Health and Social Care Bill

Baroness Thornton Excerpts

Wednesday 7th December 2011 Lords Chamber

Moved by

[Baroness Thornton]

At end to insert “but that this House regrets the Government’s appeal against the Information Commissioner’s ruling that the Government should release the Transition Risk Register; notes that the Information Commissioner says that disclosure would aid public understanding and debate on crucial aspects of the Bill; and requests that the Secretary of State reconsider his decision to withhold the information in order that this House can have the information in time to be considered during the passage of the Bill.”

[Baroness Thornton]

My Lords, I move the amendment, which is for a Motion of Regret, in my name on the Order Paper. This is the third time that I have asked for the indulgence of the House to bring this important matter before it and I hope that this will be the last. My amendment is not a fatal Motion. It does not intend to stop the progress of the consideration of the Bill, much as the doctors, the BMA and others might desire it. The battles to change the Bill are for later today and in the new year. This is a broader issue.

This amendment will allow the House to express its dismay, should it so wish, that the Government are denying the Committee currently considering the Bill information that may be pertinent to its deliberations. Noble Lords may recall that my right honourable friend John Healey MP and the Evening Standard both submitted freedom of information requests in November 2010 to have the register of risks relevant to the Bill released. They went through the procedures of review and appeal with the Department of Health.

On Friday 2 November, the Information Commissioner ruled that, given the particular circumstances—that is, the passage of primary legislation through Parliament—the register of risks should be released. I raised the matter in the House on 14 and 16 November, asking for the information to be made available. On 28 November, the Minister informed the House that the Department of Health was appealing the decision of the Information Commissioner. He was unable to inform the House of how long the appeal process might take and whether the risk register might ever or eventually be made available to the House in time to be considered during proceedings on the Bill.

The Minister also said that some information might be made available. However, he said:

“I cannot share the detailed breakdown of the information recorded in the risk register, or the wording”.—[Official Report, 28/11/11; col. 16.]

The noble Baroness, Lady Williams, supported the need to make this information available to the House, for which I for one am very grateful. It underlines the fact that this is not a party-political issue and is not for point-scoring. It is about the proper functioning of this Chamber doing the best job it can with all the information available to enable us to do so. The pros and cons of releasing the information have been thoroughly explored by the Information Commissioner in his ruling, including addressing the concern about precedent-setting expressed by the noble Lord, Lord Butler, on 28 November. The Information Commissioner argues with great clarity in his ruling that the particular circumstances of the Bill mean that the information is directly relevant and should be released. He said in his ruling of 2 November that:

“The Commissioner finds that there is a very strong public interest in disclosure of the information, given the significant change to the structure of the health service the government’s policies on the modernisation will bring”.

In this ruling the commissioner goes on to say that he,

“considers that disclosure would go somewhat further in helping the public to better understand the risks associated with the modernisation of the NHS than any information that has previously been published”.

This is the information that we have been refused. Today we start day 11 in the Committee on this huge and complex Bill, with its implications for our NHS. We have been considering this Bill for over 60 hours, and by my reckoning we have about another 25 or so to go before we embark on the next stage in the new year. We do so ignorant of this information.

As well as regretting the decision taken by the Government, the amendment asks the Minister to reconsider the decision to appeal the Information Commissioner’s ruling. I appreciate that the decision about this matter may be above the Minister’s pay grade, and I sympathise with his position. It seems to me that a clear expression of the House’s dismay and regret may strengthen the Minister’s hand when he discusses this further in the department.

There are two final matters which I ask the House to consider. The first is that the last Government, under similar circumstances, and indeed after a year of resisting, released the third Heathrow runway risk register to Justine Greening MP. It did not create a rush to request risk registers. Secondly, it has also emerged, as was published in the Evening Standard, that NHS London publishes quarterly on its website a risk register for health services in the capital, including how they could be affected by the Government’s reforms. NHS London’s frankness can only add to the case for publication. I understand that one other NHS region is also considering this course of action. I ask the Minister if he is aware of this, and does it not rather undermine the argument the Government are using to appeal this decision? Indeed, does his department intend to stop NHS London?

