David Heath MP writes… Freedom of Information and the NHS risk register – we should publish as much as possible

It was 12 years ago that I sat on my very first House of Commons bill committee, and a pretty important bill it was too. We were considering what was to become the Freedom of Information Act 2000, and I was helping Bob McLennan try to stiffen up what was in danger of becoming, in the hands of the last government, an increasingly flaccid piece of legislation.

After decades of campaigning, the 2000 Act was certainly a longtime in coming for Liberal Democrats. It was Clement Freud who first introduced a Private Members Bill in 1978 that attracted considerable support, but fell at the 1979 election. It was another Liberal Democrat MP, Archy Kirkwood, who in 1987 had his Access to Personal Files Act passed to give the public access to manually held social work and housing records.

During the 2000 Bill Committee, I remember working closely with campaigners for freedom of information such as Maurice Frankel, and with like-minded colleagues such as the former Labour MP for Stoke, Mark Fisher, to remind the Home Secretary what had been promised in opposition, indeed what had been set out in a remarkably progressive white paper, compared with what actually appeared in the bill. In the end, I think we improved the legislation, and the end result was rightly seen as a major step forward in making British politics and public life more transparent.

Not that the law was incapable of further improvement, not least because the numbers and types of bodies carrying out public functions has changed so substantially since. That’s why I welcome what the present government has been doing to widen the scope of the provisions; we’ve already extended the Act to all academy schools through the Academies Act, to the Association of Chief Police Officers (ACPO), to the Financial Ombudsman Service, and to the Universities and Colleges Admissions Services (UCAS).

What’s more, last week the Freedom Act received Royal Assent. That provided for the extension of Freedom of Information provisions to over 100 companies wholly owned by public authorities. But we mustn’t stop there.

The Minister responsible for the FOI Act is my colleague Lord McNally, and he is committed to ensuring that the Act works better and is extended even further, once the Justice Select Committee has finished their report into how the Act is working in practice. Chaired by Liberal Democrat MP Sir Alan Beith, the Committee is currently conducting post-legislative scrutiny of the Act, and I very much hope that when they bring forward their analysis we will have even more ideas for strengthening transparency and accountability within Government.

So it’s ironic, given all that good work, that one of the major rows we’ve had over recent months has been the difference of opinion on what should or should not be released in the case of the so-called risk register on the Health and Social Care bill.

The government has resisted publication on the grounds that policy advice from civil servants must be kept confidential if it is to have any value. Others have said that they ought to know what the consequences might be of what by any measure was a controversial, if in my view greatly improved, bill. Who’s right?

Paradoxically, I suspect the answer is both. The principle of not releasing the private advice of civil servants as part of the process of policy formation was recognised even when we were arguing over the original legislation line-by-line. Indeed, I remember trying to persuade ministers then to differentiate between the information on which policy was based — statistics, factual information and the like — which ought to be made available, and the opinions expressed by policy-makers disclosure of which might harm the process.

And I pointed to the provisions in the New Zealand legislation, which we often took as a model, which has a qualified exemption for information to be withheld to “maintain the effective conduct of public affairs”. So for the government to hold to the principle is not unreasonable.

But that shouldn’t be used as a reason to withhold everything connected to that advice. That’s why I’ve been arguing that, while it’s right to maintain the exemption principle, it would also be right to publish as much of what is contained in the risk register as possible so that people can form their own judgements.

Apart from anything else, much of it is either already in the public domain or has been superseded by later amendments in the bill, so it’s hard to see what damage could now be done. Indeed, probably the worst damage for those interested in ensuring transparency would be to set the precedent that the whole advice could be released, because of the effect on candour and disclosure in the future.

So we should publish, but not be damned for not releasing verbatim advice. It’s not a conspiracy, it’s a necessary protection of openness in the future. And while I would accept, if not agree with, criticism from those who have been entirely consistent in their views, the last people who should cry foul are Labour ex-ministers who, far from publishing risk registers in full, preferred to publish not at all.

