Lord Charlie Falconer is Labour’s Constitutional Affairs spokesperson in the House of Lords.
The Government is fighting tooth and nail to prevent the public seeing a document that contains an objective assessment of the risks which the NHS face if the proposed reforms contained in the Health and Social Care Bill become law. The ‘risk register’ they seek to keep secret is prepared by civil servants and contains a list of the risks the NHS faces from the Bill, the extent of those risks and what steps are being taken to reduce them.
The Information Commissioner overruled the Department of Health’s decision not to make the risk register public, and said the public interest was strongly in favour of its publication. The Information Tribunal, in a decision issued with urgency on Friday (because the Bill will shortly reach the end of its parliamentary consideration), dismissed the Government’s appeal against the Information Commissioner’s decision.
The point of the Freedom of Information Act 2000 (FOI) is to ensure that the state takes decisions in a way that the public can see and understand. The more the public have access to the same material as the state in formulating policy, the better the policy will be. Where there is openness, the people making the decisions have to be able to defend policies on the merits rather than on the basis the public don’t understand.
This is precisely the sort of document that we envisaged would be made available through FoI –where seeing the document would assist the public in evaluating the pros and cons of a particular policy. It’s not a document where the interests of the state might be damaged by its disclosure - for example because it names a whistleblower, or an informer, or because it undermines collective responsibility because it reveals differing views amongst Ministers.
The arguments advanced for secrecy are the arguments of a state which has not accepted FoI. Lord O’Donnell, the former Cabinet Secretary, gave evidence to the Information Tribunal to the effect that if the document was made public civil servants would not in the future be willing to give frank advice to their Ministers.
The frankness of official advice did not change after the FoI Act was brought into effect. Lord O’Donnell expresses the knee-jerk response of a previous generation. But there is no going back on FoI.
The key time for the risk register to be made public is before the Bill has completed its passage through Parliament. That means now.
The Government can appeal again to another tribunal. If they do, they will be abusing the appeal process, unless that tribunal agrees to resolve the whole issue including its decision within a very truncated timetable – in order to allow the debates which are still going on to be informed by the risk register. Ministers have almost succeeded in keeping the document secret by a legal campaign which has lasted 15 months.
Parliament needs to come to the right conclusion on the Health Bill – otherwise Parliament itself will be further undermined. And it matters so much for the public. The Government should be helping Parliament to do that not exploiting the law to pull the wool over people’s eyes.
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