:I read out the quote from someone who has made the position clear when it comes to private companies carrying out public functions. Indeed, the code of practice has exactly the wording used in amendment 11, which the hon. Gentleman supported when we debated it on Tuesday. I do not want to take up too much of the Chairman’s kindness to discuss an issue that was rejected at that point, but it is happening as we wanted.
The matter was also touched upon a couple of days later in a Public Bill Committee on the Criminal Justice and Courts Bill (Official Report, Thursday 20 March 2014, 257-259) where accountability around public contracts delivered by private provides was being discussed:
Mr Slaughter: Absolutely not. I hope that the hon. Gentleman has read the article about Jago the rabbit that my hon. Friend the Member for Barnsley Central (Dan Jarvis) and I wrote for The Independent yesterday [It’s time we extended Freedom of Information to public services run by private companies – just ask Jago the Rabbit], which dealt with what should be done, which is to bring these companies within the ambit of FOI, and what the Minister of State did—with his usual skill, shall we say?—at Justice questions on Tuesday. He implied that that was what was going to happen, whereas in fact he was doing nothing more than putting round the line that the Cabinet Office has already indicated.
If I am wrong about that, I will give way in a moment and the hon. Gentleman can come back to me, but my understanding is that the Government—both parts of it, as long as they are just about coalescing—are of the view that the contracts that are drawn up should include this notional transparency. That is to say that they will encourage public authorities to encourage private companies to put clauses into contracts that will expose as much as possible, within the realms of commercial confidentiality. So the contracts will be open, with publication on websites and so forth of as much information about the contract as the two parties think fit. What we will not have is a duty on those private companies—in so far as they are carrying out public functions—to comply with the terms of the Freedom of Information Act, as would be the case in the public sector.
I accept that they are two sides of the same coin. On the one hand, of course it is a good idea that the information is made available voluntarily, but if it is not—either because the company does not choose to do so or because the contract is not drafted sufficiently well to ensure that it must—the citizen must have the right, through FOI, to require that information to be made available. As far as I am concerned, that is not what was said on Tuesday. I know that there is consultation going on, but if it is the intention of the Government—at least the Liberal Democrat part of the Government—to follow the line taken by my right hon. Friend the Member for Tooting (Sadiq Khan), the shadow Lord Chancellor, which he has repeated often in recent months, and require all those private companies performing public functions to come within the requirements of the Freedom of the Information Act, I would be pleased if the hon. Gentleman said so now.
Mr Slaughter:I take from that comment that even the hon. Gentleman does not understand what the Minister of State, Ministry of Justice, the right hon. Member for Bermondsey and Old Southwark, says, so opaque is it. If nobody, including the Minister, is going to answer my question, the answer will no doubt come out in the wash on a later occasion. However, it seems to me that that is not what is being promised. If it were, the Minister would be jumping up and claiming credit for it, but he is not. Therefore, I assume that that is not the case.
The significance of that is that those four companies about which I have just raised doubts—G4S, Serco, Capita, and we can safely add Atos—all told the Public Accounts Committee that they were prepared to accept the measures that the Committee proposed. It therefore appears that the main barrier to greater transparency lies within Government.
That is where we are. Even the companies that want to put themselves and the interests of their shareholders first are more keen on transparency and on answering the legitimate questions that are being asked by everyone— from ourselves to the chief inspector of prisons—than this Government are.
I say that because if we are to take this further leap down that path, it is only right that the Government do not just challenge, as the Minister has said, acknowledged frauds, but look at the entire performance behaviour, as well as the number of available companies that could step into the breach and deal with these matters.
What we must conclude from the conjunction of clauses 17 and 18 is that, first, the Government are prepared to take this leap in the dark, in terms of the reconfiguration of the youth estate and, secondly, that they are prepared to leave that entirely in the hands of the people who failed so many times in so many contracts, not least in running parts of the adult prison service.
