The mystery services you pay for and aren't allowed to know about

There is a vast range of stuff involving taxpayers’ money that taxpayers aren’t actually allowed to know. Why?

Here is brief assortment of things you aren’t supposed to know. The terms under which Circle Healthcare was contracted to take over an NHS hospital in November 2011. The date by which the NuGen joint venture was due to construct a new nuclear power station at Sellafield. How much the Lord Mayor of Chester spends on leasing a chauffeur-driven Bentley.

This isn't an exhaustive list, you understand: these are just a few of the incidences in which that will-sapping phrase "commercial confidentiality" has popped up in the news over the last few months – put there, no doubt, by journalists steaming from the ears at their inability to get hold of actual facts and figures.

This dreaded phrase comes from the Freedom of Information (FOI) Act, which makes clear that, while the public has a perfect right to know about most of what the government does, there are certain areas in which the powers that be are within their rights to keep schtum: anything, in fact, deemed “prejudicial to the commercial interests” of somebody or other.

The result of all this is that there is a vast range of stuff involving taxpayers’ money that taxpayers aren’t actually allowed to know. Want to see the un-redacted contracts under which outsourcing firms are running public buildings? Or what targets they have to hit, to claim their rather expansive bonuses? Tough. None of your business. Bugger off.

If the private sector feels at all concerned about the impression this is leaving, it’s hiding it well. In early September, the main business lobbying organisation, the CBI, put out a report calling for greater transparency regarding how services were performing. This, it argued, would make it easier both to spread good practice, and to highlight when things were going wrong.

The reason for this sudden commitment to openness is simple: it drives trust. The more information we have about how good private firms are at offering public services, the CBI thinks, the more comfortable we’ll all get with the idea. The report doesn't quite come out and say it, but it seems to be aimed at things like the Staffordshire hospital scandal; its subtext can best be summarised as 'Game on'.

Not everyone’s going to agree with that, of course, but most people, at least, would probably say this commitment to openness is to the lobby group’s credit. There is, however, a gaping hole in its argument: it only talks about one side of the equation. The report includes an airy promise that “citizens are entitled to know how taxpayers’ money is spent”; but it mentions commercial confidentiality only once, and that’s to say how important it is that the rules allowing secrecy stays in place. As far as the business lobby is concerned, we’re allowed to see what’s coming out of public services; we’re not allowed to see what’s going into them.

If pushed on the matter, the CBI’s wonks point out that financial arrangements within the public sector tend towards the opaque, too. And they argue that publishing contracts would stifle innovation. Commercial confidentiality works like a patent: no one’s going to spend money coming up with a cleverer way of doing things if they think their rivals will instantly nick it.

But even if every closed contract is hiding a wealth of innovation, which is frankly hard to believe, isn't it in our interests that their rivals can see this and start copying it? If the risk of financial transparency is that everything gets cheaper, then I'm not convinced the downside is quite as big as the CBI thinks.

The real reason commercial confidentiality persists lies elsewhere. Outsourcing firms may not want any pesky members of the Public Accounts Committee trawling through their contracts – but neither does the government. There are no clear rules setting out what can be classed as confidential, or when it can be overruled by public interest. There is, what’s more, plenty of anecdotal evidence to suggest that specific financial information sometimes stays hidden at official request. If you were the guy who signed the PFI contract that included a £300 fee every time a light-bulb needed changing, you’d want it hushed up, too.

But there’s a sort of Prisoner’s Dilemma at work here. Both outsourcing firms and public authorities think it in their short term interest to keep everything quiet – but both might benefit from a touch of transparency. If there was a public interest rule that meant any contract involving public money would be subject to FOI, then the government would probably benefit by getting products and services cheaper. But companies could benefit too: partly because they could see what their rivals were up to, but mostly because everything the CBI says about the value of trust is entirely true.

Fairly or otherwise, a lot of people remain convinced that outsourcing companies are all evil profiteers, growing rich off the backs of children or sick people. Some of them aren’t. Some genuinely believe they can provide better public services at lower cost. Were they to be more willing to prove it, we might start to believe them.

Want to know how much the Lord Mayor of Chester spends on a chauffeur-driven Bentley? Sorry. Image: Getty

Jonn Elledge edits the New Statesman's sister site CityMetric, and writes for the NS about subjects including politics, history and Daniel Hannan. You can find him on Twitter or Facebook.

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The UK press’s timid reaction to Brexit is in marked contrast to the satire unleashed on Trump

For the BBC, it seems, to question leaving the EU is to be unpatriotic.

