'No evidence' releasing NHS risks would damage ministers' advice

The government's plans for the NHS in England have proved controversial

There is "no real evidence" that releasing private documents would stop civil servants giving candid advice to ministers, a tribunal has heard.

The Department of Health has appealed against a Freedom of Information ruling that it must publish risk assessments of the controversial NHS overhaul.

It argues that to do so could have a "chilling effect" on future advice.

Labour's John Healey said he had noticed no such effect when previous government documents were released.

The information tribunal - a panel of three headed by Judge John Angel - is considering the government's appeal following a two-day hearing in central London.

'Very strong'

Mr Healey has been pressing for an early decision because the Health and Social Care Bill which introduces a major shake-up of the NHS in England is nearing the end of its passage through Parliament.

He was told on Tuesday that it was a "difficult case" and the tribunal would not be able to make a decision that day. Mr Healey told the BBC he would press the judge to release the decision as soon as it was made "in light of the huge public and parliamentary interest in this case".

Timothy Pitt-Payne QC for the information commissioner, argued on Tuesday that the two "risk registers" requested under FOI - the transitional risk register requested by Mr Healey, and a broader "strategic risk register" requested by Evening Standard journalist Nicholas Cecil - should be released.

The government says risk registers are not balanced documents as they tend to focus on what could go wrong - with little emphasis on "positive outcomes".

It is using the "section 35" defence under the FOI Act - which exempts documents relating to the formulation or development of government policy from being published.

But the defence is not absolute - and must be weighed up with the public interest in disclosure.

Mr Pitt-Payne said the public interest in disclosure in this case was "very strong".

He said it was "not just a run-of-the mill section 35" case because of the scale of changes being made, the controversy, inherent risks in the nature of the reforms and the public debate about them.

He also questioned whether risk registers were the sort of documents at the heart of the section 35 defence - describing them as managerial tools for officials as opposed to "discursive" documents such as memos and emails to ministers.

'Damage to candour'

They went through an element of selection, he said, and were not "a natural home for blue skies proposals or a debate about the strengths or weaknesses of existing policy".

There was "no real evidence" of damage to the "candour" of Gateway reviews - independent assessments - of the previous government's controversial ID cards scheme, following a previous ruling, Mr Pitt-Payne told the tribunal, nor from a risk register released after another FOI battle in 2009, relating to building a third runway at Heathrow airport.

Labour argued that by time they put in the FOI request - in Nov 2010 - the process of formulating the NHS overhaul was well underway, so there was less need for the "safe space" the government argued was needed for civil servants to speak freely, in the early stages of policy development.

It also argued that risk registers were more for officials than ministers. Labour MP Mr Healey told the tribunal: "In 10 years as a minister I don't recall seeing a risk register."

He said, as early as July 2010 when the White Paper on NHS changes was published: "It was clear to me that the principle policy decisions and the decision to legislate had been taken."

Trust

Labour argues that the plans were being introduced at speed, making them more risky.

Mr Healey said the government "wasn't really listening" to concerns about the scale of change, at a time of great financial pressure on the NHS. And he argued that, at the time he put in his FOI request, there was not sufficient information "to give people the confidence and the evidence that the risk had been properly assessed and could be managed".

The government says a published risk register would be used as a "political football"

On Monday, the head civil servant at the DoH, Una O'Brien, said she had turned down the requests because of concerns that the candid relationship between civil servants and ministers would be damaged if they were released.

Mr Healey - then Financial Secretary to the Treasury - had also relied on a section 35 defence when turning down a request to publish the ID cards Gateway review in 2005, a case the government eventually lost.

Asked if he had noticed a "chilling effect" on subsequent reviews, Mr Healey replied: "No, I did not."

He added: "They continued to play, in my judgement... a very important role in concentrating at critical stages the minds of civil servants" who were responsible for delivering policies.

For the government, James Eadie QC denied it was about trying to " stifle" public debate on the NHS changes and said information in the risk registers would not "enhance" public debate but would be likely to "lead to damage to good governance". The jury was still out on whether previous rulings had had a "detrimental impact", he said.

He said officials were entitled to a "safe space" - protected from "lurid headlines", adding: "It is certain, if the risk registers are released, they will become used as a political football."