Tories Disobey Court Order, Refuse to Release Damning NHS Risk Register

9.5.12

Is there no end to the arrogance of this wretched government? In February, while pushing their vile bill to destroy the welfare state, the Tory-led coalition resorted to dismissing important amendments demanded by the House of Lords by invoking “financial privilege,” an arcane set-up whereby, as Conservative Home explained in a highly critical post, The House of Commons has “‘sole rights’ in respect of financial legislation that applies indivisibly to public expenditure and to the raising of revenue to meet that expenditure.”

Now, in a disgraceful manoeuvre designed to prevent the public from knowing the full extent of the damage to the NHS as a result of the Health and Social Care bill that was passed in March, the government has decided to use its veto — a tactic “used only three times before in the previous decade,” as the Guardian explained — to block an important ruling by the Information Commissioner, who, last November, ordered the government to release its risk register regarding the dangers of its planned NHS reforms. The government appealed the decision, but was ordered to release the risk register for a second time by the first-tier tribunal for Information Rights just a week and a half before the bill was passed.

Furthermore, as I explained a month ago, when the tribunal’s judgment (PDF) was finally made public, it was so damning that it might have derailed the bill had it been made available earlier. As Dr. Éoin Clarke explained on his blog The Green Benches, “I have never read a more damning judgment by a UK court on a government’s flouting of democracy … [T]he court unanimously decided that the NHS Bill was contrary to the Tory manifesto, unexpected, rushed, far reaching, pre-judged and without proper consultation. In effect, the judgment implies that the Tories cynically hid their plans to carve up the NHS prior to the 2010 election. You and I knew that of course, but to read it in black & white from a court judgment is truly unprecedented. This document … is a devastating indictment of the Tory handling of our democratic process. The judges unanimously ruled the Tory government should release the full contents of the NHS Risk Register.”

In particular, Dr. Clarke singled out paragraph 85, which stated:

From the evidence it is clear that the NHS reforms were introduced in an exceptional way. There was no indication prior to the White Paper that such wide-ranging reforms were being considered. The White Paper was published without prior consultation. It was published within a very short period after the Coalition Government came into power. It was unexpected. Consultation took place afterwards over what appears to us a very short period considering the extent of the proposed reforms. The consultation hardly changed policy but dealt largely with implementation. Even more significantly the Government decided to press ahead with some of the policies even before laying a Bill before Parliament. The whole process had to be paused because of the general alarm at what was happening.

Yesterday, however, as the Guardian explained, it became clear that “[t]he official assessment of the risks involved in the government’s NHS shakeup will never be published after the cabinet exercised its rare right of veto to keep it secret.”

For John Healey, the Labour MP and former shadow health secretary who had campaigned for over a year and a half to get the risk assessment released, it was  a particular disappointment. As the Guardian noted, he and “an array of medical leaders argued during the stormy passage of the health and social care bill that MPs and peers needed to see the details in the transition risk register before they could consider the coalition’s NHS plans properly.”

Healey condemned the veto as “a desperate act which will backfire badly,” adding, “It is an admission of defeat on the legal arguments for public release,” and also explaining, “It is totally over the top to place NHS changes on the same footing as preparations for the Iraq war” — a reference, as he explained on LabourList (in an article entitled, “Risk register veto – A desperate act and an admission of defeat) to “a veto that Labour only ever used once, for the legal advice in preparations for the war in Iraq.” He added, “There must be some very big risks in the government’s NHS reorganisation for ministers to override the law with their political veto,” and also said, “The government has lost twice in law, yet still won’t accept that patients and NHS staff have the right to know the risks ministers are running with the biggest ever NHS reorganisation.”

As untrustworthy as ever, Andrew Lansley, the health secretary behind the planned butchery of the NHS (with the full support of David Cameron), said “ministers had taken the ‘exceptional’ step of opting against disclosure because releasing it would undermine the process of policy-making by reducing the quality of advice civil servants gave governments in future,” a false argument exposed as such in the information tribunal’s damning judgment mentioned above. Throughout this process, those involved with making freedom of information decisions have realised, as the tribunal ruled in March, that this was not an assault on risk registers as a whole, but was specifically related to disclosure of the NHS risk register because of the “general alarm” noted above.

In further comments that were far from the truth, Lansley said, “This is not a step I have taken lightly. 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. 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.”

Christopher Graham, a spokesperson for the Information Commissioner, was no happier than John Healey. Specifying that he “would need to be certain that the cabinet had followed rules that say the veto should be used only in cases meeting ‘exceptional’ criteria for non-disclosure,” as the Guardian put it, he said, “We will need to study the secretary of state’s statement of reasons for imposing the ministerial veto in this case. 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.”