For more on some of the specifics, see the House of Commons Public Accounts Committee report on “Contracting out public services to the private sector”, which for example recommended “that the Cabinet Office should explore how the FOI regime could be extended to cover contracts with private providers, including the scope for an FOI provision to be included in standard contract terms; that neither the Cabinet Office nor departments should routinely use commercial confidentiality as a reason for withholding information about contracts with private providers; [and that] The Cabinet Office should set out a plan for departments to publish routinely standard information on their contracts with private providers”.
There’s also a couple of related private members bills floating around at the moment – Grahame Morris’ empty Freedom of Information (Private Healthcare Companies) Bill 2013-14 “to amend the Freedom of Information Act 2000 to apply to private healthcare companies”, and Caroline Lucas’ Public Services (Ownership and User Involvement) Bill 2013-14 “to put in place mechanisms to increase the accountability, transparency and public control of public services, including those operated by private companies”. The latter >a href=”http://www.publications.parliament.uk/pa/bills/cbill/2013-2014/0160/cbill_2013-20140160_en_2.htm#l1g5″>proposes:
(1) Where a relevant authority starts the process of procurement for a public services contract, it must make available to the public details of all bids received prior to the conclusion of the procurement exercise.
(2) Where a relevant authority enters into a public services contract, details of that contract shall be made available to the public within 28 days of the procurement decision.
6 Freedom of information
(1) The Secretary of State must designate as a public authority, pursuant to section 5(1)(b) of the Freedom of Information Act 2000, companies or other bodies which enter into a public services contract.
(2) “Public services contract” has the meaning contained within section 8 of this Act.
(3) The Secretary of State shall maintain a list of companies designated under section 6(1) of this Act.
(4) Requests under the Freedom of Information Act 2000 in respect of such companies or bodies can only be made in respect of information relevant to the provision of a public services contract.
(5) The Secretary of State must designate as a public authority, pursuant to section 5(1)(b) of the Freedom of Information Act 2000, any utility company subject to regulation by regulatory authorities as defined in section 8.
Finally, on the accountability and transparency thing, there’s a consultation on at the moment regrading “smaller authorities with an annual turnover not exceeding £25,000, including parish councils, [who] will be exempt from routine external audit” but instead will be subject to a transparency code (Draft transparency code for parish councils – consultation).
Related: Spending & Receipts Transparency as a Consequence of Accepting Public Money? If you accept public money for contracts that would otherwise be provided by a public service you should be subject to the same levels of FOI and transparency reporting. Why should public services have to factor this in to their bids for running a service when private companies don’t?
One of the things I’ve been pondering lately is the asymmetry that exists between the information disclosures that public bodies are obliged to make compared to private ones. My gut feeling is that the public bodies may be placed at a disadvantage by these obligations compared to the private companies, though I guess I need to find some specific examples of this. (Cost may be one; having to release data that can be used by competitors in a procurement exercise may be another; if you have any good examples, please post them in the comments…)
To start with, let’s see how the field is currently set in the area of “transparency” (at least, in a spending sense).
Central government spend over £25k
The obligation on NHS bodies to publish spending data on transactions over £25,000 appears to come via HM Treasury reporting guidance on Transparency – Publication of spend over £25,000 (9th September, 2010), which was released in support of a Prime Ministerial letter of 31st May 2010 to Secretaries of State:
2.1.1 This guidance applies to all parts of central government as defined by the Office for National Statistics, including departments, non‐ministerial departments, agencies, NDPBs, Trading Funds and NHS bodies. There are a limited number of exceptions to the requirement to publish. The Intelligence Agencies are completely exempt from this requirement. The following are also not subject to this requirement:
• Financial and non‐financial public corporations
• Parliamentary bodies
• Devolved Administrations
2.1.2 However it is recommended that these bodies adopt this guidance as best practice. Separate guidance is being prepared for local authorities.
2.1.3 Where an organisation comprises both a central government body and a public corporation (e.g. the BBC), this requirement applies to the part of the organisation that is classed as part of central government. The requirement does not apply to that part of the organisation that is a public corporation.
I’m not sure what power obliges these parts of government to conform to this guidance, or the requirement to publish spending data for transactions of £25,000?
A further letter – published on 7 July 2011 – added further obligations across a range of central government departments, as well as on the NHS.
