Of course, I believe the risk register should be published. Having made the FoI request back in November 2010, I would say that, wouldn’t I? But the government has now lost twice in law.
Rarely has the tribunal’s judgement been blunter. “We find the weight we give to the need for transparency and accountability in the circumstances of this case to be very weighty indeed”, it said. And rarely has the case put by very senior civil servants been more bluntly rejected. The judge said of the former cabinet secretary’s evidence: “Lord O’Donnell brought to our attention his own view of the likely chilling effect… There was no actual evidence of such an effect”. He reported of the Department of Health permanent secretary: “Ms O’Brien says that risk registers allow the DH to ‘think the unthinkable’... We have seen the registers and find it difficult to understand how they could be described in such a way, particularly the transition risk register”.
As a minister for ten years, I understand the need for a ‘safe space’ for frank policy discussion and the importance of weighing risk in policy decisions. However, I believe that more open and accountable government is better government. I have pressed for the non-routine disclosure of the risk register for the biggest reorganisation in NHS history because the case for doing so is exceptional, and the balance of public interest lies in releasing this information.
The tribunal accepted my argument, concluding: “This register would have informed the public debate at a time of considerable public concern. It would have helped the public understand whether the government had understood the risks.. and what measures it was considering for dealing with them. Disclosure could have gone a long way to alleviating these concerns and reassuring the public”.
In truth, the DH has been on a hiding to nothing throughout these NHS reforms. The huge upheaval launched by the white paper just two months after the Coalition Agreement pledged “to stop top-down reorganisations of the NHS” was unexpected, and the civil service and NHS were both unprepared. So O’Brien was left arguing to the tribunal that risk registers are integral to policymaking, while confirming that the first version was only prepared 3.5 months after all the main policies had been announced.
When an early draft of that first risk register was leaked last month, everyone seized on the politics but missed the professional significance. This late September draft – produced more than two months after ministers launched the white paper – showed 18 red areas, of which six lacked any suggestions of appropriate mitigating action. The civil service has been playing catch-up from the start on Lansley’s NHS reforms, and in the early months the department was seriously off the pace.
So this week is decision time for government. If health ministers have the sense, they’ll want to get any bad news contained in the risk register into the public domain now that the bill is safely on the statute book. However, I suspect that caution at the centre of government – and executive dislike of FoI rights – may mean a block on departmental disclosure.
Government could dig in, drag out the inevitable release of the NHS risk register, and meanwhile put risk registers regularly in front of ministers to pretend they really are a genuine part of policymaking rather than a “basic tool for the management of policy implementation”, as the prime minister has conceded to me. This would be a mistake. It would also miss the big challenge to government in this case.
Although every FoI request involving the qualified S35 exemption – which excludes internal discussions on policy options from FoI requests – is considered on its merits, I believe the NHS risk register will become a landmark. Its high profile sets fresh expectations about people’s right to know the risks the government is taking and its mitigating work, and reinforces Parliament’s right to know as we legislate. Public debate, policymaking, legislative scrutiny and professional confidence in the NHS reforms would all have benefited from better information about the risks involved.
The government may now see its main challenge as the narrow decision on this case this week. I see the challenge as wider and longer term. I believe this case means the civil service must raise its game in assessing and managing risks on large-scale policy programmes, and make publication of this information more routine. The public and Parliament will rightly require it in future.
John Healey is the MP for Wentworth and Dearne and a former health secretary