Health Transition Risk Register

Earl Howe Excerpts

Thursday 10th May 2012 Lords Chamber

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

Mr Speaker, I shall now repeat a Statement made in another place earlier today by my right honourable friend the Secretary of State for Health on the subject of risk registers. The Statement is as follows:

“Mr Speaker, with permission, I would like to make a Statement on the publication of the Department of Health’s strategic and transition risk registers check.

In November 2010, the right honourable Member for Wentworth and Dearne submitted a freedom of information request, asking for the publication of the transition risk register relating to the planned Health and Social Care Bill. A similar request by Nic Cecil, a journalist with the Evening Standard, for the publication of the Department of Health’s strategic risk register, followed in February 2011.

The Government refused both requests on the grounds that the risk registers related to the formulation and development of policy and, as set out in the Freedom of Information Act 2000, were not required to be published. Appeals were then made by the applicants to the Information Commissioner. In both instances, the Information Commissioner ruled against the Government, arguing that the balance of the public interest lay in public disclosure. The Government’s view, to the contrary, is that the public interest is best served in this instance by officials and Ministers being able privately to consider such issues, including any risks. We therefore appealed the decision of the Information Commissioner, under the terms of the Freedom of Information Act, to the First-tier Tribunal. The tribunal was asked to consider whether the Information Commissioner was correct to find that, on balance, the public interest required disclosure of the risk registers.

On 5 April, the tribunal made public the reasons for its decision. For the department’s strategic risk register, it found in favour of the Government and so did not order its disclosure, but it came to the opposite conclusion with regard to the transition risk register. I have carefully considered the tribunal’s decision and have discussed it thoroughly with Cabinet colleagues. Following these discussions, I have decided to exercise the ministerial veto, as allowed by the Freedom of Information Act, in relation to the disclosure of the transition risk register. This decision represents the view of the Cabinet.

I have decided to veto, rather than appeal, the decision to the Upper-tier Tribunal, because the disagreement is on where the balance of the public interest lies and is a matter of principle and not a matter of law, as would be the focus of any further appeal. I recognise that this is an exceptional step. It is not one that is taken lightly.

There is no doubt that reform of the NHS has attracted huge public interest. But my decision to veto, while an exceptional case, is also a matter of wider principle and not just about the specific content of the transition risk register. In all departments, Ministers are required to balance the public interest in terms of disclosure with the need properly to consider complex areas of public policy. Good government demands that the analysis and management of risk is thorough and robust, whichever party is in power.

It is an essential aspect of good government, in the formulation and development of policy, that officials have a ‘safe space’ within which to formulate sensitive advice to Ministers, and that they feel free to use direct language and make frank assessments—and that the Government should, in exceptional circumstances, have the ability to reserve such privacy absolutely.

As the right honourable Member for Blackburn said in his evidence to the Justice Select Committee only last month, on 17 April:

‘There has to be a space in which decision makers can think thoughts without the risk of disclosure, and not only of disclosure at the time, but of disclosure afterwards’.

He also said there have been,

‘some rather extraordinary decisions by the Freedom of Information Tribunal, in which they suggested that it’—

by which he meant the exemption—

‘can apply only while policy was in the process of development but not at any time thereafter. That is crazy and it is not remotely what was intended’.

The Freedom of Information Act was drafted specifically to allow for a safe space for the development of policy, and I have acted throughout in strict accordance with the provisions of the Act.

The risk assessment process, carried out by civil servants and detailed in these registers, is an integral part of the formulation and development of government policy. It is strongly in the public interest that this process be as effective as possible. At the time the request for the transition risk register was made, many aspects of the policy were still at an early stage of their development. The Command Paper responding to the consultation had not been published. The Bill had not been published. It is therefore incorrect to say that the transition risk register does not relate to the development of policy as it fed, and continues to feed, directly into advice given to Ministers.

