Public interest 'high' in publishing NHS risk register
The public interest in publishing a risk assessment of the NHS overhaul in England is "very high, if not exceptional", a tribunal has ruled.
Last month the government lost a Freedom of Information battle to keep its transitional risk register secret.
In a full ruling published on Thursday, the tribunal says why it believes the TRR should be published within 30 days.
The government, which can still appeal to an "upper tribunal", says it is examining the judgement.
Ministers had argued that to publish the register could have a "chilling effect" on how frank civil servants would be with them about risks in future.
The decision was made days after the tribunal hearing last month, but the government has been waiting for the reasons behind it to be published in full before deciding on its next steps.
In the meantime the controversial Health and Social Care Bill has completed its passage through Parliament and become law.
Labour MP John Healey put in an FOI request for the transitional risk register to be published in November 2010, when he was shadow health secretary.
At the time, the government had published a white paper outlining plans to overhaul the NHS.
Ministers cited a "section 35" defence under the FOI Act, which exempts information used in policy formulation and development from having to be released, and rejected the request in December 2010 - the month before the NHS bill was introduced in Parliament
But the section 35 defence is not absolute and must be weighed against the balance of public interest.
Because of the "exceptional" nature of the NHS overhaul, the timing of Mr Healey's request and the nature of the risk register itself - which dealt with "implementation/operational type risks" not direct policy considerations - the tribunal ruled it should be published.
'Difficult to understand'
But it said a second risk register relating to the NHS overhaul - a strategic risk register requested under FOI laws by Evening Standard journalist Nicholas Cecil and dealing with "risks which need to be brought to the attention of ministers" - could be kept secret.
The top civil servant at the DoH, Una O'Brien, told the tribunal hearing last month that risk registers were meant to allow civil servants to "think the unthinkable" about what might go wrong - however unlikely - and to publish them could lead to a "very distorted" view of possible risks.
But the tribunal said, having seen the registers, it found it "difficult to understand how they could be described in such a way".
"It seems to us that the TRR identifies the sorts of risks one would expect to see in such a register from a competent department," it said.
The government has argued that to publish could mean civil servants being afraid of being too candid in their advice in future.
But the tribunal said it was "entitled to expect courage and independence from such officials" and that was not a good enough reason to withhold the information.
It said research had suggested there was no evidence to back claims publishing could have a "chilling effect" on future risk registers and pointed out that a risk register had already been published in 2008 on plans for a third runway at Heathrow airport.
While it accepted the "very strong public interest" in allowing officials and ministers private space to develop policies, it said that did not mean there should be an "absolute exemption for risk registers".
Much depended on the timing of the requests - in the case of Mr Healey's request, it was made at a "time when consultation had ceased and policy seemed to be fixed", it said, thereby reducing the need for "safe space" for advice.
"We find in this case that there is a very strong public interest in transparency and accountability in relation to the risks involved in introducing the NHS reforms," the tribunal said.
It argued that the public interest in understanding the risks involved in this case "would have been very high, if not exceptional" and would have provided the public "with a far better understanding of the risks to a national institution which millions depended on".
Publishing it could have either "gone a long way to alleviating" concerns and reassuring the public or "demonstrated the justification for the concerns" to better inform public debate.
The information commissioner had already ruled that it should be published, but the government had appealed to the information tribunal.
A spokesman for the Department of Health said: "We are now examining the judgment given by the information tribunal. We are working closely with colleagues across government and we will set out our next steps as soon as we are able to."
Mr Healey said: "What was the Health Bill is now law but the risks of the government's huge NHS reorganisation remain.
"The government used its big guns to defend its refusal to publish the risk register and this legal judgement demolishes their case for secrecy."