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NHS risk register release blocked by the UK government: Justified or over the top?

25 May 2012 Milena Izmirlieva

In a highly controversial move, the United Kingdom's government vetoed the release of a risk register on healthcare reform earlier this month. The risk register, created by civil servants in November 2010, assesses the risk of reforms contained in the Health and Social Care Act which finally became law in March 2012 following heated public debates and a tumultuous Parliamentary review. The release of the risk register was requested under the Freedom of Information Act – a request that the Information Tribunal agreed to grant.

Government Uses Rare Veto

The release of the risk register was, however, vetoed by the government on 8 May. To fully appreciate what that veto means it is worth mentioning that the veto has only been used three times in the past. The Labour government used the veto to prevent the release the minutes of a Cabinet meeting ahead of the 2003 Iraq and of two Cabinet subcommittee meetings where Scottish and Welsh devolution were discussed. Issues of national security could have arguably justified the veto in those cases, but now healthcare reform has been catapulted into the same arena. Vetoing the release of information approved under the Freedom of Information Act can only be justified in exceptional circumstances.

Are Health Reform Risks Exceptional?

The government veto is, under existing regulations, reserved for specific exceptional cases which broadly fall into three groups, according to a recent report by the BBC:

  • Disclosure could damage the government
  • Disclosure could damage the constitutional doctrine of collective responsibility
  • The public interest in disclosing the information is outweighed by the public interest in keeping the information secret.

It is interesting to speculate on which of these three criteria the Health Reform risk register met in order to qualify for the veto. Or was it a case of "all of the above"? The justification offered by Health Secretary Andrew Lansley is that the veto is essential in order to provide "a safe space where officials are able to give ministers full and frank advice in developing policies and programmes." Whatever the reasoning, there is no question that use of veto was, and remains, highly controversial.

Information Commissioners Signals Policy Change in Access to Information

The Information Commission announced plans to examine the rationale for the veto as soon as the Cabinet's decision was announced. At the end of a one-week review, the Information Commissioner Christopher Graham announced that the veto was unjustified and that it departs from policy in terms of how "exceptional case" is defined. In his view, the risk register did not qualify as a "truly exceptional" case that would warrant use of the government veto.

Veto Impact on Healthcare Reform

The very timing of the decision to veto disclosure of the risk register – on the day before the Queen's Speech – has also raised questions. Widely regarded in the media as an attempt to bury bad news on the eve of the important policies announcement, the impact of the veto may linger on. For one, it marks a significant policy departure: in theory any ongoing policy debates could in future be kept out of the public domain if the government chooses to consider it "exceptional." Secondly, public suspicion and tacit opposition from medical professionals to the healthcare reform are more likely now that health reform has been put on a par with a highly questionable policy move like the UK's involvement in Iraq. In hindsight, releasing the full risk assessment document – a draft form of which was already leaked to the media in March – may have been a lot less damaging to health reform implementation that the use of the veto.



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