On NHS, Tribunal Rules That Tories Violated Manifesto Promise, Calls Public Interest In Risk Register “Very High, If Not Exceptional” – OpEd


Less than three weeks since the Tory-led coalition government’s dreadful NHS reform bill was passed— aimed primarily at allowing private companies greater access to the NHS than ever before — a damning document has been published, which should have derailed the entire process.

The document in question follows the judgment of the Information Commissioner, who, last November, ordered the government to release its risk register regarding the dangers of its planned NHS reforms. The government appealed the decision, but was ordered to release the risk register for a second time just a week and a half before the bill was passed, and it is this ruling, issued by a tribunal led by Professor John Angel, that is so damaging.

Ever arrogant, the government refused to accept the Information Commissioner’s judgment, and the tribunals’ reponse to the government’s appeal, as did peers and MPs, who should have delayed their votes to approve the bill — if not until the risk register itself was published, then at least until the Commissioner’s judgment was made available.

The judgment, which was published on Thursday (PDF), is damning for the government, as Dr. Éoin Clarke explained on his blog The Green Benches. He wrote:

I have never read a more damning judgement by a UK court on a government’s flouting of democracy … [T]he court unanimously decided that the NHS Bill was contrary to the Tory manifesto, unexpected, rushed, far reaching, pre-judged and without proper consultation. In effect, the judgment implies that the Tories cynically hid their plans to carve up the NHS prior to the 2010 election. You and I knew that of course, but to read it in black & white from a court judgment is truly unprecedented. This document … is a devastating indictment of the Tory handling of our democratic process. The judges unanimously ruled the Tory government should release the full contents of the NHS Risk Register.

In particular, Dr. Clarke singled out paragraph 85, which he described as leaving him “numb with shock.” He added, “Historians now have the black and white evidence from our own judicial system that the Tory party have betrayed the trust of the nation in the way they introduced and passed this bill. History will not forget this utterly shameful deed, and I sincerely hope that the voters do not either.”

This is paragraph 85:

From the evidence it is clear that the NHS reforms were introduced in an exceptional way. There was no indication prior to the White Paper that such wide-ranging reforms were being considered. The White Paper was published without prior consultation. It was published within a very short period after the Coalition Government came into power. It was unexpected. Consultation took place afterwards over what appears to us a very short period considering the extent of the proposed reforms. The consultation hardly changed policy but dealt largely with implementation. Even more significantly the Government decided to press ahead with some of the policies even before laying a Bill before Parliament. The whole process had to be paused because of the general alarm at what was happening.

In my reading of the judgment, I also noted the manner in which the key elements were summarized succinctly by the tribunal members in their introduction, in which they stated that the reforms were “far-reaching and highly controversial,” and also stated, “NHS reorganisation was not part of the Conservative election manifesto prior to the 2010 General Election. The Coalition Agreement of May 2010 stated, ‘We will stop the top-down reorganisations of the NHS that have got in the way of patient care.’”

In further reporting, the BBC noted that the Information Commissioner had ruled that the public interest in publishing the risk register was “very high, if not exceptional,” and ordered it to be published within 30 days.

The government can now appeal to an “upper tribunal,” and officials have stated that they are “examining the judgment.” When it was first delivered a month ago, ministers at first resorted to scaremongering, claiming that publishing the register “could have a ‘chilling effect’ on how frank civil servants would be with them about risks in future,” as the BBC described it. When experts were dismissive of this claim, the government then resorted to stalling, stating that ministers would await the publication of the full judgment before deciding what to do next.

And in the meantime, of course, the wretched bill was passed by the MPs and peers who should be ashamed of themselves, and will hopefully pay at the next election, if this government can somehow limp on for the next three years without provoking a major uprising.

In more detailed explanation of the judgment, the BBC explained:

Ministers cited a “section 35″ defence under the FOI Act, which exempts information used in policy formulation and development from having to be released, and rejected the request in December 2010 — the month before the NHS bill was introduced in Parliament. But the section 35 defence is not absolute and must be weighed against the balance of public interest.

Because of the “exceptional” nature of the NHS overhaul, the timing of Mr Healey’s request and the nature of the risk register itself — which dealt with “implementation/operational type risks” not direct policy considerations — the tribunal ruled it should be published.

But it said a second risk register relating to the NHS overhaul — a strategic risk register requested under FOI laws by Evening Standard journalist Nicholas Cecil and dealing with “risks which need to be brought to the attention of ministers” — could be kept secret.

In dismissing the government’s claims about the danger of releasing the risk register, the Information Commissioner responded to the Department of Health’s claims (via civil servant Una O’Brien) that “risk registers were meant to allow civil servants to ‘think the unthinkable’ about what might go wrong — however unlikely — and to publish them could lead to a ‘very distorted’ view of possible risks,” by stating that, having seen the registers, it was “difficult to understand how they could be described in such a way.”

“It seems to us that the TRR [Transitional Risk Register] identifies the sorts of risks one would expect to see in such a register from a competent department,” the commissioner and the tribunal explained, adding that research indicated that there was “no evidence to back claims publishing could have a ‘chilling effect’ on future risk registers,” and pointing out that “a risk register had already been published in 2008 on plans for a third runway at Heathrow airport.”

The tribunals “accepted the principle of allowing officials and ministers room to develop policies without undue scrutiny, but declared that this did not mean that there was an “absolute exemption for risk registers.”

Timing was a major factor, the tribunal ruled, noting that the request for publication of the risk register was made in November 2010 (by the Labour MP John Healey) which was made “when consultation had ceased and policy seemed to be fixed.” The tribunal added, crucially, “We find in this case that there is a very strong public interest in transparency and accountability in relation to the risks involved in introducing the NHS reforms.”

Describing, as noted above, that the public interest in understanding the risks involved in the planned NHS reform “would have been very high, if not exceptional” and would have provided the public “with a far better understanding of the risks to a national institution which millions depended on,” the tribunal added that “publishing it could have either ‘gone a long way to alleviating’ concerns and reassuring the public,” or could have “‘demonstrated the justification for the concerns’ to better inform public debate,” as the BBC explained.

Responding to the ruling, John Healey said, “What was the Health Bill is now law but the risks of the government’s huge NHS reorganisation remain. The government used its big guns to defend its refusal to publish the risk register and this legal judgment demolishes their case for secrecy.”

He added, “However long the government fights to delay release, this court case will become a freedom of information landmark and in the long run ministers will have to disclose more risk details on major policy changes to the public and Parliament.”

That may well be true, but it is disgraceful and despicable that the bill for which this risk register was issued has already been passed, when, as Dr. Éoin Clarke explained, the tribunal “unanimously decided that the NHS Bill was contrary to the Tory manifesto, unexpected, rushed, far reaching, pre-judged and without proper consultation,” and implied that “the Tories cynically hid their plans to carve up the NHS prior to the 2010 election.”

Andy Worthington

Andy Worthington is an investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo and We Stand With Shaker. Also, photo-journalist (The State of London), and singer and songwriter (The Four Fathers). Worthington is the author of "The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison"

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