I hope the House will regard this as a very serious matter. I hope that noble Lords will consider supporting this Motion of Regret if there is no change in the Government’s position. Like all noble Lords here, I hold the noble Earl, Lord Howe, in great respect and esteem, and I have come to the decision to proceed only after much reflection. It is because this House is a body of revision and scrutiny. It has without doubt a worldwide and distinguished record of scrutiny, which includes, after consideration of evidence and facts, telling Governments that they need to change legislation. This House has a reputation for standing up to Governments when it believes that rights and liberties are in jeopardy, and having access to the information allows us to reach considered decisions. I suggest that we are being denied the ability to do our job. A GP sent me a message this morning:

“Glenys Thornton, how can you debate a Bill without knowing the risks?”.

He is right.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, as the House will recall, I have made clear on earlier occasions why the Government do not believe that it is appropriate to reveal the details of my department’s risk registers. This decision was made not solely in consideration of the current Bill but in the wider context of government. It is important for me to emphasise that.

However, in addressing the noble Baroness’s Motion, it may be helpful to put the issues that she has raised into the broader context of the Freedom of Information Act. The overriding aim of the Act is to maintain a balance between openness and confidentiality in the interests of good government. Openness is an intrinsic part of good government and is a principle that I and my fellow Ministers firmly believe is important. At the same time, it is equally important to acknowledge the need for a safe space when formulating policy and the associated risks. Those noble Lords who took part in the debates on the FOI Bill will recall the clear position taken by Ministers of the day about where that balance should be struck in relation to the workings of government. It was made clear that the Act was not intended to change the way that the Government conduct their business by requiring all their deliberations to be made in public. Some element of confidentiality must remain for the proper and effective conduct of that business.

Ministers and civil servants need the space to be able to consider the worst risks—even to broach quite unlikely risks—and to do so openly and frankly, without the threat of disclosure. Without this safe space for open and frank risk assessment, the registers would be in serious danger of becoming anodyne documents and their purpose would thereby be significantly diluted. That is why information relating to the formulation or development of government policy is explicitly exempt from disclosure under the Act. There is also an explicit exemption for information that would inhibit, or be likely to inhibit, the free and frank exchange of views for the purposes of deliberation.

It is my department’s very clear view, and the view of other government departments, that departmental risk registers of this type and nature should be treated as being exempt from disclosure. That was also the view taken on several occasions by health Ministers in the previous Government. I say to the noble Lords, Lord Pannick and Lord Martin—I was grateful to the noble Lord, Lord Martin, for his remarks—that the Government have no wish to be discourteous or obstructive to this House. Quite the opposite.

We are absolutely not using the right of appeal as a delaying mechanism. The department has published and discussed its proposals for reform at every stage of the process; we have debated them at length in both Houses; it has released some detail about the associated risks and what it is doing to address them in its impact assessments. In response to the noble Baroness, I myself have provided the broad issues covered by the risk register in my Statement of 28 November. Incidentally, that Statement was meant to be complete. I assure the House that in taking forward the Bill, no further risks are identified on the register that would fall outside the list of broad issues that I provided. I am therefore satisfied that I have not misled the House as a result of the Government's decision to appeal.

I am very grateful to my noble friend Lady Williams for her suggestion that the case should be expedited. I am as keen as anyone to see the matter speedily resolved. As my noble friend knows, she and I discussed this yesterday privately and I have since pursued the matter actively with my officials. I should say, however, to place my noble friend's suggestion in context, that since we met, the solicitor acting for the Information Commissioner has requested an extension of time to file the commissioner’s response to our appeal notice and has indicated that the appeal raises issues of considerable importance that will require the tribunal's normal target time for listing an appeal hearing in order for the case to be properly prepared.

I should also make clear a further point. For our part, as the House knows, we take the view that this case raises an important matter of principle for the Government as a whole. We took the decision that we have taken after very careful thought and discussion. Now, the burden is on us as appellants to provide accurate and pertinent evidence to the court to support our case. In preparing that case, we need to consider and consult across various parts of government, as indeed we consulted about our decision to appeal. It is obviously important that we have the necessary time to prepare and carry out those consultations. We have not asked for more time, but I suggest that we need enough time.

I completely understand and sympathise with the desire of my noble friends to see the matter resolved, and I undertake to use my best endeavours to pursue the suggestion so helpfully made by my noble friends Lady Williams and Lord Clement-Jones. The decision to appeal the Information Commissioner's ruling has not been taken lightly, but we have taken it because we believe that the commissioner has not given sufficient weight—

[Baroness Thornton]

Can the Minister give us some times here? How long is it going to take? When does he expect to have the tribunal sit? He keeps saying that it will take time to prepare and to do this, but I think that we need to know how long that will be.