The Bill may have become an Act in March of this year but we are still in the process of policy development at the next level of detail. The value of risk registers is directly linked to the form and manner in which they are expressed, with the use of direct language. They do not, however, show the benefits of a policy. They are not, as impact assessments are, intended to reflect considered calculations of both costs and benefits. They are simply about identifying possible risks, in order to stimulate action to mitigate them.

If such registers are disclosed at sensitive times in relation to sensitive issues—as would have been the case here—it is highly likely that they would have been open to misinterpretation and misuse. The impact of this would be that future risk registers become anodyne documents of little use. Potential risks would be more likely to develop without adequate mitigation. That would be detrimental to good government and very much against the public interest.

Reflecting this, a detailed statement of reasons for my decision to exercise the ministerial veto in this case has been laid before Parliament. This decision to veto the disclosure of the register is not in any way a criticism of the Freedom of Information Act. The Act always envisioned that there would be times when the Government would need to protect the process of policy development, and this is one of those times. The Government’s right to make just such a veto is written into and is a proper use of the Act.

We have always been as open as possible about the risks and issues engaged in the modernisation of the NHS. First, there was the full public consultation, then the thorough examination by the NHS Future Forum, and the 50 days of detailed debate in both Houses, in addition to the detailed risks published in the impact assessment. Very few pieces of legislation have ever received this degree of public and parliamentary scrutiny. And on Tuesday, I went further and published a separate document that includes the risk areas covered in the transition risk register. This document also includes the actions taken to mitigate those risk areas. I have also published a scheme for publication, which sets out our proposals for reviewing and releasing material relating to the transition programme in future. Both of these documents are available in the Library and on the Department of Health’s website. These documents further confirm that the purpose of the veto was not in any sense to restrict public access to relevant information. It is to establish that publication of the risk register in December 2010 would have been contrary to the public interest.

This Government, more than any other before them, are committed to openness and transparency. Across government we publish business plans, departmental staffing and salaries, full details of departmental contracts and summaries of departmental board meetings. In the NHS, we have published more information about services than was ever previously the case—information that is not only shining a light on poor performance, but actually helping to root it out.

We now publish the NHS Atlas of Variation, exposing the variations in outcomes across the country. We have published data on mixed-sex accommodation, leading to a dramatic 95% fall in breaches. We have invested in new information collections—on A&E performance, on ambulance performance, and on clinical audits.

The decision to veto is about long-term principle and good government, not about limiting in any way scrutiny of NHS reform. Information relating to much of the content of the risk registers is now in the public domain. However, the important principle of the right not to publish has been maintained. I commend this Statement to the House”.

My Lords, that concludes the Statement.

--- Later in debate ---

[Earl Howe]

My Lords, I begin by welcoming the noble Lord, Lord Hunt of Kings Heath, to his new responsibilities with the health portfolio. It is very nice to see him in that post but I pay tribute to his predecessor, the noble Baroness, Lady Thornton, whom I think we would all agree fulfilled the expectations and requirements of her office with great distinction.

First, perhaps I may make a very emphatic statement. The use of the veto by my right honourable friend was not in any way an act that indicated political embarrassment. The reasons for the use of the veto were those that I read out in the Statement. Furthermore, the noble Lord’s point that this represents a fundamental change of policy is quite invalid. As he knows, the veto was used by the previous Government in matters of cross-government importance. In this instance, the Cabinet considered that the principle of “safe space” for civil servants was a matter of cross-government importance. Had it not taken that view, my right honourable friend would not have been able to exercise the veto.

The previous Government took a very similar stance in relation to risk registers. Indeed, they refused to release the Department of Health’s strategic risk registers in response to three requests under the Freedom of Information Act. Therefore, I suggest to the noble Lord that the position adopted by the Government of whom he was a member was not at all dissimilar to the one that we have taken.