* David Heath is MP for Somerton and Frome and Minister of State for Environment, Food and Rural Affairs.

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40 Comments

  • Chris Rennard 8th May '12 - 9:20pm

    Risk registers did not exist when FoI legislation was introduced in 2000.  Labour vetoed the release of them when in office.  Some advice to Government must be given on a confidential basis and all ‘risk registers’ cannot be published.  Publishing them all would mean that important advice would not be given in the first place.  But the key information in relation to the Health and Social Care Bill has been published. PS Callaghan’s govt offered to let Clement Freud have his FOI Bill in 1979 if he agreed to accidentally miss his train from the Liverpool Edge Hill by-election on the day of the no confidence vote in March 28 when the Labour Govt fell.
     

  • I’ll try again.

    This is hypocrisy. We have asked MP’s to make a decision on the future of the nations Health Service without access to a document detailing the potential risks. This is not about protecting advice, or we should never have seen the legal advice for the war in Iraq, this is about saving face.

    This is a shameful day for the coalition, the Information Commissioner ruled and you the government have ignored. This cannot be put purely at the feet of the Health Secretary, this Government as an entity is now as responsible for restricting information as those Labour Ministers you mention. When are the coalition going to stop descending to the level of the last Government on issues such as this. I don’t care what Labour did, we voted them out. All that matters now is what the coalition does. And it is not looking good from the open government perspective.

    The time will come when the Lib Dems will rue this decision. It may be as soon as 2015. Imagine the response the first time you call for openness, the first time we the public deserve to see information the then Government decides is too inconvenient to share.

    Another principle is thrown away and probably another few votes.

  • @Chris Rennard
    Sorry but not a good defence. Are us mere mortals to trust politicians (you know the ones who brought us the expenses scandals) that “the key information in relation to the Health and Social Care Bill has been published”. Why not trust them when we are told the case for war was legitimate ?

    The risks of implementing a piece of legislation should be available to all before it is passed.

  • Chris Reynolds-this is nothing to do with what labour has done in the past,this about the LDs throwing away another principle,open government,yet your only defence is labour did or didn’t do something so you don’t have to,if theirs nothing to hide in the risk register then why won’t you release it as has been ordered,it’s the about time the LDs started taking responsibility for their actions in government and stop using excuses like labour did/didn’t do it or it’s Tory policy but they’re forcing us to vote for it.

  • Giselle Williams 8th May '12 - 9:38pm

    http://www.dh.gov.uk/health/2012/05/transition-register/

    DoH announcement just received by me which is headed Risk Register will not be published.

    Thought you’d like to know (since LibDems enabled this).

  • In terms of improving FOI, the monarchy would be a good start. The exemptions they have are scandalous, and the argument that the Queen and Charles are so neutral and non-interfering on policy (and asking for as much money as possible) that their communications with Ministers should be absolutely private doesn’t really hold water.

    On the risk register, the suggested approach seems very reasonable.

  • ……………………..Indeed, probably the worst damage for those interested in ensuring transparency would be to set the precedent that the whole advice could be released, because of the effect on candour and disclosure in the future……………

    Thank you for saving us from ourselves.

    Whatever happened to, “The Full disclosure” we demanded of the Chilcott enquiry? Nick Clegg threatened a boycott and accused Labour of “suffocating” the inquiry if government departments vetoed sections of the final report. On the same grounds, David Cameron, dismissed the inquiry as “an establishment stitch-up”.

    It now appears that, “The truth, the whole truth and nothing but the truth” only applies when in opposition.

  • It is worth remembering that the Lib Dems in 2009 proposed abolishing the ministerial veto altogether, so it is depressing to see Lord Rennard defending its use.

  • I would agree with others that what previous governments did or did not do has absolutely nothing to do with what the Coalition does in the present time [we keep hearing this, mind you going right back to 1979 is some sort of record!]. The LibDems in pre General Election times were very keen on open government (I totally agreed with them), now they are not so sure. I am certain that the Liberals and LibDems of ‘yesteryear’ would have kicked up a serious stink re. the Risk Register – Coalition or not. But it seems todays LibDem choose to keep their heads below the parapet. What has happened to the party that included the Young Liberals of a generation ago?, they were radical but magnificent with it.

