Knowledge is power?

The complex legislative procedures that surround the care service mergers promised under the Public Bodies (Joint Working) Act 2014 (PBJWA) are already raising fears that a web of bureaucracy may make the services so many of us rely on (or plan to rely on) far more difficult to call to account.

The merger of NHS and local government care (primarily in the area of adult and community care) brings together two major service sectors with all the attendant issues of different funding priorities, staffing levels and governance, that this creates. And, while it is a generally accepted belief that closer working in these overlapping areas is ‘a good thing’, the threat is that any service benefits could be gobbled up in outsourcing, creating new empires and/or using the mergers as an excuse to implement cuts.

This being the case, it is clearly an area in which access to good quality information on the processes, progress and funding of the merger process and the services affected will be crucial. It is also an area where there are – to say the least – questions about how far the reach of the primary enforceable legislation that service users and the general public can utilise – the Freedom of Information Scotland Act (FOISA) – can be used. There has been scant discussion on safeguarding and improving access to information as the PBJWA has made its way through Holyrood.

It may well be that an (erroneous) assumption of blanket coverage is being made, here. However, as the Campaign for Freedom of Information in Scotland (CFIS) has repeatedly pointed out, where changes are made to the traditional provision of public services, especially those that can include non-public bodies providing public services, it is almost certain that there will be gaps in the coverage, and significantly, often at the sharp end of service delivery.

Of course, many voluntary and social bodies – like charities and housing associations – are quick to point out their commitment to openness and transparency. Unfortunately, this commitment all too often comes as they advance arguments why they should not be covered by FOISA!

So, is coverage important? The CFIS thinks so. It points out that it is only coverage by FOISA that confers the right to information on us all – anything committed too by the voluntary, private or social (non-public) sector remains at the behest of those organisations, and importantly, any dispute over release of information would be decided by the body themselves. Only FOISA coverage gives the right of an enforceable decision provided after an investigation by an independent regulator.

This anomaly is made even starker when you realise that these bodies are almost certainly covered for environmental information – under the Environmental Information (Scotland) Regulations (EISRs).

Of course, both the NHS in Scotland and local councils, are specifically covered by the FOISA, so it might be argued that surely any merged bodies would also be covered? Well, unfortunately that remains to be seen. Despite the lengthy debates that have already surrounded this process, commitments to ensuring the right of FOI have been lacking.

Indeed, the flexibility given to local councils and NHS boards to pick from a range of governance structures, has left open the possibility of devolving care services to outside partners who may well not be covered by FOISA.

The changing nature of public service provision has proved a minefield for information rights, and governments have been positively glacial in their attempts to catch up. The increase in outsourcing services to the voluntary sector and the private sector (via PFI and other contracts); the use of trusts, limited liability partnerships, and other arms-length bodies to deliver services have largely failed to be addressed by Parliament extending coverage to these bodies.

Under the PBJWA, councils and the NHS have largely opted for one of two options to deliver the merged services – the establishment of integration joint boards (IJB) (the body corporate model), or the lead authority model. Both these bodies can devolve services to more local bodies. So far only Highland has opted for the latter,

While the ‘body corporate’ model is a joint body established by two public authorities, (and therefore covered by FOISA), the devil may well be in the detail. It is already the case that care services which have been contracted out to voluntary and (often subsequently) private sector providers by local councils, have ‘slipped through the net’ of FOISA, ceasing to be covered by the Act.

The prospect of this being extended to NHS provision, and the involvement of ‘commercial providers of health care services’ in the strategy committees of the lead authority model (and a statutory consultee under the IJB model) leads to the conclusion that this loss of information rights could extend very quickly.

Surely, however, this is an unintended consequence of positive legislation, and one that could be easily rectified? This may be theoretically the case, but the history of successive Scottish Governments in dealing with FOI anomalies by does not hold out much hope.

After all, the government that brought forward the original legislation in 2002 promised that early attention would be given to including Housing Associations in the Act. Twelve years, one Amendment Act, two consultation processes, numerous Amendment Orders, the combined arguments of the Campaign for FOI and the Scottish Information Commissioner, a public opinion poll and at least one petition later – and we’re still waiting.

The provision exists to designate such bodies via Section 5 of FOISA. So far the only new types of bodies that have been added are local council arm’s length trusts – and then only those that run leisure and cultural services!

It is long past the time that a better way is found to ensure that new and different ways of delivering the services that we rely on and pay for are subject to enforceable rights that the public can use to request information.

Chris Bartter deals with communications for the Campaign for Freedom of Information in Scotland. He was formerly Communications Officer for UNISON Scotland.