(For information on Transparency in Procurement and Contracting see this supplier factsheet.)
Local authority spend over £500
By contrast, local authorities seem to be obliged to release spending data as a result of the publication of a Code of Recommended Practice for Local Authorities on Data Transparency (29 September 2011) (via) which was “issued by the Secretary of State for Communities and Local Government in exercise of his powers under section 2 of the Local Government, Planning and Land Act 1980 to issue a Code of Recommended Practice (The Code) as to the publication of information by local authorities about the discharge of their functions and other matters which he considers to be related”, where “local authority” means:
– a county council
– a district council
– a parish council which has gross annual income or expenditure (whichever
is the higher) of at least £200,000
– a London borough council
– the Common Council of the City of London in its capacity as a local authority
or police authority
– the Council of the Isles of Scilly
– a National Park authority for a National Park in England
– the Broads Authority 5
– the Greater London Authority so far as it exercises its functions through the
– the London Fire and Emergency Planning Authority
– Transport for London
– the London Development Agency
– a fire and rescue authority (constituted by a scheme under section 2 of the
Fire and Rescue Services Act 2004 or a scheme to which section 4 of that
Act applies, and a metropolitan county fire and rescue authority)
– a police authority, meaning:
(a) a police authority established under section 3 of the Police Act 1996
(b) the Metropolitan Police Authority
– a joint authority established by Part IV of the Local Government Act 1985
(fire and rescue services and transport)
– joint waste authorities, i.e. an authority established for an area in England by
an order under section 207 of the Local Government and Public Involvement
in Health Act 2007
– an economic prosperity board established under section 88 of the Local
Democracy, Economic Development and Construction Act 2009
– a combined authority established under section 103 of that Act
– waste disposal authorities, i.e. an authority established under section 10 of
the Local Government Act 1985
– an Integrated Transport Authority for an integrated transport area in England
The policy area associated with releasing local spending data is this one: Policy – Making local councils more transparent and accountable to local people
UPDATE: an amendment to the Local Government, Planning and Land Act 1980 extends the code of practice relating to local government publication schemes to include “information about any expenditure incurred by authorities” and “information about any legally enforceable agreement entered into by authorities and any invitations to tender for such agreements”.
Writing in the Observer (“Open government? Don’t make me laugh”, September 29th, 2013), columnist Nick Cohen wrote:
Public services have always moved from daylight into darkness when private managers take them over. Ever since Labour passed the Freedom of Information Act in 2000, MPs, journalists, bloggers, academics, campaign groups and concerned citizens have been able to examine a prison, say, or medical service up to the moment of privatisation when the possibility of scrutiny vanished.
Sadiq Khan, Labour’s justice spokesman, grasped the need to extend freedom of information to cover the private recipients of public money…
As it is the job of parliament to hold the executive to account, Khan set a test for G4S. He asked for details of its restraint techniques. The company replied that it could not respond to freedom of information requests. The Ministry of Justice would, even though G4S trained the guards and knew what they did while the ministry did not,
The cloak of secrecy may soon be draped over the public sector as well. The Campaign for Freedom of Information is alarmed – to put it mildly – that ministers are talking about making it all too easy for civil servants to refuse to disclose information that the public needs to know – and once had a right to know.
The keenness with which the coalition is protecting commercial interests explains a ministerial manoeuvre that baffled me at the time. When libel reform came before parliament, I, along with everyone else, assumed that the private contractors moving into the NHS, prison service and just about every other service would not be allowed to sue their critics for libel. Under the far-from-liberal existing law, public authorities could not sue because in a democracy voters were free to speak their minds about the providers of public services even if what they said was not in the best possible taste. Indeed, as taxpayers and as the recipients of services, we had a dual justification for saying what we wanted without the threat that crushing financial penalties would bully us into silence.
In the new market-orientated order the coalition was so keen to embrace, any restriction on robust debate would be unfair as well as undemocratic. A failure to allow free speech would mean that businesses and charities could say what they liked about a local authority bidding for a service, but the local authority could not respond in kind for fear of a writ. The Conservatives would not give an inch. In the name of libel reform, they insisted that the freedom to argue in the public square must be restricted and gave private interests an exemption from criticism they denied to public services.
