Health Transition Risk Register

Lord Lansley Excerpts

Thursday 10th May 2012 Commons Chamber

[The Secretary of State for Health (Mr Andrew Lansley)]

With permission, Mr Speaker, I would like to make a statement on the publication of the Department of Health’s strategic and transition risk registers. In November 2010 the right hon. Member for Wentworth and Dearne (John Healey) 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 publication of the Department’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 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 commissioner’s decision, 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 this year 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 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, that they feel free to use direct language and to make frank assessments, and that the Government should, in exceptional circumstances, be able to reserve such privacy absolutely.

The right hon. Member for Blackburn (Mr Straw) said in his evidence to the Select Committee on Justice last month:

“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 said also that there have been

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

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 a safe space for the development of policy, and I have acted throughout in strict accordance with its provisions.

The risk assessment process, carried out by civil servants and detailed in those 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. When 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; and 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, because it fed, and continues to feed, directly into the advice given to Ministers.

The Bill may have become an Act in March, but we are still developing policy 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, and 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 were disclosed at sensitive times in relation to sensitive issues, as would have happened in the case before us, it is highly likely that they would be open to misinterpretation and misuse, with the impact that future risk registers would become anodyne documents of little use. Potential risks would be more likely to develop without adequate mitigation, and that would be detrimental to good government and very much against the public interest. Reflecting that, 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 envisaged times when the Government would need to protect the process of policy development. 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 involved in the modernisation of the NHS. There was the full public consultation, a thorough examination by the NHS Future Forum and 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 that degree of public and parliamentary scrutiny.

On Tuesday I went further and published a separate document that includes the risk areas covered in the transition risk register, as previously set out not least by my noble Friend Lord Howe in another place on 28 November 2011. That 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 documents are available in the Library and on the Department’s website. They further confirm that the purpose of the veto was not in any sense to restrict public access to relevant information, but was to establish that publication of the risk register in December 2010 would have been contrary to the public interest. This Government, more than any before us, 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 national health service, we have published more information about services than was ever the case—not only shining a light on poor performance, but helping to root it out. We now publish the NHS atlas of variation, exposing variations in outcomes throughout the country; we have published data on mixed-sex accommodation, leading to a dramatic 95% reduction in breaches; and we have invested in new information collections on A and E performance, on ambulance performance and on clinical audits.

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

--- Later in debate ---

[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—

[Mr Speaker]

Order. I appeal to the House to calm down. I say to the shadow Secretary of State that he has asked a series of questions and must await the answers. I say to the hon. Member for Islington South and Finsbury (Emily Thornberry), a distinguished practitioner at the Bar, that if she conducted herself in the court room as she has here, the judge would not be amused—and I am sure that she would not do it.

[Mr Lansley]

Thank you, Mr Speaker. Let me be clear. The right hon. Gentleman, as a Minister, refused requests for the publication of risk registers. This risk register, the transition risk register, at the point when it was requested and formulated, was absolutely part of the formulation and development of policy and has continued to be used as part of the development of policy.

To make it clearer what the Labour party actually thinks about the issue, I should say that a Conservative party member recently submitted a request for a risk register to the one place where the Labour Government remain in power—in Wales. What did the Labour Government say? On 12 April 2012, less than a month ago, the Welsh Assembly Labour Government said:

“Release of the risk register would inhibit the way in which such risks are expressed, which potentially makes the management and mitigation of risk more difficult. This in turn would impair the quality of decision making when determining the most appropriate response to an identified risk. Ultimately this could impede the delivery of Ministerial priorities and inhibit the effective management of NHS performance, in both delivery and financial terms.”

That request to a Labour Government for an NHS risk register was turned down for precisely the reasons we have rejected the request for risk registers in relation to the NHS. The Labour party says one thing, but in government it did another and in government in Wales it does another.

Instead of spending his time debating an 18-month-old document—it is now out of date, frankly—the right hon. Gentleman ought to be recognising the reality of what is happening in the NHS. Instead of the risks that he keeps talking about happening, NHS performance is improving, and he should celebrate that. Waiting times are down, there are more diagnostic tests, and waiting times for diagnostic tests have been maintained. There is extra access to dentistry, cancer drugs and new cancer medicines. Health care-acquired infections in the NHS are at their lowest-ever level and the performance of the NHS is continually improving. As shadow Secretary of State, he would be better off celebrating the performance of the NHS than trying to run it down.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

My right hon. Friend quoted some of the evidence that the Justice Committee is receiving, including very interesting evidence from the right hon. Member for Blackburn (Mr Straw). It would help the Committee if it had an understanding of whether this instance is a special and particular case or whether it is seen by quite a lot of people in the civil service as a test case of whether there really is a safe space in which they can freely advance arguments about risk.

[Mr Lansley]

I am grateful to my right hon. Friend. This case is seen and was judged by me and my colleagues on its particular circumstances; as I made clear, it is an exceptional case. One of the arguments that underlay our decision was necessarily the one about the principle that we were assessing. That principle is very clear: the Freedom of Information Act envisages that there should be an exemption for the formulation and development of policy, and that under those circumstances the public interest in the proper development of policy could outweigh the public interest in disclosure.