  • The refusal to publish looks very fishy and as if there is something to hide.

  • @Margaret fishy, it’s utterly disgraceful; what free information will the government withhold next for the greater good.

    The minimum we should expect from the LDP is transparancy in governance which is now laughable considering the government has actually been ordered to release this information.

    After the coalition is over how can we campaign against such breaches of transparancy.

  • Trying to get away with not publishing risk registers is one thing, but using ministerial veto of a tribunal’s decision after it’s reached a ruling? You have to wonder what’s in it that could be that bad…

  • I really do not get it.

    The governments excuse for not releasing the risk register is because, apparently, civil servants would be less reluctant to give “impartial” advice on “worse case scenarios” if these registers where made public.

    Why would the public turn on civil servants for doing their jobs and out lining risks to the HSCB? It makes no sense at all.

    It seems to me that when anything goes wrong with ANY government department, whether it is to do with Health, Social Services, Immigration, or even the culture media and support, when something goes wrong in those departments it is the “special advisers” and the “civil Servants” who are first for the chop and used as an escape goat to protect the ministers in charge of that departments backside.

    This is not the kind of fair and open, more honest, transparent politics that was promised by both parties in government.

    You should be ashamed of yourselves, there will be nothing in tomorrows Queen speech that will matter one Iota to the british public, many of whom are scared, bewildered and feel abandoned by this coalition government

  • I’ll just make one more attempt to summarise the points I made in the comments that have been deleted.

    From the article above and Lord Rennard’s comment it would be easy to get the impression that the Freedom of Information Act did not exempt the disclosure of information which would damage the “effective conduct of public affairs.” But obviously it does. There are two closely related exemptions – 35 and 36 – that deal with precisely this issue.

    The question here is whether the effect of these exemptions should be determined by the appropriate judicial authorities, or whether ministers should have the power of veto and therefore be effectively above the law.

    The position of the Liberal Democrats before the last election could not have been clearer. They advocated abolishing the ministerial veto. As far as I know that is still Liberal Democrat policy. I understand that in a coalition government there will be some constraints on what ministers can say, but is it really to much to hope that people like Lord Rennard should continue to advocate party policy?

    For informed discussion of the issues involved, see the Panopticon blog:
    http://www.panopticonblog.com/2012/03/09/disclosure-of-nhs-risk-registers-%E2%80%93-the-%E2%80%98chilling-effect%E2%80%99-argument-heats-up/
    http://www.panopticonblog.com/2012/04/15/chilling-effect-safe-space-and-the-nhs-risk-registers/
    http://www.panopticonblog.com/2012/05/08/the-ministerial-veto-strikes-again-%E2%80%93-but-this-time-not-in-respect-of-cabinet-minutes/

  • I wish I was as laconic and brilliant as Sir Clement Freud, cited in this article, who would probably say something cutting in response to the risk register not being published.

    I understand that there would be “noise” associated with the advice given by civil servants, and that political capital would be made out of its publication. However, we’re Liberals: we are supposed to trust in the wisdom of the people to discern what is important and then make decisions for themselves. By keeping the risk register unpublished, we undermine that belief: we suggest that we trust the people, but only so much and so far. We’re open, but not entirely open. This isn’t right: publish it, and be true to principle.

  • @christian

    Please get on this forum more as its 100% right about what a lot of people believed the Liberals (were) about….

  • Simon -

    You’re assuming that people have no discernment. This is not a particularly Liberal position to take: Clegg himself said that what makes the Liberal position distinct is its faith in people.

    I say publish; it’s a cliche, but still relevant – “sunlight is the best disinfectant”. Otherwise you have the press and Labour carping on about “What does the Coalition have to hide?”