Representing Britain’s doctors, the British Medical Association (BMA) “expressed disappointment at the veto and said it remained vital for the risks inherent in the NHS reorganisation to be known,” as the Guardian described it. “There is still a huge amount of complex and very controversial secondary legislation to go through parliament in relation to the Health and Social Care Act, some of which will need to be voted through by MPs,” the BMA stated, adding, “We are therefore disappointed that the government has decided not to publish the risk register in full. As we said well before the bill became an act, it’s vital that everyone involved knows what the potential risks might be so decisions can be made based on a full understanding of what the impact might be.”

The shadow health secretary, Andy Burnham, also spoke out. “This disgraceful decision is a cover-up of epic proportions,” he said, accusing the Cabinet of showing “flagrant disregard for the law of the land,” and adding, “David Cameron is desperate to keep the NHS risk register secret because he knows that, if people could see the scale of the risks he is taking with the NHS, they would not forgive him.”

Dr. Peter Carter, the chief executive of the Royal College of Nursing, also called for the risk register to be published. “We believe it is wrong that yet again the government is refusing to publish, in full, the risks associated with these reforms,” he said. “Today’s decision is astonishing and means that the public are only being presented with a partial picture of the NHS reforms.”

As the Guardian noted, “The only potential challenge to the veto would be if Healey or Graham sought a judicial review of the veto.” However, John Healey said “he thought the grounds for seeking such a review were ‘narrow to negligible,'” and the Department of Health gloated that the veto marked “pretty much the endgame, the end of the line” for the hope that the risk register would be released.

Perhaps the Information Commissioner will find a reason to disagree with the government’s assessment that the veto meets “‘exceptional’ criteria for non-disclosure,” as all that appears to be exceptional is the opposite — the public interest in knowing the extent to which ministers ignored alarm bells in their search for profits for private healthcare companies and the success of their long and bitter dream of taking a hatchet to the NHS.

I certainly hope so, but in the meantime, the struggle to save the NHS from the butchers of the Tory-led coalition government will soon be up for renewed discussion in the House of Commons — as the FT explained last week — when MPs will be “asked to vote on a series of proposals to set up the new bodies at the heart of the Health and Social Care Act,” meaning they will be “faced with the prospect of having to defend the unpopular measures all over again.”

As the FT noted, Labour “has vowed to use the opportunity to highlight their opposition to the reforms, which would increase private sector involvement in the health service,” and Andy Burnham stated, “Round one may be over, but we give the government notice that we will continue to challenge this flawed reorganisation every step of the way.”

The opportunity to embarrass the government, and to inflict further damage on their credibility and popularity, following last week’s election debacle, will take place later this month, and next month, when MPs will vote on “the formation of a series of bodies, including clinical commissioning groups, which have triggered rows with the GPs who are supposed to lead them and with health workers’ unions.”

In October, there will be a vote on “some of the most controversial pieces of the legislation, including setting the licensing conditions for Monitor, the healthcare regulator.” As the FT noted, although Monitor is already up and running, the Tories’ proposal that it “should promote competition and set prices within the service, as well as the quality of healthcare,” was contentious during the passage of the bill, and led to Shirley Williams securing a promise that Monitor would judge health providers “on the overall quality of patient care rather than simply cost.”

Labour, however, will hopefully be able to take advantage of concerns about Monitor’s role, and about potential problems in other aspects of the Act’s reshaping of NHS bureaucracy to further damage the government. Andy Burnham stated, “In the coming weeks, Labour will challenge these documents line by line and seek to close the act’s major loopholes such as the potential for conflicts of interest in the awarding of contracts and the lack of public accountability in commissioning groups,” the GP-led groups that are supposed to be taking delivery of the bulk of the NHS’s budget, and who, as sharp-eyed critics have noted, are likely to either be overwhelmed by the task, or to have their own vested interests, in private firms, which they will duly promote.

So bring on the Parliamentary debates! Let the battle continue, and let the government know that many of us will not rest until our NHS is safe from their contagion, and the stench of their greedy corporate friends.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in April 2012, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and please also consider joining the new “Close Guantánamo campaign,” and, if you appreciate my work, feel free to make a donation.

