Tony Blair once described himself as an "irresponsible nincompoop" for bringing into force the Freedom of Information Act and has since spoken of his regret for bringing the Act into law. Similarly, on his departure as Head of the Civil Service in December last year, Sir Gus O’Donnell argued that the FoI laws should be amended so that Cabinet ministers could have "real discussions" on policy, without worrying that they would be released into the public domain.
The debate over whether or not to publish the NHS risk register has highlighted the debate into the merits of the Act. The Information Commissioner ruled in March this year that the risk register document which assesses risks relating to the recently passed Health and Social Care Act should be made public. The tribunal ruled that the public interest in publishing the final document was "very high, if not exceptional".
Despite this ruling, the Cabinet decided on Tuesday that it would not release the risk register to the public. Health Secretary Andrew Lansley has since made a statement to the House of Commons justifying the decision. Mr Lansley said ministers had taken the "exceptional" step of opting against releasing the register to the public because they felt it would lead to a future reduction in the quality of advice civil servants gave to governments, and ultimately, that it would undermine the policy-making process.
In his statement to the House he said:
"This is not a step I have taken lightly. I am a firm believer in greater transparency and this government and this department have done far more than our predecessors in publishing information about the performance and results of our policies. But there also needs to be safe space where officials are able to give ministers full and frank advice in developing policies and programmes."
Indeed, Lansley is well within his legal grounds to oppose the release of the register. Moreover, those who are looking to reform the FoI Act, which is currently under review by Parliament, would do well to look at the point made by Christopher Graham, the Information Commissioner, that in the most extreme cases ministers have the last say because the Cabinet has the power of veto. The decision not to publish the register is consistent with the Act. Bringing to an end his 19-month campaign to publish the register, even former Shadow Health Secretary John Healey admitted that the chances of a Judicial Review of the Cabinet’s decision were “narrow to negligible”.
That said, the decision not to publish the register still looks immensely awkward for both Lansley and the Coalition Government, following a series of communications failures after the Budget.
Given the controversy that has surrounded the NHS reforms, the decision not to publish the register could be perceived by opponents of the reforms as evidence that there is ‘something to hide’. In this vein, Healey has suggested that "there must be some very big risks in the Government’s NHS reorganisation for ministers to override the law with their political veto."
Mr Lansley clearly disagrees, and yet regardless of the policy arguments, his decision to veto the publication does not sit well with the Coalition’s flagship commitment to transparency, openness and accountability. Transparency and the availability of open data has been one of the most consistent commitments that the Coalition has made since assuming office. As Mike Birtwistle wrote earlier this year, while good governance may demand non-disclosure, the politics of reform require transparency. It would seem that Mr Lansley has at least in part recognised this struggle, deciding yesterday afternoon to publish a review of the November 2010 risk register, with the purpose of describing and explaining “the areas of risk contained in the Transition Risk Register of November 2010”. It is unlikely that this will prove to quieten critics who perceive secrecy at play.