The noble Lord asked why the Government consider the current circumstances to be exceptional. He himself read out a section of the tribunal’s reasons which uses the word “exceptional”. The tribunal and indeed the Information Commissioner regard this case as exceptional, as do we. It is important for me to say that the reasons why those views are taken may be different in each case. Nevertheless, both sides classified this as an exceptional matter. From our point of view, it is exceptional not only because these were highly sensitive issues for which a request for disclosure was made at a very sensitive time—namely, when policy was still in the process of formulation—but because of the wider considerations that I mentioned that run across government. For those reasons, above all, we believe that this is an exceptional case.

It is not true that the Government have said that the transition risk register will never be published. All documents, as long as they form part of the national archive, are published in the end but, quite apart from that, we have undertaken to review at regular intervals the sensitivity of this document and to judge whether the current circumstances still pertain. That is right and proper. It is very interesting that over the past few months my department has received no fewer than 546 requests for release of the transition risk register. I think that that is an indication of what departments would have in store for them had the veto not been exercised. I repeat that it must be possible for civil servants and Ministers to have private discussions without the fear that literally every week, or even more frequently, the public would wish to be told the exact nature of those conversations.

Do we consider the tribunal’s decision to be reasonable? I will not criticise it on grounds of reason but we fundamentally take issue with its conclusions. We believe that the balance of public interest most definitely lies in non-disclosure in this case. It is interesting that the noble Lord has given the House to understand that the Government are not keeping a close eye on the performance of the NHS. Of course, we are doing that. Indeed, as I hope the noble Lord knows, the performance of the NHS has not only been maintained since the 2010 election; in many respects it has improved. We have made efficiency savings through the Nicholson challenge. We have maintained financial control and low waiting times for elective treatment. The transition is being managed very effectively. I say that with great tribute to those in the National Health Service who have had a considerable burden of work to undertake to ensure that these changes take place in a structured way. It is proceeding well. The noble Lord failed to acknowledge that the NHS is basically in very good heart indeed.

I hope that that answers the noble Lord’s questions. I know that he will come back to this subject, perhaps even next week, but I do believe that the Government’s decision is the right one and, indeed, the only one.

[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.

[Lord Mawhinney]

My Lords, will my noble friend accept that, in trying to find a balance between disclosure and transparency on the one hand and long-term good governance on the other, he has made the right judgment? Will he accept that good governance cannot be traduced or undermined in any way because it is at the very heart of the legitimacy and credibility of what happens here and in another place? Will he accept, finally, from a noble friend, who was occasionally—only occasionally—a constructively critical friend during the passage of the Health and Social Care Bill that the openness with which he handled that Bill will add credence to the judgment that he has announced today?

[Earl Howe]

I can do little but thank my noble friend for his kind remarks. Indeed, if I may say so, during the passage of the Health and Social Care Bill, I always attempted to be as open as I possibly could with the House on all the matters that we debated. I think that that resulted in a much better Bill. I hesitate to do this, but it is instructive to look at the evidence given to the Justice Select Committee in another place last month by Jack Straw. He put the case that we are making in very graphic terms with which I agree. He said:

“If you talk generally about risk registers, it has to be possible for officials to say to Ministers that there are these risks without these going public. Given the assiduity of the British press, if you publish a raw risk register without any more information, you will set all sorts of hares running, but the document was not designed or prepared in that way. You have to say, ‘We think that we could be at risk here. We think we could be at risk there. Have you thought about this?’ In my view, that sort of information must be protected”.

I could not have put it better.

[Lord Harries of Pentregarth]

My Lords, I thank the Minister very much for his helpful Statement. The whole House agrees totally with the noble and learned Lord, Lord Falconer, that officials must have their private space to make their frank comments. Does the Minister agree that you have to draw a distinction between those frank comments and the risk register itself, which is something of a more formal document? The risk registers that I have seen lay out formally whether the risk is high, medium or low, and you could publish the risk register without at the same time publishing any frank advice that was given. Because the risk register has not been published, does that not itself give rise to possible misrepresentations? There is always the possibility of misrepresentation. If it is published it will possibly be misrepresented; if it is not published, it could also be misrepresented. Finally, I ask for further clarification about the noble Earl’s remark that if the risk register had been published that would set a precedent for the future so that advice would all be anodyne. That was the word the Minister used. Would not the opposite be the case? Officials who were trying to make their judgment about possible risks would be more likely to exaggerate the risks. If the risk register was published and it was discovered that proper risks had not been identified, those officials would be held responsible for not identifying those risks and weighing them with due seriousness. I was slightly surprised by the use of the word “anodyne”.

