Transparency and public services outsourcing

Nicolás Brener (*)

 

Transparency has become a ‘magical word’ in politics, becoming a powerful concept frequently associated with positive values such as accountability, honesty and legitimacy.  Internationally, there has been a “global explosion” of Freedom of Information (FOI) laws, which are perceived to have a central role in resolving the accountability deficit of states, improving democracy and public management. However, the scope of FOI laws is usually limited to public sector bodies which can be a problem considering that the number of outsourced services and the increase of private companies participating in the delivery of public services. This creates an accountability gap as private bodies exercise public functions under the cloak of private law and commercial confidentiality and FOI laws are generally not applicable in the same way as it is when services are performed by government bodies.

In this context, several politicians, NGO´s and universities are advocating to extend the scope of Freedom of Information laws to the private companies performing public functions. Advocates of the extension assume that increased transparency will bring increased efficiency and legitimacy of the services, help contract monitoring and promote better public management. Those against the extension argue it has the potential to hinder the procurement process and that it can increase the cost of the contract. The debate has been intense and exciting and it will probably continue this way.

My Master´s dissertation work examines the different problems that arise in this context from a legal, an economic and a political perspective, seeking to understand why FOI laws are limited to the public sector when there is an increase of taxpayer money flowing to outsourced public companies. It uses the case of the United Kingdom because this country has been a pioneer in contracting-out public services and because it has a high level of public expenditure flowing to private companies delivering public services. If transparency and accountability are two of the most legitimising concepts of new governance theory and practice, then it is necessary to explore how they interact with the idea of efficiency and private participation in government tasks.

(*) Chevening Scholar, Lawyer, MSc. Public Policy and Management, University of London, Birkbeck College.

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