Health Transition Risk Register

Andy Burnham Excerpts

Thursday 10th May 2012 Commons Chamber

[Andy Burnham (Leigh) (Lab)]

Back in the rose garden, the talk was of the most open and transparent Government ever. Today, those words are as worthless as “no rise in tuition fees” and “no top-down re-organisation of the NHS”. We have heard self-serving rubbish today from a Secretary of State who does not want patients and the public to know the whole truth about his NHS re-organisation, but he has been brought here by the sheer tenacity of my right hon. Friend the Member for Wentworth and Dearne (John Healey).

My right hon. Friend has been completely vindicated by the Information Rights Tribunal, which was scathing about the way in which the Government have conducted their re-organisation of the NHS, their failure to give an indication of their wide-ranging plans before their hastily drawn-up White Paper, and their decision to implement them on the ground before a Bill had been presented to the House.

After last Thursday, in interviews following the local election results, Government Members all promised to listen, but what is the first thing that they do? They take this unanimous ruling from a judge-led legal tribunal and tear it in two with trademark arrogance—a Government who believe that they are born to rule and above the law. In doing so, they have made a major departure from the established policy on freedom of information, and from the precedent set by the previous Government.

Hitherto, the ministerial veto has been used on only three occasions, all related to Cabinet discussions; applying the veto to operational matters of domestic policy breaks that precedent. As such, it is a major step backwards towards secrecy and closed government. Is there not now a real risk that other Departments will cite this shoddy decision as a precedent and seek to withhold public information that, in the spirit of policy intention of the Freedom of Information Act, should be placed in the public domain?

Where does this decision leave the Information Commissioner and, indeed, the Information Tribunal? Have they not been completely undermined by the Cabinet’s decision? The truth is that there is confusion in government about the decision, and the Secretary of State has failed to clear it up today. In his statement on Tuesday he said clearly that the risk register would not be published following Cabinet agreement and that it was a “final decision” by the Secretary of State, but just hours later on the “Today” programme the Health Minister Earl Howe said:

“We have every intention of publishing the risk register in due course, when we think the time is right”.

I have a simple question: will it be published or not? Was the Secretary of State’s Minister speaking for him and his Department when he made that statement, and if so will the Secretary of State tell us what his Minister means by “when…the time is right”? Most people, including those on the tribunal, felt that the time was right when the Bill was going through the House of Commons—before the right hon. Gentleman shamelessly rammed it on to the statute book.

The shambles is not just in the Department of Health, however; it is right across government. The shadow Leader of the House has just left the Chamber, but in a blog post earlier this week he said—

[The Minister of State, Department of Health (Mr Simon Burns)]

The Deputy Leader of the House.

[Andy Burnham]

The Deputy Leader of the House said that

“it would also be right to publish as much of what is contained in the risk register as possible”.

He said that this week—that the risk register should have been published. How many more Ministers and coalition MPs do not agree with the Cabinet’s decision?

Most worrying, however, is the confusion over freedom of information policy. The Secretary of State, in his statement earlier this week, said:

“If such risk registers were regularly disclosed, it is likely that their form and content would change”.

But later in the same statement he said that this was an “exceptional case”. Which is it? Do the Government now have a blanket ban on the publication of any risk register, even if ordered to do so by a judge, or was this an exceptional case? If it was the latter, how did it meet the exceptional criteria that Government rules require? We need answers, as again this Government are breaking the precedent set by the last Government. Following a ruling from the Information Commissioner, we released the Heathrow third runway risk register. We never called for the publication of all risk registers, but said that each case should be judged on its merits. Inconveniently for the Minister and the Conservative party, that ruling makes a clear differentiation between the strategic risk register on the one hand and the transition risk register on the other, as I have argued all the way through this discussion.

The Secretary of State’s argument today hinges on the “safe space” argument—he says that if we did not have a safe space, it may change future risk registers. Is he aware that the tribunal considered that point in detail but concluded that there was no evidence presented to us that the release of the Heathrow risk register had a chilling effect on their use by Government? Was the Secretary of State’s argument not tested in court and did it not fail in court? Is he not now showing a blatant disregard for the law? He said today that it “is a matter of principle and not a matter of law”, but it is a matter of principle and of law—freedom of information is the principle and the Freedom of Information Act is the law. He should be following the law that enacts that principle, but he has taken a step away from it today.

The Treasury website still has this statement on risk policy:

“Government will make available its assessments of risks that affect the public, how it has reached its decisions, and how it will handle the risk. It will also do so where the development of new policies poses a potential risk to the public.”

I ask again: if that is no longer the Government’s policy on risk management, when will it be removed from the Treasury’s website?

In conclusion, the Government are in disarray on many fronts. The NHS belongs to the people of this country, not Ministers. If Ministers cannot be open about the risks that they are taking with the NHS, they should not be taking those risks. That is a simple principle.

The truth is that this has been a cowardly decision from a Government on the run who are now too frightened to face up to the consequences of their own incompetence. The real reason for the veto is that publication would have shown that the warnings from doctors, nurses, midwives and patients were echoed in private by civil servants but the Government just ignored them. This is a Cabinet cover-up of epic proportions—a Government closing ranks and covering each other’s backs because they know that the public would never forgive them if they could see the scale of the risks that the Government are taking with the national health service.

[Mr Lansley]

Most of that was synthetic indignation. I am really surprised; the right hon. Gentleman cannot have read any of the review of the risk register that I published on Tuesday. That set out, in detail, all the risk areas carried in the risk register and the mitigating actions that have been taken. There is in no sense any area of risk identified 18 months ago that has not been put into the public domain in a proper form—one that reflects not only the character of those risks, but how those risks have been subsequently addressed.

The right hon. Gentleman is completely confused about the issue. The point of the veto was to confirm that it was not in the public interest for the risk register in December 2010 to be published in relation to the November 2010 document. That point was made very clearly. Acting as we did was not in any sense above the law; it was absolutely in accordance with the law. It is in accordance with the Freedom of Information Act and with the structure of the management of risk. For the further clarification of the House, on Tuesday I published the risk management strategy associated with the transition programme, so the right hon. Gentleman can see that it is exactly in line with how the Government manage such risks.

The right hon. Gentleman asked about our intention to publish the risk register. We will publish it at a point when it would not prejudice the exemption for officials for the formulation and development of policy. There will come a time when it is appropriate to do so, when doing so will not prejudice that exemption under the Freedom of Information Act.

The right hon. Gentleman is completely wrong to suggest that no evidence was presented to the first-tier tribunal relating to the potentially damaging effect of publication under these circumstances. As the former Cabinet Secretary, Lord O’Donnell made those risks very clear to the tribunal. Who is better placed than him to say that? He must know that in another place, during debates on this precise issue of publication and relevance to the legislation, other Cabinet Secretaries and Members clearly stated their view that the publication of the transition risk register would run that risk.

The right hon. Gentleman is speaking directly contrary to his own view. When he was a Minister, he said in relation to a request for publication of a departmental risk register:

“Putting the risk register in the public domain would be likely to reduce the detail and utility of its contents.”—[Official Report, 23 March 2007; Vol. 458, c. 1192W.]

He is making an absolutely spurious distinction between the transition register and the strategic register. [Interruption.] It is no good him shouting. The overlap between the two registers and the character of the formulation and development of policy—