  • Richard Dean 9th May '12 - 9:02am

    Is it not easy enough for interested people to work out what MIGHT go wrong, without needing to refer to this document?

  • Richard-

    Would you rather have the products of the blogosphere’s imagination or the actual risk register? Somehow, I think the latter is less sensational than the former.

  • Richard Dean 9th May '12 - 9:30am

    @Christain de Feo, I would rather have the products of the blogosphere’s imagination. The more people that try to indentify risks, the more risks are identified, and the safer the thing can become. For the same reason, I’d prefer people to keep thnking, rather than stop thinking and read what some perhaps-only-partially-informed civil servants imagine.

  • @Richard

    The problem is that the civil servants are likely to have better information to hand, which could inform the blogosphere discussion; I suggest that the blogosphere discussion would be enhanced with the risk register not become subject to flights of fancy. We lose as an electorate if we are not fully informed; this is gigantic reform which is literally a matter of life and death. We should want, no, demand to know everything that has gone into it.

  • “The more people that try to indentify risks, the more risks are identified, and the safer the thing can become.”

    Then why on earth would you want information from the blogosphere BUT NOT the official risk register? Surely you should want both!

  • Richard Dean 9th May '12 - 9:45am

    @Christain de Feo, No, Precsisely because it is a matter of life and death, we should NOT want to demand to know everything. Most of the blogosphere don’t have the skills needed to save the patient, and those that do don’t need a civil servant’s risk register’s help. Better to have an expert surgeon do a heart operation, rather than an inconsistent rabble with many different skillsets and motives.

  • @Richard

    That’s an astonishing lack of faith in the discernment of the electorate; this is supposed to be a democracy in which we as citizens essentially are trusted with the task of governing ourselves through the elected representatives we select. The task doesn’t end with that selection: it is up to us to stay informed, to argue, to debate, to pressure and to correct where necessary. In order for this process to work, we need to know what our government is doing, hence open government. I don’t accept the thesis that a bit of ignorance is called for: that instantly creates a separation between the citizenry and a political class which is “in the know”.

  • @Simon McGrath
    “The purpose of a Risk Register is to highlight all the things which MIGHT go wrong.”

    Which is exactly the information legislators need in a Parliamentary Democracy. We do not have an all powerful executive. Like it or not, even if we had a proportional system, all MP’s should be able to decide an issue on the basis of the best possible information.

  • @Richard Dean
    “Is it not easy enough for interested people to work out what MIGHT go wrong, without needing to refer to this document?”

    I work in healthcare and would not be able to work out everything that MIGHT go wrong. We shouldn’t be encouraging a massive duplication of effort that can come to different conclusions and judgement regarding likelihood and severity of risks. The civil servants within the department would have access to the best, most current and most accurate information. Opposition parties and the public at large will not.

  • Richard Dean 9th May '12 - 10:41am

    @Christian. That’s not a lack of faith in the electorate at all. It’s a lack of faith in you! What will happen if the risk register gets published? The public will see politicians wasting time on futile repetition of arguments on something that has already been decided by a nominally fair vote. We will gain their further contempt. Why not plan to win for a change? Let’s get with what’s happening in the real world! The news today is Greece, France, and how it affects us.

  • @Richard

    If the risk register is not published, then there will be continuing controversy. Let’s say for the sake of argument that the reforms don’t go smoothly (for the record, I don’t believe they will); let’s say gaps in treatment are exposed. What will happen because the risk register isn’t published is that whatever bad happens will be ascribed to this hidden document and the warnings which might be contained therein. The Liberal Democrats will then be blamed for not warning the public about these risks and not exposing them to public scrutiny. In other words, it will rumble on and on because there wasn’t a completely open discussion from the start.

    Our bias should always be towards open government and informing the public. Nothing you’ve said convinces me otherwise, nor should we allow today’s headlines to diminish the importance of maintaining this stance.

