Health Transition Risk Register

Debate between Lord Falconer of Thoroton and Earl Howe

Thursday 10th May 2012 Lords Chamber

[Lord Falconer of Thoroton]

My Lords, whether this is a discreditable attempt to cover up something that is embarrassing for the Government, I do not know; that is for others to decide. The Statement represents quite a significant change in the Government’s position towards the use of the veto. Everybody in this House would agree with the noble Earl that there needs to be a safe space in which policy is formulated. Safe space means that you can talk to your civil servants, they can talk to you, and it will not be disclosed. That was fully reflected in the Freedom of Information Act, which allowed for that safe space. Again, as the noble Earl rightly says, there is a balance to be struck between preserving that safe space and the interests of openness.

The importance of the Freedom of Information Act was that, instead of it being decided by the Government or officials, it would be decided in accordance with the law and enforced within the courts. I understood the noble Earl to say that the Government have no complaint with the application of the law by the First-tier Tribunal and that is why they are not appealing. The position, therefore, is that the law was properly applied by the tribunal and the statute said that it would be the courts that determined where the limits were to be drawn. Everybody recognised that, in very exceptional circumstances, the veto would be used. Ministers at the time referred to such circumstances as, for example, when an informer would be inadvertently named if there was disclosure or if our foreign position would be damaged in a way that people could not work out. What has happened here—the noble Earl was frank about this—is that the Government simply disagree with the courts about where the balance should be struck. What does the noble Earl feel that that says about the Government’s view of the rule of law?

[Earl Howe]

My Lords, the law governing the release of government documents is the Freedom of Information Act 2000. The Act specifically recognises that the Government are entitled to consider all aspects of policy formulation in private. It provides an exemption to allow that, but it also allows Ministers to exercise a veto on the release of information if they have reasonable grounds for doing so. We believe that we do have reasonable grounds for doing so.

Health and Social Care Bill

Debate between Lord Falconer of Thoroton and Earl Howe

Monday 12th March 2012 Lords Chamber

[Earl Howe]

My Lords, many of the risks associated with the Government’s reform programme, as the noble Baroness knows, have already been extensively aired—not least in the impact assessment, in my statement of 28 November last and, indeed, in the whole passage of this Bill—but I fully recognise the concern that we should respond swiftly to the tribunal’s decision. We are making every effort to update noble Lords on our intention as soon as we possibly can. However, as I have always said, this is not a decision for the department alone and any way forward has to be agreed and signed off across Government. I cannot make a decision without agreeing it with my fellow Ministers in other departments and I am sure noble Lords will appreciate that we have only just received the tribunal’s decision.

[Lord Falconer of Thoroton]

My Lords, I am dismayed by the Minister’s answer. Surely it must be the case that Parliament would be assisted by seeing the objective assessment of what the risks are to the National Health Service from the Bill becoming law. I understand that he is saying that the Government have already said what many of them are, but if that is the case then what is the harm in disclosing the list of risks that the objective assessment by civil servants gives of the introduction of the Bill? Surely Parliament would be assisted by having as much information as possible. It cannot be the fault of the information tribunal that we are getting no answer at all from the Department of Health.

[Earl Howe]

My Lords, no Government have routinely made risk registers available. This is a matter of principle. It is not just that the issues associated with the Health and Social Care Bill have been extensively aired—as I said, they have been—but it is a point of principle whether a risk register that is integral to the formulation of policy should be published.

The tribunal agreed with our assertion that the strategic risk register should not be published but disagreed when it came to the transition risk register. Our difficulty is that the case that we made for both documents, which are of a similar structure and have similar content, was based on essentially the same arguments, which makes it extremely difficult to make a decision on whether or not to appeal the decision. I hope, as I say, that the tribunal will give its reasons for the judgment as soon as possible so that we can determine the right way forward.