My Lords, the Government are appealing the Information Commissioner’s decision that the transition and strategic risk registers should be released, for the reasons explained in my recent statements to the House. The tribunal has initially fixed the oral hearing for 2 and 3 April, but my department is urgently discussing with the tribunal how the case may be expedited further. Regrettably, however, it is not possible for this to take place before Report commences.
My Lords, the Minister’s reply will be disappointing to many Members of this House, who believe with the Information Commissioner that,
“there is a very strong public interest in disclosure of the information, given the significant change to the structure of the health service the government's policies on the modernisation will bring”.
Moreover, the noble Earl himself is, I know, on record as saying that he is anxious to get the matter decided as speedily as possible. Are the Government considering a delay in the timing of Report, so that the House can have before it all the information that it needs to ensure that this important Bill is subject to detailed scrutiny, which is such a significant function of your Lordships' House?
My Lords, I understand the noble Baroness’s disappointment. As I have said, my department has made strenuous representations to ensure that this process is concluded as speedily as may be possible, consistent with the need for both parties to assemble the necessary evidence and present their cases properly. In answer to her second question, of course we have considered the timetable for Report in the context of this process, but we have concluded that if the Bill is to go through its full passage by the anticipated time of the end of the Session we need to start Report at the beginning of February. So, regrettably, our conclusion is that the start of Report cannot be delayed.
I understand the Government’s reluctance to publish risk registers. Governments do not tend to be keen to publish documents that are going to be deeply embarrassing to them. However, will the Minister invite the Information Commissioner to identify key sections of the risk registers that really should be before the House of Lords before it undertakes its work on Report, and will the Government and the Minister comply with the Information Commissioner’s recommendations?
My Lords, this issue turns on a disagreement between ourselves and the Information Commissioner about where the balance of public interest lies. Our view is that the balance of public interest does not lie in disclosure, and his view is the opposite. It would be likely, if we gave the Information Commissioner a second opportunity to look at this, that he would come to the same conclusion as before, so we have to let due process occur.
My Lords, the strategic health body in London was perfectly content to make the register of risks on the health Bill available, so the House needs to know, first, what the difference is—except in terms of size—in the national Department of Health making its risk register available. Secondly, I realise that in appealing the Information Commissioner’s decision the Government have said, in effect, that this decision has cross-government implications. Does the Minister accept that it also has wider implications for Parliament? In this House, our ability to scrutinise legislation effectively must be in doubt if any Government withhold important information from us, so what course of action does the Minister suggest that noble Lords in this House should take under these circumstances?
My Lords, to answer the second part of the question first, a substantial number of the risks pertaining to the Bill are already in the public domain and we are considering whether there is scope to draw these sources of information together in a single place, so that noble Lords can look at them more easily. To answer the first part of the noble Baroness’s question, I made inquiries about NHS London. Its situation is very interesting and quite different from that of the Department of Health. NHS London developed its risk management strategy with a view to it being visible to stakeholders and the public, as its document says. It is therefore a reasonable assumption that officials will have worded their risks for inclusion in the register in the knowledge that that wording would be likely to form part of a document placed in the public domain, so there is a very real difference between the two situations.
My Lords, risk needs to be thought about and assessed thoroughly and often in worst case terms in order to inform policy development and implementation. Risk registers are therefore a basic policy management tool and, for robust risk management to take place, officials have to be free to record all potential risks fully and frankly, with absolute candour, in confidence that anything they say will not be disclosed. If officials knew or believed that what they wished to say was going to be disclosed, that would inhibit them in expressing views fully and frankly. That, in turn, would erode confidence in policy-making and impede good government.
My Lords, apart from the specifics of this case, there is clearly an issue of constitutional significance when this House is being asked to scrutinise legislation without having available to it all the centrally relevant information. That is clearly the case here. Which committee of which House would the Minister recommend looks at this particular constitutional issue?
My Lords, there is a Motion on this very subject before the House in my name, and I hope that there will be an opportunity well before we reach Report for it to be debated. Since public companies are under strict obligations to publish their risk assessments—they have to weigh very carefully what they say because they could be sued by shareholders in their companies—why is it so different for Her Majesty’s Government in the circumstances in which the Information Commissioner has expressed the view that this is a legitimate case that ought to be made available?
The Freedom of Information Act was framed specifically in a way that would protect the process of policy-making within departments. Our view is that the risk register forms an integral part of policy-making and implementation; the Information Commissioner came to a different view. It is about the balance of public interest here: we wish to see this process adjudicated further.