[Earl Howe]

If you talk to any Permanent Secretary in any department I guarantee that they would take issue with the noble and right reverend Lord on his final point. It is firmly the view of departments across government that if civil servants believe that what they say will reach the public domain immediately, they will not wish to embarrass either themselves or their Ministers by expressing their concerns in graphic language. I understand the noble and right reverend Lord’s point, but I disagree with it for that reason.

He made a distinction between certain parts of the risk register—between the nature of the risks described, their ratings and so on. He was perfectly right to make that distinction. We reviewed the content of the transition risk register following the tribunal’s decision and decided that it would be possible to publish material taken from the register to inform both Houses, and members of the public, about as much of the content of the register as we could. That is why the document that we published on Tuesday, which I commend to the noble and right reverend Lord, included key information relating to the risk areas in the register, an explanation of why we considered that to be a material factor, and the actions taken to mitigate those risk areas. We were as candid as we could be, given the decision of principle that I outlined.

[Lord Campbell-Savours]

My Lords, perhaps I may take a stage further the point of the noble and right reverend Lord, Lord Harries. Is there not a converse argument that where civil servants feel strongly, one way or another, about whether there is a risk inherent in a policy initiative, there should be a mechanism whereby that view can enter the public domain so that the public should be informed of strong divisions of opinion, even between civil servants? Is not the risk register on this Bill precisely one of those areas where strong views may have prevailed?

[Earl Howe]

The noble Lord may correct me, but he seems to be advocating a world where all disagreements in private between civil servants become public property. With respect, I disagree with that point of view, which would be the consequence of his position. Section 35 of the Freedom of Information Act explicitly allows for those disagreements to be kept private. There is no doubt about that. Both the Information Commissioner and the tribunal agreed that Section 35 was engaged in this instance, and was there for a reason.

There are several other reasons why we felt that there was a need to withhold information. The need for candour was one. I referred to the risk that publication of the content of the risk register would distort rather than enhance public debate. Another reason was that disclosure could in some instances—including in this case—increase the likelihood of some of the risks happening. Some risks in the register were theoretical rather than real. If people had thought that the risk was real, they might have taken action that would have made the risk a self-fulfilling prophecy. Nobody wanted that.

[Lord Walton of Detchant]

My Lords, having been heavily involved in debates on the Health and Social Care Bill—a Bill of extraordinary complexity and vast in its range—I find it very easy to see how civil servants involved in the handling of the Bill might well have been able to identify substantial potential perceived risks of proceeding with it at earlier stages of its development. However, as the noble Earl said, it is perfectly clear, first, that the Government had the right to keep information of such a nature confidential, even though at the end of the day it appeared that they were flouting a legal decision in order to do so. It was absolutely right that the Secretary of State had the right to impose a veto. In the circumstances, it was absolutely acceptable. Therefore, it is right that the matter should proceed as the noble Earl said.

However, will he not express just a little surprise, in the light of the massive clamour by the public and professional bodies during the passage of the Bill—which has all settled down now that the Bill is an Act—that there are those who perceive in this government decision the possibility of a slightly Machiavellian desire to suppress information that could in the ultimate be somewhat embarrassing? Having said that, I believe that the decision was obviously correct in the circumstances.

[Earl Howe]

I am very grateful to the noble Lord for his support—as I was throughout the passage of the Health and Social Care Bill. It would be wrong not to acknowledge that, to the outside world, the decision to employ the veto looks suspicious. Of course, Governments of whatever party are the subject of suspicion. I am sure that it is well known to noble Lords who served in government that there is very little one can do to dispel impressions of that kind, other than to stand up in Parliament and in public to tell the world what is true. I can only say to the noble Lord that I recognise that those who might take issue with the Government’s decision are entitled to a measure of disappointment, considering that we proclaimed from the rooftops our commitment to transparency. We believe in transparency, and this is apparently an instance where we are not doing what we said we would do. However, there are overriding reasons why it was important for us to take this position.

