Reinforcing Openness And Fair-Dealing In The Public Sector

• Published date: 24 May 2023
• Subject Matter: Government, Public Sector, Government Contracts, Procurement & PPP
• Law Firm: Shepherd and Wedderburn LLP
• Author: Ashley French

In this article, our Regulatory Risk and Compliance team (RRC team) discusses the increasing need for firms dealing with government to be alert to the impact of transparency and fair-dealing regulations and how changes in these rules pose risks and may also give rise to opportunities.

This is an evolving area and the RRC team will provide updates to reflect key developments.

The Freedom of Information Reform (Scotland) Bill

A draft proposal for a bill to reform Freedom of Information legislation in Scotland with the aim of increasing transparency in the public sector could substantially extend existing freedom of information rights.

The Freedom of Information (Scotland) Act 2002, which came into force on 1 January 2005, requires public authorities in Scotland to provide recorded information they hold to a requester unless a statutory exemption applies. In this way, the regime has over its lifetime afforded a level of transparency in the public sector.

More recently, concerns have been expressed around whether the regime in its existing form is "fit" for purpose in the modern age. There is a particular concern that the scope of the Act does not adequately cover private sector businesses that deliver public sector services.

The draft proposal was lodged on 1 November 2022 and proposes to extend coverage to all bodies delivering public services, services of a public nature and publicly funded services. A consultation on the draft proposal closed on 14 March 2023. It is anticipated that a final proposal will be made once consultation responses have been analysed and published.

In effect, the draft proposal attempts to bring additional third sector bodies and private businesses within the scope of the existing freedom of information legislation, if they carry out work for the public sector or receive public funds. The consultation also sought views on what information should be published proactively by Government and public services.

Subsidy Control Act 2022

The UK's new Subsidy Control Act came into force on 4 January 2023. The new rules apply to subsidies granted by public authorities on or after this date and largely replace the EU state aid regime which (for the most part) no longer applies in the UK.

A particularly notable feature of the Act is that it requires public authorities to...