[Earl Howe]

Having anticipated that question before this debate, I made a point of asking but I am afraid that I do not have a definite answer to give the noble Baroness at this stage. As soon as I am able, I would be delighted to do so.

Our appeal is based on the belief that the commissioner has not given sufficient weight in his judgment to the considerations embodied in the relevant provisions of the relevant FOI Act. As the noble Lord, Lord Butler, made clear on 28 November, the ruling has serious implications across government in the precedent it sets for all risk registers.

[Earl Howe]

The noble Lord knows that that is a matter for the House and the usual channels and not for me. However, I have no doubt that his suggestion will be registered in the appropriate places and will be considered. He must understand that it is not solely in my gift to order the business of this House.

I am of course acutely aware of the concerns of noble Lords on this issue. However, I would just ask those noble Lords who may at first blush be inclined to side with the noble Baroness in her amendment to recognise that there is room for an honestly held difference of view on this matter, that the principle involved is very important for the workings of government and that the Government have acted both properly and reasonably in asking the Information Tribunal to reconsider the merits of the case.

[Baroness Thornton]

My Lords, I thank noble Lords for this very illuminating and important debate, and I feel the weight of that importance. I think that the Minister would admit that over the past four weeks we have been very measured in our approach to this issue. We have not rushed at it; we have not sought to delay the Bill; and we have been very measured and patient in trying to work out the best way forward.

I thank the noble Lord, Lord Pannick, my noble and learned friend Lady Scotland and my noble friend Lord Richard and others for their support on this. I also thank my noble friend Lord Richard for crystallising the point that we should not proceed to the next stage of the Bill until we have the results of the appeal, and perhaps that would concentrate minds. In that context, I think that my amendment, which is a regret Motion, will help.

The noble Lord, Lord Clement-Jones, spoke about a chilling effect. I found the remarks of the representative of our former Permanent Secretaries in the House, the noble Lord, Lord Turnbull, interesting but possibly not to the point. The Freedom of Information Act may need reforming but that is not the point of my regret Motion. Particularly in response to the noble Lords, Lord Clement-Jones and Lord Turnbull, I should like to quote to the Committee from “Yes Minister”. This is from episode one of the first series and is about open government. Bernard, who noble Lords will all remember is the Private Secretary, says:

“But surely the citizens of a democracy have a right to know”.

Sir Humphrey—or maybe we should call him “Sir Andrew”—says:

“No. They have a right to be ignorant. Knowledge only means complicity in guilt; ignorance has a certain dignity”,

although it is not dignity that I would particularly welcome.

I confess that I am disappointed by my colleagues on the Liberal Democrat Benches. I was here with them in the Chamber fighting for the Freedom of Information Act all those years ago, and I know that they would have liked my Government to have gone even further than we did. Therefore, it is a matter of regret and disappointment that they are not joining with us in saying that the commissioner’s ruling is a good and measured ruling, that it takes account of all those issues and that this information should be made available to the public and, indeed, to the House.

Finally, the question is very simple. It is not about the appeals tribunal, and the noble Lord, Lord Pannick, was right. It is about how this House amends legislation to make it good legislation, and it is an amendment to regret the fact that we are not being given the information that we need to help us in that job. It is a very mild rebuke—it is an amendment expressing regret. It is a regret that we cannot do that job because we need this information. My view on that has not changed as a result of this debate. I feel enlightened by this debate to a certain extent and think that we may see a way forward. However, we need to regret the fact that we do not have this risk register, and I wish to test the opinion of the Committee.

--- Later in debate ---

[Lord Warner]

I was not doubting the enthusiasm on the Liberal Democrat Benches regarding this area. I just wanted to provoke the noble Baroness into giving the kind of excellent speech that she has given. I was hoping that we would hear from her. I also join her in paying tribute to Paul Burstow, and indeed Norman Lamb, for the very supportive way in which they have approached this issue.

[Baroness Thornton]

My Lords, we have had a very interesting debate on this imaginative amendment from my noble friend Lord Warner. Today’s debate might well be the only debate on social care in the whole life of this Bill, including in the Commons. I would like to talk about some real people, with real conditions and real problems, because it is only by testing this Bill against those that we will know whether it is going to work, and whether the issues that are being raised by noble Lords across the House are going to be taken into account.