In this case, we are very clear—and my colleagues have been very clear—that the risk register, when it was produced, was at that time instrumental to the formulation and development of policy and that therefore the public interest did not require its disclosure.

[John Healey (Wentworth and Dearne) (Lab)]

On Tuesday, the Health Secretary said that the veto was justified because the NHS risk register case is exceptional. On Wednesday, Earl Howe, the Health Minister, said:

“This isn’t just about the NHS. The Cabinet collectively took a decision that this was a matter that extended across Government.”

On Tuesday, the Health Secretary said that he was blocking publication, but on Wednesday, the same Health Minister said:

“We have every intention of publishing the risk register”.

This is a conspiracy and a cock-up. Is it not typical of this Government—too incompetent even to organise a decent cover-up?

--- Later in debate ---

[Mr Lansley]

I am afraid that the right hon. Gentleman knows perfectly well that I took the decision to veto the publication of the risk register, in justification of the Government’s view that it should not be disclosed, in December 2010. I am now making it very clear that I have put all the risk areas covered in the risk register in the public domain in the document that sets them out. The issue is not about the publication of the risk register now; it is about whether it was right to refuse its publication in December 2010. He knows perfectly well that that is the question and that is the judgment we made.

[Stephen Barclay (North East Cambridgeshire) (Con)]

If the position of Labour Members is that the ministerial veto should apply only to Cabinet discussions, is it not odd that the legislation they passed does not contain that description? Is it not the case that the right hon. Member for Blackburn (Mr Straw) spoke for the reality of government rather than the opportunism of opposition?

[Mr Lansley]

I am grateful to my hon. Friend. I am sorry that the right hon. Member for Blackburn is not here; I told him that I would quote from his evidence to the Justice Committee. I will therefore not attempt further to interpret what his view might be. I think that what he said to the Justice Committee was consistent with the view that those implementing the FOI Act should bear it in mind that there was an exemption for the formulation and development of policy, as my hon. Friend implies. There was not an exemption for Cabinet collective discussion; there was an exemption for the formulation and development of policy. In each case, we have to weigh the public interest very carefully. Clearly, there will be many circumstances in which the public interest in disclosure outweighs the necessity for there to be a safe space for private discussions about issues of risk. In this case, in December 2010 my colleagues and I were clear that it would have been wholly wrong, and disruptive and damaging, to the policy development process for the document to be published at that time.

[Nic Dakin (Scunthorpe) (Lab)]

What does the Secretary of State so fear about what is in the risk register that he refuses to show it the light of day and defies a tribunal ruling?

[Mr Lansley]

I know that I cannot ask the hon. Gentleman a question, but I wonder whether he has read the document I published on Tuesday about what is in the risk register. I bet he has not.

[Karen Bradley (Staffordshire Moorlands) (Con)]

Has the Secretary of State of State seen any previous risk registers, and does he think that their early publication may have affected the policy development of the previous Government?

[Mr Lansley]

I have seen many risk registers. Of course, I do not have access to the documents of the previous Government, so I cannot judge what the precise circumstances were in which the right hon. Member for Leigh (Andy Burnham) refused to publish a risk register, his predecessor as Secretary of State for Health refused to publish a risk register, or, indeed, the right hon. Member for Wentworth and Dearne (John Healey) refused to publish a risk register when he was a Treasury Minister.

[Kate Green (Stretford and Urmston) (Lab)]

In my constituency, the future of our hospital services, especially our accident and emergency service, is deeply uncertain. GP commissioning is colliding with massive cuts to social care budgets, creating considerable uncertainty about how that will pan out. Our ambulance services are being reconfigured—we are losing an ambulance to Salford—and our community services are being broken up and contracted out in penny parcels. Given all this uncertainty as transition begins to take its course in Trafford, what guarantees can the Secretary of State give to my constituents that they will be fully informed of the risks associated with such change when he is setting such a bad example nationally?

[Mr Lansley]

If the hon. Lady had looked at the document I published on Tuesday, she would realise that none of the issues she is talking about—quite properly, on behalf of her constituents—was addressed in November 2010 in the risk register. In so far as there were issues concerning the transition, not only have they been addressed but we have set out how we have mitigated them, with the specific objective of ensuring that during the process of transition there is not only business as usual in the NHS but performance is improved. That is why Labour Members should take on board the point that I made at the end of my response to the right hon. Member for Leigh: the performance of the NHS is improving during this process of transition.

[David Rutley (Macclesfield) (Con)]

Has my right hon. Friend received any representations from Labour Front Benchers about releasing the 2009 risk register, which they refused to publish when they were in office?

[Mr Lansley]

My hon. Friend may be surprised to know that I have received no such representations from Labour Members.

[Yvonne Fovargue (Makerfield) (Lab)]

Is not the real reason the Secretary of State is vetoing publication of the risk register that it shows what the doctors, the nurses and the midwives warned of all along—that this reorganisation is dangerous and reckless, and actually puts patients at risk?

