The claim

“This government’s got to learn to respect the law of this country and I’m afraid right now it’s in flagrant breach of it.”
Andy Burnham, 20 March 2012

The background

The government’s highly controversial health and social care bill could finally receive Royal Assent and become law later this week after a tempestuous journey through parliament.

That’s if a last-ditch Labour attempt to derail the NHS reform package fails on Tuesday afternoon.

The opposition secured an emergency 90-minute debate that could theoretically delay the passage of the legislation until the government complies with a ruling by the Information Commissioner to publish the “transitional risk register”.

What is this supposedly explosive document, why are Labour pinning all their hopes on it, and will it ever see the light of day?

The analysis

In November 2010 Labour MP John Healey made a Freedom of Information request to the Department of Health (DoH). The former shadow health secretary asked to see any “assessments of the risk associated with the implementation of the GP Commissioning Consortia or the White Paper or measures to be contained in the forthcoming Health Bill.”

As a former minister, Mr Healey knew that civil servants would have written a “transitional risk register” outlying the potential costs and benefits of the major changes to the NHS being planned by ministers.

It seems clear that both sides expect the register to contain warnings about the potential fallout of the reforms that could embarrass the government.

But that may tell us more about the outspoken nature of this kind of document than it does about the health and social care bill, according to civil servants.

Lord Wilson, who was Cabinet Secretary under Tony Blair, writes: “Risk registers, if they are done properly, are meant to look at the worst things that can happen. They are by their nature gloomy. By the same token they are likely, if published, to provide ammunition against the government.”

Health Minister Simon Burns said the publication of frank, private advice given to politicians by officials would compromise civil servants and damage the business of government.

He said: “Having a risk register is one of the ways in which government…formulates and considers policy from all angles. If one had that in the public domain immediately then you can just see people like Andy Burnham jumping on it, taking a worst-case scenario and then distorting it and you could not have government functioning.”

Mr Healey might disagree, but let’s remember that Labour also refused to publish NHS risk registers several times when they were in power. In 2007 one Andy Burnham, then a junior health minister, said publication “would inhibit the free and frank exchange of views about significant risks and their management, and inhibit the provision of advice to Ministers”.

Mr Burnham insists that he was talking about a different kind of risk register in 2007, but the arguments being used by the government now are very similar to the ones he used then – that making internal risk assessments public could stop civil servants from speaking the blunt truth in future.

Whatever the rights and wrongs of publishing risk registers, DoH turned Mr Healey down, saying it wasn’t in the public interest to let him see the transitional document.

The ex-minister took his case to the Information Commissioner and won. In November last year, the watchdog ruled that the government should make the documents public.

The government then appealed to the Information Tribunal but the panel of judges found in favour of Mr Healey again, ruling that any risk register specifically dealing with the potential impact of the reforms laid out in the bill should be published. 

So two decisions have gone against the government, but they still haven’t come up with the all-important document. Does that mean, as Andy Burnham claimed, that they are technically flouting the law?

No, or at least not yet. Like any public body whose actions come under Freedom of Information law, the DoH has a legal right to launch a second appeal against the tribunal’s decision.

It has 28 days to decide what to do, and the clock doesn’t start ticking until the Information Tribunal details its reasons for rejecting the first appeal.

The judges haven’t done that yet. A spokesman for the tribunal told FactCheck they would try to publish their reasons “as soon as possible”.

If the government does appeal, we are looking at months or years of further delay. The case would go to a higher tribunal in the first instance, but the government could keep on appealing, taking the case to the Court of Appeal or into the European court system, if it keeps getting defeated.

Or ministers could cut the whole thing short by using their power of veto. Seen as a weapon of last resort, the ministerial veto on publishing information has only been used three times, but it would be a complete block on publication, with no effective appeal.

The verdict

The government may well be defying the will of the Information Tribunal, but it’s wrong to say that it’s in breach of the law.

Ministers have a legal right to appeal against a tribunal’s decision, and they have a right to see the reasons for the tribunal’s decision before deciding whether to appeal.

The way Freedom of Information law is set up also means it ultimately beyond the power of Mr Burnham, the Information Commissioner or anyone else to force the government to publish something it doesn’t want to.

The government could delay publication for years while it dragged the case through various courts, or simply use the nuclear option of the veto to put an end to the process altogether.

While governments have proved themselves to be reluctant to use the veto – because it makes them look undemocratic and secretive – it could be that ministers decide that the political cost of making the risk register public outweighs the negative publicity.

So as things stand, if the government wants to keep the risk register a secret until long after the furore over NHS reform dies down, it has the legal right to do so.

By Patrick Worrall