  • Richard Dean 9th May '12 - 10:52am

    @Steve Way. You are not the only person on the planet. But you are likely to be quite well able to identify many of the risks that can affect your part of the healthcare system. Lots of other people in healthcase (including users) will be able to identify risks for their parts too, and one of the best options for us all is if all if you all keep thinking, watch out for problems, and remediate them within the system when they arise. Stress is part of every job.

  • Richard Dean 9th May '12 - 10:55am

    @Chirtian. Today I am going to be Joe Public. I hope my employer doesn’t see me spending so much of her time on this irrelevant issue. If things go wrong then it is up to you to put them right. Full stop! (Tomorrow I am going to be Greece, but I reserve the right to break all agreements and be someone else instead :-) ).

  • Richard Dean 9th May '12 - 10:58am

    @Christian, Sorry about the typo. I am actually Joe “Mr Typo” Public. Everything is usually reccoverable except when I miss out short words like “not”. And zeroes of course!

  • @Richard Dean
    I am aware that I am not the only person on the planet, but actually in terms of the risk register I am not important neither are you, or any of the service users. We did not get to vote on this issue. The simple fact is we asked our elected MP’s to make a decision without access to the potential outcomes of that decision which were restricted to a small subset of them. That is just a recipe for bad law.

    The only information in the public domain has been leaked not released formally. This there has been no confirmation of it’s veracity. Even if it is 100% accurate it was a draft, many of the risks could have been removed or mitigated and others could have been identified.

    If we wish Parliament to make decisions rather than the presidential style of Blair then Parliament needs to be properly informed.

    The other issue is that Lib Dems used to stand for open Government, the Information Commissioner made very clear that this information should have been in the public domain, that is his job. In opposition Lib Dems opposed the use of a veto to overrule this but now support it..

    That is Hypocrisy. Either we believe in openness or not. If not, the party needs to stop moaning about the last Government hiding things from Parliament about the invasion of Iraq. They have adopted the same principle of hiding risks and only providing whatever sexed up information they believe will support their case.

    So it is two issues, should MP’s have had as much information as possible prior to making their decisions, and then should we the public have access to information.

    The second one should be clear cut, Liberals used to believe in, and trust people. It is a simple matter of principle, and one that David Heath and Chris Rennard found easy to hold in opposition.

  • Richard Dean 9th May '12 - 11:35am

    @Steve Way. MPs had plenty of time to assess risks, and there were plenty of people ready to smake suggestion of more risks. That’s all old hat. Let’s believe in practical solutions that wil benefit the electorate. Let’s put the electorate first, and let’s make ideology about information etc a lesser priority.

  • @Richard Dean
    MP’s may have had time to assess risks, but they did not have the resources of one of the largest Government Departments to do so. And it is not old hat, as has been stated above by other, if the NHS changes fail, and fail on a risk that was not only predictable, but predicted, this document will become poison to the Government.

    As an example, the most damaging information to haunt Labour over Iraq was where they were warned of potential consequences and either ignored the warnings or failed to plan for them.

    As for putting the electorate first, then why on earth are you against allowing them the type of access to information that the Lib Dem party used to support.

  • Richard Dean 9th May '12 - 12:21pm

    @Steve Way. If things fail, there’ll be plenty of people blaming plenty of other people, it won’t be nearly as clear cut as you predict.

  • Here’s an interesting comment on the use of the ministerial veto:
    ““Ministers are losing their sense of proportion in their desperation to avoid political embarrassment.
    This completely undermines [the party's] claims to be committed to open government. The veto is clearly a threat to freedom of information and should be abolished.
    It is an insult to due process that [the minister] could not even be bothered to come before Parliament to defend his decision in person.”

    (That was the Lib Dem shadow Justice Secretary, David Howarth, commenting on Jack Straw’s use of the veto in December 2009.)

  • Guy Patterson 10th May '12 - 10:22am

    I wonder what we would do with the information in the Risk Register. Every action has its pros and cons, and management requires that the pros be weighed against the cons. The Register would only give us the cons, and would lead to a one sided debate by people carrying no responsibility for the outcome.

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