Whatever your feelings about public services and the extent to which private companies could or should be able to deliver them, it seems to me that the different transparency regulations are simply not fair. Public bodies receive public money, so you may argue that it is only right that they should disclose how they spend it. But when the spend with another organisation is so large that it is essentially devolving a significant part of a public body’s budget for spending by a private company, then that private body should be transparent about the way in which it further spends or otherwise allocates the money.
At the moment, transparency in the UK tries to make it possible for use to see who public bodies give money to. If one public body, A, spends with another public body, B, we can also derive information about the receipts that body B has from other public bodies, such as A. If A spends with private company C, we know that A has spent with C but not how C further disburses the funds. If C purchases a service from public body B (which could be a police authority, for example), we don’t know that C spent the public money with B, nor do we know (from the non-existent recipient column of C’s non-existent transparency spending data) that public body B received public money from public body A via private company C.
There is an asymmetry in the way we have sight of public spend when it passes through private hands.
The solution? How about we require private companies that obtain substantial receipts from public bodies (say, over £25k in a single payment) to account for their spend associated with contract in the matter of payments over £500. If the £25k/£500 limits are too onerous (government inflicting red tape on private enterprise, then how about £250k/£10k breakdown. As to the red tape: the public bodies have to dal with it and they are increasingly competing for the same pot of money with the private companies. Come on, chaps, play fair…
The Other Problem – Centralised Receipts
As well as the loss of oversight into how public money is being spent, there is a secondary problem when it comes to tracking the extent to which bodies both public and private receive public money: how do we find how much public money in total a particular private company has received?
On the one hand, we can easily generate reports that show the total amount of public money spent by public body A with private company C by looking at their spending data. (This may be complicated that different companies within a larger group (eg separate recipients C Services Ltd and C Operations Ltd may both be part of C Ltd) all receive separate payments from the body, but as we get more information about beneficial corporate interests we can start to piece together that piece of the jigsaw.)
On the other, to see all public money receipts by a particular company, we need to collate spend data from every public body and then aggregate all the spend with a particular company to get an idea of how much public money it has received, and in what spending areas, from the public sector. (For an early example of this, see Sketching Substantial Council Spending Flows to Serco Using OpenlyLocal Aggregated Spending Data.)
The solution? How about we require private corporate recipients to disclose all public money they have received as part of the deal associated with receiving that public money (a deal that public bodies have to accede to). Again, we may wish to put a threshold on this, even one that has some sort of symmetry associated with it compared to the spending requirements: say, disclosure of £500+ receipts from local government and £25k+ receipts from government departments and other associated bodies.
PS I note a recent Open Letter to the PM from UK civil society organisations that makes a related request:
2. ENABLE PUBLIC SCRUTINY OF ALL ORGANISATIONS IN RECEIPT OF PUBLIC MONEY,
by opening up public sector contracts and extending transparency standards and legislation. Endorse and implement a system of ‘Open Contracting’, ensuring public disclosure and monitoring of contracting from procurement to the close of projects, and amend the Freedom of Information Act so that all information held by a contractor in connection with a public service contract is brought within its scope.
Ah, yes… Information asymmetry around FOI requests. Do you know of any companies who operate parking meters on behalf of a local council? I’d like to see if I could get this sort of data from them…
PPS see also the House of Commons Public Administration Committee, who took evidence on Statistics and open data on October 8th, 2013.
I note a pre-announced intention from the Justice Data Lab that they will publish “[t]ailored reports pertaining to the re-offending outcomes of services or interventions delivered by organisations who have requested information through the Justice Data Lab. Each report will be an Official Statistic.
If you haven’t been keeping up, the Justice data lab is a currently free, one year pilot scheme (started April 2013) in which “a small team from Analytical Services within the Ministry of Justice (the Justice Data Lab team) will support organisations that provide offender services by allowing them easy access to aggregate re-offending data specific to the group of people they have worked with” [User Journey].
