NHS bill: Risk register publication would be 'insidious'

Plans to overhaul the NHS in England have met stiff opposition

Publishing the document where officials "think the unthinkable" about what might go wrong with NHS changes would be "insidious", a tribunal has heard.

Una O'Brien, Department of Health permanent secretary, issued the warning at the start of an appeal against a Freedom of Information ruling that it should publish the "strategic and transitional risk registers".

Labour, which put in the request, says ministers should "respect" the ruling.

The case is expected to last two days.

On the first morning of the case Ms O'Brien said the Department of Health had a good attitude and record on transparency.

But she said it was important to have a "safe space" where civil servants could "express themselves in a very forthright way" in giving advice to ministers.

If the risk register was published too soon, she said, it would be "insidious" and "you would not know what is not being raised" or what was being toned down because of fears about how it might be "viewed externally".

She said: "Out of context I think my own judgement is they would lead to a very distorted and very speculative interpretation of risk."

The government says publishing risks is "seriously damaging the quality of advice given to ministers".

The FOI request relates to documents prepared for the controversial Health and Social Care Bill which is currently having a difficult passage through the House of Lords.

'Likely and unlikely'

The registers were drawn up to calculate the risks relating to the implementation of the bill - which aims to give GPs control of much of the NHS budget and would open up the health service to greater competition from the private and voluntary sector.

The government says the registers look at "likely and unlikely risks" - some of which, it says, are already in the published impact assessments.

But last November the information commissioner ruled the government had been wrong to refuse FOI requests that the documents be published because "the public interest in maintaining the exemption does not outweigh the public interest in disclosure".

The government appealed and the case is being considered by the Information Tribunal. If the government loses, it could choose to take the case to the High Court.

Former Cabinet Secretary Sir Gus O'Donnell and Labour's former shadow health secretary John Healey - who put in one of the FOI requests - are due to speak at the hearing.

The issue was the subject of a debate in the Commons last week initiated by Labour, although four Lib Dems voted with them to urge the government to publish the register.

But Prime Minister David Cameron accused the current shadow health secretary Andy Burnham of "rank opportunism" - because he had blocked the publication of a risk register when he was health secretary in the previous Labour government.

'Withdraw bill' call

Mr Burnham hit back that there had been "crucial differences" between the document whose publication he had blocked in September 2009 and the one Labour was now pressing the government to publish.

He also argued that he had not initiated what he described as the biggest ever top-down reorganisation of the NHS at a time of its biggest ever financial challenge - and the information commissioner had not ruled in 2009 that the paper should be published.

The NHS bill has been criticised by various bodies representing healthcare professionals and has been the subject of Commons clashes between Mr Cameron and Labour leader Ed Miliband at prime minister's questions for the past four weeks.

Lib Dem activists are preparing an emergency motion for their party's spring conference next week, saying the bill should be "withdrawn or defeated".

But Mr Cameron says it is "vital to reform our NHS" by increasing choice for patients, better integrating services and putting more decisions into the hands of GPs rather than "bureaucrats".