[Mr Lansley]

It does not say that. Before Labour Members get up to read out the Whips’ handouts, why do they not read the document that was published on Tuesday about what is in the risk register and how we have mitigated these risks? The hon. Lady’s point is unjustified, not least as regards nurses, because the general secretary of the Royal College of Nursing, in April 2011 and again in December 2011, sat in my office and told me, “We support the Bill.”

[Damian Hinds (East Hampshire) (Con)]

Will my right hon. Friend detail the changes in Department of Health policy on the publication of risk registers before or since May 2010?

[Mr Lansley]

The Department of Health’s risk management strategy is the same now as it was in 2009 or 2010.

[Alex Cunningham (Stockton North) (Lab)]

The risk register that the Government fear publishing apparently points to potential major failures, including financial ones, in their plan for the NHS. Within weeks of coming to power, the Government ditched Labour plans for a new hospital for my constituents as it was considered too costly or financially risky, yet several hospitals could be built with the money wasted through their reorganisation. When will they recognise that and give their backing to the new financial plan for our hospital?

[Mr Lansley]

The hon. Gentleman knows perfectly well that the reason we refused that support is that his local trust is a foundation trust. It was never contemplated that foundation trusts undertaking major capital projects in excess of £400 million should simply expect the Department to supply a capital grant for that purpose. Without commenting on the merits of the proposal, I think that his trust has since developed new and improved proposals. I am not sure that they have come to me in any sense at this stage, but when they do I will certainly be willing to look at them very carefully with the Minister of State, my right hon. Friend the Member for Chelmsford (Mr Burns).

[Craig Whittaker (Calder Valley) (Con)]

Will my right hon. Friend tell the House how many times, under the previous Government’s many reforms of the NHS, risk registers were routinely published as a matter of course?

[Mr Lansley]

rose—

[Mr Speaker]

Order. The difficulty with that question, although I am sure that it was sincerely intended, is that it relates to the policies of a previous Administration, for which of course the Secretary of State has no responsibility.

[Mr Gareth Thomas (Harrow West) (Lab/Co-op)]

Should the Information Commissioner and the tribunal decide to approve the release of other risk registers, be it those that cover other work by his Department or the work of other Departments, such as the Work programme, has the Cabinet already decided also to veto their release?

[Mr Lansley]

No. The hon. Gentleman should know that in accordance with the FOI Act, if a ministerial veto were to be considered, it would be considered on the merits of any individual case.

[Dr Thérèse Coffey (Suffolk Coastal) (Con)]

Will my right hon. Friend confirm that he has followed the policy laid down by the previous Government on the application of the Act and that nothing has changed in that respect in policy terms?

[Mr Lansley]

Of course, Mr Speaker, I cannot comment on the policies of the previous Labour Government. I would be happy, if the right hon. Member for Leigh agrees, to publish the risk management strategy that the Department of Health had in place in 2009, which was not placed in the public domain at that time.

[Derek Twigg (Halton) (Lab)]

It is no surprise that the Secretary of State is running scared of publishing the risk register, because, as the House should not forget, an awful lot of measures now come through secondary legislation because the Government left a lot of detail out of the Health and Social Care Bill. In his statement—this is not from a Whips’ spreadsheet, let me add—he said: “If such registers were disclosed at sensitive times in relation to sensitive issues, as would have happened in the case before us, it is highly likely that they would be open to misinterpretation and misuse”. At what point does he think that there will cease to be “sensitive times”, and will he publish before the next general election?

[Mr Lansley]

I will repeat what my noble Friend Earl Howe said: we have every intention of publishing the risk register, but will do so when it is no longer directly relevant to the formulation and development of policy.

[Bob Blackman (Harrow East) (Con)]

Having been involved in the production of risk registers for many years, I know that they are pertinent to the point in time at which they are produced and require free thinking by those who put them together. There must then be a mitigation strategy to prevent the risks from ever happening. The key issue is this: what does my right hon. Friend think would happen to the policy advisers who put together risk registers for Ministers if these highly sensitive documents were put in the public domain?

[Mr Lansley]

I am grateful to my hon. Friend. To be absolutely clear, some risk registers are designed to be published. For example, strategic health authorities publish risk registers, and have done for a period of time, because they are designed to be published. The way in which the Labour party used the risk registers published by strategic health authorities, I think at the last Health questions, amply demonstrated that not only are they open to misrepresentation and misuse, but that the Labour party is very keen to misuse and misrepresent them. Even more so would it misrepresent and abuse the information in risk registers that were designed for the frank expression of advice if they were published. I do not need to speculate further in reply to my hon. Friend, because Lord O’Donnell, the former Cabinet Secretary, made it very clear that we would end up with bland, anodyne documents that did not serve the management purpose for which they were created.

[Bob Stewart (Beckenham) (Con)]

May I follow up the point made by my hon. Friend the Member for Harrow East (Bob Blackman)? If civil servants did not trust that what they said to Ministers was said in confidence, we would get poor advice. Some things must remain confidential until the time is right for their publication. Does my right hon. Friend agree with that?

[Mr Lansley]

I am grateful to my hon. Friend, and I do agree with him. The Freedom of Information Act recognises explicitly that what he says is true, and that a judgment should therefore be made by Ministers about where the balance of public interest lies. That is what we have done.

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