Here’s how the user journey doc describes the process…
…and the methodology:
which is also described in the pre-announcement doc as follows:
Participating organisations supply the Justice Data Lab with details of the offenders who they have worked with, and information about the services they have provided. As standard the Justice Data Lab will supply aggregate one year proven re-offending rates for that group, and that of a matched control group of similar offenders. The re-offending rates for the organisation’s group and the matched control group will be compared using statistical testing to assess the impact of the organisation’s work on reducing re-offending. The results will then be returned to the organisation in a clear and easy to understand format, with explanations of the key metrics, and any caveats and limitations necessary for interpretation of the results.
The pre-announcement suggests that participating organisations will not only receive a copy of the report, but so will the public… The rationale:
The Justice Data Lab pilot is free at the point of service, paid for through the Ministry of Justice budget. The Ministry of Justice therefore has a duty to act transparently and openly about the outcomes of this initiative. It is anticipated that by making this information available in the public domain, organisations that work with offenders will have a greater evidence base about what works to rehabilitate offenders, and ultimately cut crime.
(Nice to see the MoJ believes in transparency. Shame that doesn’t go as far as timely spending data transparency, but I guess we can’t have it all…)
I think it’s worth taking notice of this pre-announcement for few reasons:
– are such data release mechanisms the result of lobbying pressure? Other government departments have datalabs, such as the HMRC datalab. HMRC recently ran a consultation on the release of VAT registration information as opendata, although concerns have been raised that this may just be a shortcut way of releasing company VAT registration data to credit rating agencies and their ilk…?, so it seems as if they are looking at what data they may be able to open up, and how, maybe in response to lobbying requests from corporate players who don’t want to have to (pay to) collect the data themselves…? Who might have lobbied the MoJ for the results of MoJ datalab requests to be opened up as public data, I wonder?
– are the results gameable, or might they be used as a tool to “attack” a group that is the basis of a research request? For example, can third parties request that the MoJ datalab runs an analysis on the effectiveness of a programme carried out by another party, such as, I dunno, G4S?
– the ESRC is in the process of a multi-stage funding round that will establish a range of research data centres. The first round, to establish a series of Administrative Data Research Centres has now closed (who won?!) and the second – for Business and Local Government Data Research Centres – is currently open. (Phase three will focus on “Third Sector data and social media data”…wtf?!) To what extent might any of the funded research data centres require that summaries of analyses run using datasets they control access to are released as public open data?
Just by the by, I note here the RCUK Common Principles on Data Policy:
Publicly funded research data are a public good, produced in the public interest, which should be made openly available with as few restrictions as possible in a timely and responsible manner that does not harm intellectual property.
Institutional and project specific data management policies and plans should be in accordance with relevant standards and community best practice. Data with acknowledged long-term value should be preserved and remain accessible and usable for future research.
To enable research data to be discoverable and effectively re-used by others, sufficient metadata should be recorded and made openly available to enable other researchers to understand the research and re-use potential of the data. Published results should always include information on how to access the supporting data.
RCUK recognises that there are legal, ethical and commercial constraints on release of research data. To ensure that the research process is not damaged by inappropriate release of data, research organisation policies and practices should ensure that these are considered at all stages in the research process.
To ensure that research teams get appropriate recognition for the effort involved in collecting and analysing data, those who undertake Research Council funded work may be entitled to a limited period of privileged use of the data they have collected to enable them to publish the results of their research. The length of this period varies by research discipline and, where appropriate, is discussed further in the published policies of individual Research Councils.
In order to recognise the intellectual contributions of researchers who generate, preserve and share key research datasets, all users of research data should acknowledge the sources of their data and abide by the terms and conditions under which they are accessed.
It is appropriate to use public funds to support the management and sharing of publicly-funded research data. To maximise the research benefit which can be gained from limited budgets, the mechanisms for these activities should be both efficient and cost-effective in the use of public funds.
