Should the government release the risk register on the NHS Bill?
I’m not going to use this post to kick Lansley over the NHS Bill. I’m going for something more challenging in this post – summarising some of the key issues of whether the risk register should be released or not.
During my time as a civil servant I supported a civil service bill team taking a piece of legislation through all of its stages in Parliament. I was also a freedom of information officer for a now closed regional office. It is in the context of that experience that I’m drafting this post.
I can imagine that there are a number of civil servants in the Department of Health who are screaming blue murder at the prospect of a legislative departmental risk register being released. Hence why ministers have appealed to the Information Tribunal on the back of the Information Commissioner’s ruling of 2nd November 2011. (Search for case ref: FS50392064 at http://www.ico.gov.uk/tools_and_resources/decision_notices.aspx if the previous link does not open).
I’m not going to go over the Commissioner’s arguments – they speak for themselves. In the debate in Parliament this afternoon on the Labour motion calling for the Government to release the risk register, what’s interesting in the debate is how the focus from Conservative MPs has been on the principle of protecting advice to ministers during the process of policy development. Labour MPs on the other hand have widened the debate beyond the risk register – with few people really going after the exemptions around sections 35 and 36 of the Freedom of Information Act 2000. You can find summaries of these exemptions here, from the Ministry of Justice. Hence why some Conservative MPs have accused Labour MPs of using the topic of this debate as a ‘trojan horse’ to give the Coalition a kicking over the NHS – “a gift horse that keeps giving” according to one unnamed Conservative MP as one TV news journalist tweeted earlier today.
Putting myself back into the mindset of a civil servant with an FoI background, in the grand scheme of things I always viewed the release of information as being generally positive. However, something as sensitive as a risk register for a bill proceeding through Parliament would have had me racing for a Section 35 or 36 exemption.
How do you identify risks?
One exercise I like using – and have used in a couple of seminars I’ve facilitated during my civil service days, is ‘reverse thinking’. In a nutshell, you take whatever it is you want to achieve (in this case for the Coalition, the passing of a bill) and then ask what steps you would take…to ensure the complete and utter failure of achieving said objective. i.e. what steps would anyone against the bill need to take to ensure that the Bill falls, that ministers fall and possibly even the Coalition falls? And then you go to town and have a bit of fun coming up with all sorts of scenarios.
You then distill all of those ideas and thus you have a whole host of risks. Then you begin the task of trying to mitigate for those risks.
What are the risks of releasing all of that information?
You could say there’s a big political aspect to this. In one sense it’s the equivalent of telling your enemy not just of your battle plans, but of your plans to deal with your enemy’s threats too. Knowing all of that, your opponents can plan accordingly.
And this for me is one of the reasons why ministers and their advisers are worried. Chances are that risk register contains possible actions that individual groups & organisations could take that could scupper the Bill and the implementation of the Coalition’s plans. Can you imagine ministers willingly releasing such information to their political opponents? It could bring down the legislation, the policies and the ministers, as well as weakening the Coalition. (I discuss possible scenarios here).
Sequencing of policy-making
One of the things that John Healey amongst others commented on in the debate was about the failure of the policy-making process. One of the things that raised my eyebrows is that the Bill has been built on such shaky foundations. Essentially the policy was not secured both politically and with the professionals who have to deliver the outcomes, prior to the legislation being introduced. And it’s showing. Big Time.
But what of the risk register? Will it be released?
That will be a decision for the Information Tribunal. In this case, the Information Commissioner has weighed up the balance of maintaining the convention of confidentiality of advice to ministers during policy-making, versus the sheer scale of the NHS reforms and the public interest in the transparency of it.
It’s worth noting (unless things have changed) that the decision of the Information Commissioner should not set a precedent. (Legal people, please pull me up if I’m wrong on this). Each FoI case has to be treated on its merits, which I believe the Information Commissioner has done here. The Tribunal will have to go through the same arguments over Section 35 exemption on advice to ministers, and decide whether in this case the public interest is best served in releasing the risk register & upholding the Commissioner’s ruling, or best served in maintaining the confidentiality principles and overturning the Commissioner’s ruling.
What the Tribunal won’t be ruling on is the merits of the policy itself. It will be on whether the public interest is best served by having a certain piece of information in the public domain or withheld from public view.
Can ministers take some of the sting out of this?
Well…they can. But that would take a huge amount of leadership that at the moment I think the political establishment – ministers and former ministers from this and the previous administration are lacking. Ministers could publish a summary document highlighting some of the key risks that they acknowledge and indicate how they are dealing with them. I can’t see this happening because ministers, the policies and the legislation is on such unstable ground, the fear may well be that releasing that information might compromise ministers and/or the policies, leading to the collapse of the Bill.
Under a less controversial piece of legislation built on stronger foundations and with greater support from those charged with delivering the reforms within, such a course of action may have worked. As things stand, party-political opponents to the Bill have accused ministers of not allowing MPs and Peers access to all of the information they need to properly scrutinise the Bill. Such has been the weakness of ministers in this case is that such charges are beginning to stick in the mind of people following the NHS reforms. Ministers on stronger ground I think would have been more successful in fighting off such accusations. But such is the scale of the problems around these reforms means that things that should have been brushed off relatively easily from a public administration perspective are causing significant problems for ministers and policy makers.
Despite all of the above, the Information Tribunal will be focussing on that public interest issue around Section 35: Is the public interest best served in maintaining the convention of confidentiality around advice to ministers, or is it, in this case best served by going against this convention given the scale of the reforms, that the register should be released?