My Lords, Amendment 11 seeks to impose a requirement on 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 2000. It does this by introducing a requirement as to the contents of the code of practice that the Secretary of State will issue under new Section 62B of the Criminal Justice and Court Services Act 2000, to be introduced through Clause 6 of the Bill. The amendment 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.
I assure the Committee that the Government recognise that there are concerns about the position of private providers of public services under the Freedom of Information Act. As noble Lords may know, the issue
of outsourced public services was considered in some detail during post-legislative scrutiny of the Freedom of Information Act, carried out by the Justice Select Committee in 2012. The committee recommended the use of contractual provisions, rather than the formal extension of the Freedom of Information Act, to ensure that transparency and accountability are maintained. In particular, the committee said that it believed,
“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 felt that,
“the use of contractual terms to protect the right to access information is currently working relatively well”.
The Government accepted the committee’s recommendation and later this year will issue a revised code of practice under Section 45 of the Freedom of Information Act to promote transparency about outsourced public services in response to FoI requests. The new code will promote and encourage the use and enforcement of contractual obligations, to ensure that contractors provide information held on behalf of public authorities. It will also encourage contractors voluntarily to provide additional information beyond that held on behalf of the contracting public authority, where, for example, doing so would help the contracting public authority to provide a more meaningful response to requests.
The Government and the Information Commissioner, referred to by the noble Lord, Lord Beecham, will monitor the effectiveness of the new code. If it does not prove successful, the Government have said they will look at going further, including potentially extending FoI formally to contractors—again, a point made by the noble Lord, Lord Beecham. We believe that our approach represents an appropriate balance between transparency and minimising burdens on business. As a result of these steps, I would argue that the measures proposed through these amendments are unnecessary. Based on the explanation and assurance I have given, I hope the noble Lord will be minded to withdraw his amendment.