Faced with arguably their biggest political-cum-constitutional ­crisis in half a century, the press on either side of the pond has reacted very differently. Confronting a president who, unlike many predecessors, does not merely covertly dislike the press but rages against its supposed mendacity as a purveyor of “fake news”, the fourth estate in the US has had a pretty successful first 150-odd days of the Trump era. The Washington Post has recovered its Watergate mojo – the bloodhound tenacity that brought down Richard Nixon. The Post’s investigations into links between the Kremlin and Donald Trump’s associates and appointees have yielded the scalp of the former security adviser Michael Flynn and led to Attorney General Jeff Sessions recusing himself from all inquiries into Trump-Russia contacts. Few imagine the story will end there.

Meanwhile, the New York Times has cast off its image as “the grey lady” and come out in sharper colours. Commenting on the James Comey memo in an editorial, the Times raised the possibility that Trump was trying to “obstruct justice”, and called on Washington lawmakers to “uphold the constitution”. Trump’s denunciations of the Times as “failing” have acted as commercial “rocket fuel” for the paper, according to its CEO, Mark Thompson: it gained an “astonishing” 308,000 net digital news subscriptions in the first quarter of 2017.

US-based broadcast organisations such as CNN and ABC, once considered slick or bland, have reacted to Trump’s bullying in forthright style. Political satire is thriving, led by Saturday Night Live, with its devastating impersonations of the president by Alec Baldwin and of his press secretary Sean Spicer by the brilliant Melissa McCarthy.

British press reaction to Brexit – an epic constitutional, political and economic mess-up that probably includes a mind-bogglingly destructive self-ejection from a single market and customs union that took decades to construct, a move pushed through by a far-right faction of the Tory party – has been much more muted. The situation is complicated by the cheerleading for Brexit by most of the British tabloids and the Daily Telegraph. There are stirrings of resistance, but even after an election in which Theresa May spectacularly failed to secure a mandate for her hard Brexit, there is a sense, though the criticism of her has been intense, of the media pussy-footing around a government in disarray – not properly interrogating those who still seem to promise that, in relation to Europe, we can have our cake and eat it.

This is especially the case with the BBC, a state broadcaster that proudly proclaims its independence from the government of the day, protected by the famous “arm’s-length” principle. In the case of Brexit, the BBC invoked its concept of “balance” to give equal airtime and weight to Leavers and Remainers. Fair enough, you might say, but according to the economist Simon Wren-Lewis, it ignored a “near-unanimous view among economists that Brexit would hurt the UK economy in the longer term”.

A similar view of “balance” in the past led the BBC to equate views of ­non-scientific climate contrarians, often linked to the fossil-fuel lobby, with those of leading climate scientists. Many BBC Remainer insiders still feel incensed by what they regard as BBC betrayal over Brexit. Although the referendum of 23 June 2016 said nothing about leaving the single market or the customs union, the Today presenter Justin Webb, in a recent interview with Stuart Rose, put it like this: “Staying in the single market, staying in the customs union – [Leave voters would say] you might as well not be leaving. That fundamental position is a matter of democracy.” For the BBC, it seems, to question Brexit is somehow to be unpatriotic.

You might think that an independent, pro-democratic press would question the attempted use of the arcane and archaic “royal prerogative” to enable the ­bypassing of parliament when it came to triggering Article 50, signalling the UK’s departure from the EU. But when the campaigner Gina Miller’s challenge to the government was upheld by the high court, the three ruling judges were attacked on the front page of the Daily Mail as “enemies of the people”. Thomas Jefferson wrote that he would rather have “newspapers without a government” than “a government without newspapers”. It’s a fair guess he wasn’t thinking of newspapers that would brand the judiciary as “enemies of the people”.

It does seem significant that the United States has a written constitution, encapsulating the separation and balance of powers, and explicitly designed by the Founding Fathers to protect the young republic against tyranny. When James Madison drafted the First Amendment he was clear that freedom of the press should be guaranteed to a much higher degree in the republic than it had been in the colonising power, where for centuries, after all, British monarchs and prime ministers have had no qualms about censoring an unruly media.

By contrast, the United Kingdom remains a hybrid of monarchy and democracy, with no explicit protection of press freedom other than the one provided by the common law. The national impulse to bend the knee before the sovereign, to obey and not question authority, remains strangely powerful in Britain, the land of Henry VIII as well as of George Orwell. That the United Kingdom has slipped 11 places in the World Press Freedom Index in the past four years, down to 40th, has rightly occasioned outrage. Yet, even more awkwardly, the United States is three places lower still, at 43rd. Freedom of the press may not be doing quite as well as we imagine in either country.

Harry Eyres is the author of Horace and Me: Life Lessons from an Ancient Poet (2013)

This article first appeared in the 20 July 2017 issue of the New Statesman, The new world disorder