A few more bits and pieces around the possible distribution and application of open public data (that is, openly licensed data released by public bodies):
- Bills before Parliament – Education (Information Sharing) Bill 2013-14: although this is a private member’s bill, explanatory notes have been prepared by prepared by the Department for Education. The bill allows for “student information of a prescribed description” to be made available to a “prescribed person” or “a person falling within a prescribed category”. If the bill goes through, keeping tabs on these prescriptions will be key to seeing how this might play out.
As mentioned in my Rambling Round-Up of Some Recent #OpenData Notices from August, the HMRC is consulting on opening up access to VAT records. And through the post this week, I received a letter from the NHS regarding the sharing of data within the NHS via Summary Care Records, although this appears to be more to do with data sharing within the NHS on a case-by-case basis, rather than sharing of bulk datasets for analysis/research and/or business development. So outbreaks of planned sharing are appearing all over the place. I’m not sure what the best way of tracking such initiatives is though?
I haven’t really been tracking private members’ bills either (except the Supermarket Pricing Information Bill 2012-13 that never went anywhere!), and I’m not really sure what they signal, but some of them do make me a bit twitchy. Like the currently proposed Collection of Nationality Data Bill that will “require the collection and publication of information relating to the nationality of those in receipt of benefits and of those to whom national insurance numbers are issued.” Or the Face Coverings (Prohibition) Bill 2013-14, whereby “a person wearing a garment or other object intended by the wearer as its primary purpose to obscure the face in a public place shall be guilty of an offence.” As discussions regarding privacy and anonymity on the web ebb and flow, it’s interesting to see how they’re tracked “IRL”. If a space is public, do you have any right to privacy or anonymity?
- ESRC Pre-call: Business and Local Government Data Research Centres – Big Data Network Phase 2:
The ESRCs Big Data Network will support the development of a network of innovative investments which will strengthen the UKs competitive advantage in Big Data. The core aim of this network is to facilitate access to different types of data and thereby stimulate innovative research and develop new methods to undertake that research. This network has been divided into three phases.
- Phase 1 of the Big Data Network the ESRC has invested in the development of the Administrative Data Research Network (ADRN) which will provide access to de-identified administrative data collected by government departments for research use
- Phase 2, which is the focus of this pre-announcement, will focus primarily on business data and local government data
- Phase 3, further details of which will be released in the Autumn, will focus primarily on third sector data and social media data
- Progress continues on the smart meter roll out program, with huge chunks of money being lined up for a few lucky companies (Government Selects Favourites For The Smart Meter Roll-Out). See also the Energy and Climate Change Select Committee inquiry – “Smart meter roll-out” and their Smart meter roll out report. Whilst the drivers are presumably supposedly related more efficient energy management, there are plenty of surveillance opportunities arising! Whilst not public data, as such, the availability (and sharing with data aggregators) of smart meter data does form part of the government’s #midata programme (around which the current strategy appears to be “the less said the better”…)
- Maybe of interest to hardcore openspending data geeks, Local Audit and Accountability Bill 2013-14 has made its way from the Lords into the Commons. Schedule 9 introduces regulations around data matching, described as “an exercise involving the comparison of sets of data to determine how far they match (including the identification of any patterns and trends)”, although “data matching exercise[s] may not be used to identify patterns and trends in an individual’s characteristics or behaviour which suggest nothing more than the individual’s potential to commit fraud in the future”. A code of practice is also required. The power “is exercisable for the purpose of assisting in the prevention and detection of fraud” although the schedule may be amended in order to assist: “a) in the prevention and detection of crime (other than fraud), (b) in the apprehension and prosecution of offenders, and (c) in the recovery of debt owing to public bodies”.
Schedule 11 covers the Disclosure of Information. Where an auditor obtains information from a public body “[a] local auditor, or a person acting on the auditor’s behalf, may also disclose information to which this Schedule applies except where the disclosure would, or would be likely to, prejudice the effective performance of a function imposed or conferred on the auditor by or under an enactment”. I’m not sure to what extent such information might be requestable from the local auditor though?
I have to admit, I’m losing track of all these data and information related laws. And I guess I should also admit that I don’t really understand what any of them actually mean, either…!;-)