17 Responses

  1. Andy Worthington says...

    On Facebook, Mezentian Gate wrote:

    In America we too have an arrogant government, especially the President who thinks he is accountable to no one,… and responsible for nothing

  2. Andy Worthington says...

    Thanks, Mezentian. Obscene amounts of money influencing politicians, and vested interests in the military and intelligence fields tend to do that, don’t they?

  3. Andy Worthington says...

    George Kenneth Berger wrote:

    Excellent, Andy. Your powerfully expressed indignation comes through loud and clear. I’m sharing this.

  4. Andy Worthington says...

    Thank you, George. I’m very glad to hear that.

  5. Andy Worthington says...

    George Kenneth Berger wrote:

    Dugg and shared, Andy, with some comments by me. One UK friend shared mine at once.

  6. Andy Worthington says...

    Thanks again, George. I also saw Dr. Éoin Clarke’s latest disturbing article via you, “Workfare comes to the NHS as unpaid workers take the place of NHS staff”:
    http://eoin-clarke.blogspot.co.uk/2012/05/workfare-comes-to-nhs-as-unpaid-workers.html

  7. Andy Worthington says...

    George Kenneth Berger wrote:

    My pleasure, Andy. I was going to send that to you, but figured you wouls see that on my page. I got it from a British activist in London.

  8. Andy Worthington says...

    Chris Brace wrote:

    now that is really outrageous

  9. Andy Worthington says...

    George Kenneth Berger wrote:

    Here’s another one. This goes far further than personal privacy. http://www.guardian.co.uk/society/2012/apr/12/atos-doctors-sign-official-secrets-act

  10. Andy Worthington says...

    Thanks again, George – and yes, Chris, that’s an appropriate response, isn’t it?
    This from the article:

    Jobcentre Plus & Sandwell and West Birmingham NHS Hospitals Trust have teamed up to place unpaid unemployed workers in their hospitals. After a days assessment and induction at Sandwell College, the untrained and inexperienced personnel are placed in the hospital for period of up to 8 weeks unpaid. During this time they provide refreshments to patients and transport medicines. The participants for the most part enjoyed the experience and in fact 33% of those placed actually secured jobs as a result. This however is besides the point. Freezing the recruitment of staff & replacing them with untrained staff is a deliberate downgrading & de-skilling of the workforce.

    And this comment in response from Jennie Kermode:

    There are all sorts of safety issues here. Medical matters aside, were all these people CRB-checked? Did they have adequate diversity training, especially in relation to disability? Did they have the health and safety training necessary to enable them to do things like lifting without injuring themselves? Were they given a proper understanding of patient confidentiality issues?

  11. Andy Worthington says...

    Chris Brace wrote:

    well it was toned down from what I originally typed before pressing send 🙂

  12. Andy Worthington says...

    I can’t imagine what you mean, Chris! Actually, I’ve developed my own lexicon to avoid swearing – hence my references to the scumbags and butchers of government and their callous, cruel policies. I was interested to note, when the students and schoolchildren first took to the streets in autumn 2010, that the phrase “Tory scum” reemerged instantly, as did knowledge of the Poll Tax Riot, as though it was some sort of racial memory.

  13. Andy Worthington says...

    George Kenneth Berger wrote:

    Now *that* brightened up an already bright Swedish morning!

  14. Andy Worthington says...

    Job done then, George. It was bright here too, first thing, but it’s already started clouding over. Still, as I’m reliably informed by the Guardian, “Up to 400,000 public sector employees, including police officers, lecturers and border control staff, are staging a day of protest against the government austerity programme, with thousands of people expected to attend events in central London,” so I may have to pay a visit to central London to see what’s going on, and show my support.

    As ever, though, I think the unions are failing to view the bigger picture, and should be calling days of actions like the huge March 26 rally last year so that it’s clear that everyone – not just unionised workers, but also non-unionised workers, the self-employed, the unemployed, students, schoolchildren, the disabled and the retired – are affected by this – what was it again? – oh yes, this bunch of callous, incompetent butchers and their cruel, myopic obsession with ideologically-imposed austerity.

  15. Paul says...

    Andy,

    It might be worth pointing out that an earlier draft of the risk register was leaked in March. Some relevant links:

    http://www.huffingtonpost.co.uk/2012/03/27/nhs-risk-register-leaked-lansley-burnham-nhs-reform_n_1381786.html

    http://www.morningstaronline.co.uk/news/content/view/full/117138

  16. Andy Worthington says...

  17. Zero | Gabriel Vents says...

    […] [what] the establishment has done to our NHS?” Yes, surely Nige, just like the risk register they never published even though the courts told them to.     The worst Tory ‘reforms’ are […]

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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