Minister vetoes disclosure of information about risks to NHS changes

Last month an Information Rights Tribunal ordered the Department for Health to disclose the 'Transitional Risk Register' to MP John Healey under freedom of information (FOI) laws. However, Secretary of State for Health Andrew Lansley said he was exercising his 'ministerial veto' to prevent the document being disclosed.

"This is not a step I have taken lightly," the Health Secretary said in a statement. "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. The Freedom of Information Act always contemplated such a ‘safe space’ and I believe effective government requires it," he said. "That is why Cabinet has today decided to veto the release of the Department’s transition risk register."

"Had we not taken this decision, it is highly likely that future sensitive risk registers would turn into anodyne documents, and be worded quite differently, with civil servants worrying about how they sound to the public rather than giving Ministers frank policy advice," he said.

Lansley said he had published a document containing the "key information relating to the areas of risks in the original Risk Register, how we have met those risks head on and how we will continue to do so" and that the public has "all the information necessary to understand what we considered the risks to be and how we have acted to mitigate them.”

Under FOI Act individuals have a general 'right to know', which entitles them to be provided with information held by Government departments and public bodies. However, those bodies can legitimately withhold information requested in some circumstances. The Act also allows a Government department to issue a 'Ministerial veto' when there is a dispute between a public body and the Information Commissioner over whether an exemption to disclosure has been correctly applied in the public interest.

The Department for Health had initially refused the request for disclosure of the 'Transition Risk Register' on the grounds that it was information held by Government in relation to the formulation or development of Government policy. Such information is exempt from disclosure under the FOI Act unless there is an overriding public interest in its disclosure.

After the Department's refusal, the case was appealed to the Information Commissioner who ruled that there was a public interest in the disclosure of the Register. The Department appealed to the Information Rights Tribunal, but it upheld the view that there was an overriding public interest in the Register being published.

However, Lansley has vetoed its disclosure – a decision which the Information Commissioner's Office (ICO) said it would scrutinise.

"We will need to study the Secretary of State’s statement of reasons for imposing the ministerial veto in this case," an ICO spokesperson said in a statement. "These must, under the criteria established by the Government, be 'exceptional'. We will present the Commissioner's formal report on the matter to Parliament next week."

The Department of Health said it did not believe that appealing against the findings of the Tribunal would have helped it keep the Register from being disclosed.

"The choice to use the Veto rather than appeal the decision to publish the Risk Register was made because the Secretary of State and the Cabinet views this as an exceptional case where there is a fundamental disagreement on where the public interest lies in relation to the disclosure of the Risk Register," the Department said in its statement. "The Upper Tier Tribunal would focus on points of law arising out of the First Tier Tribunal decision rather than the balance of the public interest on the evidence."