I would like to pick up where the noble Baroness, Lady Greengross, left off, and talk a bit about dementia, partly because I have a very close friend whose wife has dementia and I have been following the path of this for the last seven or eight years, but also because this is an issue that affects hundreds of thousands of people. The Alzheimer’s Society reckons that: there will be 1 million people with dementia by 2025; dementia costs the country £20 billion now; one in three people over 65 will die with dementia; only 40 per cent of those have a formal diagnosis—that figure varies enormously across the UK; and, of course, which is the reason why they are important to this debate, people with dementia are very significant users of health and social care services. We know that people over 65 with dementia are currently using up one-quarter of hospital beds at any one time. The current system of charging for care, such as help with eating, hits people with dementia hardest, as the noble Baroness, Lady Greengross, has said, and amounts to what the Alzheimer’s Society calls a “dementia tax”.

We know all of this. The All-Party Parliamentary Group on Dementia, the National Audit Office and the Alzheimer’s Society have identified that significant resources are wasted on poor-quality care—for example, through crisis admissions into hospital or long-term care. There are opportunities to save money in dementia care across a wide range of settings; for example, by investing in early intervention and prevention services. In a way, those matters are the test of this Bill. Can we save the money and deal with the people who have got dementia? How can we promote a shift of NHS resources away from acute hospitals into community-based services, as recommended by the NHS Future Forum and the recent inquiry by the All-Party Parliamentary Group on Dementia?

I know that the Government recognise that a sustainable NHS in the future requires a new long-term settlement on social care to ensure quality for people facing disability and long-term illness. We think that this amendment will help with that. When I was looking at this amendment, I remembered that I myself was given a speaking note that said, “Of course, health covers social care, too”. That is not good enough any more; it is not good enough to say that by writing health into the Bill and giving the Secretary of State responsibility for it, we are somehow covering social care. Apart from anything else, it has not worked. We know it has not, and we are where we are. There are some very serious issues.

--- Later in debate ---

[Earl Howe]

My Lords, this set of amendments is predominantly made up of a series of minor government amendments to Schedules 4 and 5. Many of them make minor or technical changes to these schedules to correct errors, ensure the Bill’s provisions work as they are intended to do and make minor consequential amendments to the NHS Act 2006. They correct a couple of errors in cross-references and the placement of consequential repeal; add references to the Bill’s provisions on transfer schemes to Sections 216 and 220 of the NHS Act, which relate to the transfer of property held on trust by the NHS, such as charitable property; and remove a reference to Section 2 of the Local Democracy, Economic Development and Construction Act 2009, which is being repealed by the Localism Bill.

The amendments also amend the definition of “qualifying company” in Clause 294, so that under the Bill we will be able to transfer property to a subsidiary of a company wholly owned by the Secretary of State, not just to companies owned directly by the Secretary of State. They also amend Schedule 4 to allow such subsidiary companies to be members of the statutory risk-pooling schemes for meeting liabilities of NHS bodies.

This group also includes one other amendment on Schedule 5, tabled by my noble friend Lord Lucas. Amendment 254 amends the Freedom of Information Act 2007 so that the criminal offence of taking certain actions to prevent disclosure of information held by a public authority is expanded to include information held by service providers. I can reassure my noble friend that the Government are committed to extending the scope of the Freedom of Information Act to increase transparency. To do this effectively, we need to spend time properly considering the issues raised. It would not be appropriate to rush through changes that have not received proper scrutiny.

As part of this work, the Freedom of Information Act will be subject to post-legislative scrutiny and the Cabinet Office has recently concluded a public consultation on an open data strategy, which is aimed at establishing how we ensure a greater culture of openness and transparency in the delivery of public services. I understand that my noble friend has already met with officials to discuss his concerns around freedom of information and this Bill, which I hope reassured him. If he has additional concerns following this debate, I would be more than happy to write or to meet him to discuss this further. I hope that that will enable him not to press his amendment when we reach it.

I also hope that I have satisfied noble Lords that this set of government amendments should be made and that my noble friend will feel equally content.

[Baroness Thornton]

My Lords, I should like to ask one question and to make one remark. Even the Minister smiled when he used the words “openness” and “scrutiny”. Given our previous conversations about the information that the House has not received, I do not intend to rehearse that again but I would look at colleagues in the Liberal Democrat Party and say just how shocked and amazed I am by their lack of willingness to want proper openness and scrutiny on this Bill.

My question concerns the strategy risk-pooling schemes. I understand what those are, but I would like to know who the pooling would be shared with.