A major FOI controversy ensued in the United Kingdom after the cabinet vetoed the release of an assessment of risks of the government’s health system reforms.
The decision overruled an order from Information Commissioner Christopher Graham to publish the National Health Service risk register. Graham protested the decision, saying that “none of the criteria for exceptional cases” had been met. See an Independent article on his position.
“As such, the Government’s approach in this matter appears to have most to do with how the law might be changed to apply differently in future,” Graham commented.
The development occurred as the Justice Select Committee wrapped up a series of seven hearings on the freedom of information law.
The government subsequently engaged in a “partial climbdown,” as it was called in a report by the Guardian, by issuing an edited version of the document. It does not include detail about potential risks seen in a leaked copy of the full report.
Health Secretary Andrew Lansley said in statement that the government vetoed release to establish a point of principle: that civil servants should be able to use “direct language and frank assessments” when giving advice to ministers in a “safe space.”
Sean Clare of BBC News began his report this way:
Changes to the NHS have been described as “so big, they can be seen from space”. But, closer to home, the risks posed by the shake-up will not be seen by the public. The government has overruled an Information Tribunal order to publish the NHS “risk register”.
The shadow health secretary, Andy Burnham, called the veto decision “a major step backwards towards secrecy and closed government,” the Guardian reported.
Burnham said: “The NHS belongs to the people of this country, not ministers. If they can’t be open about the risks they are taking with the NHS then they are risks they should not be taking. This is a cowardly decision from a government on the run that is now too frightened to face up to the consequences of their own incompetence.”
“The veto has only ever been used in relation to ministerial decisions,” said Maurice Frankel, director of the Campaign for Freedom of Information. “This is the first extension into other types of information relating to policy formulation.” It was the fourth use of the government’s veto.
Three years ago, then Labour Justice Secretary Jack Straw vetoed an order to publish minutes of cabinet discussions in the run-up to the war with Iraq.
Ben Worthy, of University College London’s constitution unit told the BBC: “Politicians don’t like surprises and FOI springs surprises on them.” On his blog, Worthy wrote that the veto reflected “growing criticism” of freedom of information from establishment figures.
The November 2010 Transition Risk Register sets out internal assessments of the risks posed by the reforms in the Health and Social Care Act, which became law in March.
The Information Commissioner issued Decision Notices in November 2011 ordering disclosure. The First-Tier Tribunal, which hears appeals over FOI disclosures, ruled that while the Strategic Risk Register should remain secret, the Transition Risk Register ought to be published.
Committee Hearings Conclude
The Justice Select Committee on May 16 held the last of seven hearings on the freedom of information law.
Attorney General Dominic Grieve said there were “really compelling and good arguments” for keeping cabinet papers secret, according to media reports. He said each application is dealt with on a case-by-case basis, “denied that the refusal to publish an NHS risk register represented part of a new pattern of responses aimed at blunting the impact of transparency laws,” The Guardian reported.
One blog summary of the overall debate appears on the Hawktalk blog.
The SaveFOI group on May 15 recommended that the committee invite some additional witnesses with a more favorable opinion of FOI.
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