[Lord Armstrong of Ilminster]

My Lords, I support my noble friend Lord Walton. As I understand it, the Government’s position on the disclosure of risk registers is a matter of principle. It is clearly crucial that an assessment of risk or a risk register should be comprehensive and candid if it is to be of any use. If it is not comprehensive and candid, and if those who compile it are prevented or discouraged from making it comprehensive and candid by having to look over their shoulders in the fear of premature publication, the risk register’s value will be reduced—and there will be a further risk that the Minister will say later, “Why wasn’t I told?”.

[Earl Howe]

The noble Lord, Lord Armstrong, with his immense experience at the top of government, is very familiar with decisions of this nature, and I am grateful for what he said. Perhaps I should make it clear that the decision the Government took was not a blanket decision about all risk registers. The law requires the Government to look at each case on its merits. We believe that a risk register of this particularly sensitive kind is an exceptional matter. The noble Lord, Lord Hunt, pointed out instances of risk registers that might be less sensitive. He mentioned the one relating to Heathrow’s extension. I suggest that that was a less sensitive case. The matter was clearly on a smaller scale; it was less political; and it became an issue after the project had been closed down. Therefore, the release of the register was perhaps not altogether a surprising decision by the then Government.

[Lord Marks of Henley-on-Thames]

My Lords, I apologise to the House for not being in my place when my noble friend read the Statement. However, I read the Secretary of State’s Statement in full. My noble friend mentioned that the previous Administration refused freedom of information requests for disclosure of risk registers on three occasions. Will he tell the House how many times risk register disclosure has been refused by both this and the previous Administration? Does he know that in Wales the Labour Administration have also refused disclosure of a Department of Health risk register? Does he discern any difference of approach to the disclosure of risk registers between this and the previous Administration?

[Earl Howe]

I am grateful to my noble friend. The answer to his final question is no, I do not believe that there is a difference of approach. I do not have data relating to all government departments but, as I said earlier, the previous Administration refused to release the Department of Health’s strategic risk registers in response to three freedom of information requests. Indeed, one of those was responded to by the right honourable gentleman Mr Burnham in language not dissimilar to that which I have used today. A search of my department’s freedom of information database indicates that, since the Act came into force in January 2005, the department has received six specific requests for risk registers. In no case was the request granted. My noble friend also referred to the Welsh example, which is a very interesting one. In April of this year the Labour Assembly Government in Wales refused to disclose a risk register, and it was a health register. The reasons given for withholding that register mirrored exactly those that we are using currently.

[Lord Brooke of Alverthorpe]

As the legislation focuses so much on GPs, can the noble Earl say whether the risk register made an assessment that there would be increasing delays for patients in getting to see their GPs during the transitional period and that those patients would be put at risk? Given that the Government abandoned the previously set targets for the time limit in which GPs have to see their patients, is he aware that patients in London have faced longer waits to see a GP, let alone the GP of their choice? Is that point covered in the recently published documents in the Library? If not, will he make sure that it is?

[Earl Howe]

There are two points in answer to that. I am aware that in London, in particular, there is an issue for some patients wishing to see their GP; indeed only two days ago I had a useful conversation with the Royal College of GPs about that very matter. However, that particular issue has nothing to do with the reforms that the Government have just enacted, but relates to the supply of GPs. We have many more GPs than we had 10 years ago. Unfortunately, however, we need more. There is a target every year for recruiting GPs but we have not quite reached that target in the past three years. We need to do something about that. Action is in hand to address the issue that the noble Lord has raised. However, I would impress on the House that it is not a reflection of the reforms. The reforms have only just been enacted, and we are only now just rolling them out.

[Lord Turnbull]

My Lords—