Today, the Information Commissioners Office (ICO) presented a damning report to parliament on the health secretary Andrew Lansley’s decision to use a ministerial veto last week to block the publication of the register.
This followed publication of the information tribunal’s judgement on 5 April, explaining why it ordered the DH to publish the register listing fears about the impact of the reforms. It said the way the reforms were introduced was 'exceptional' because a White Paper was published without consultations after the Conservative manifesto promised no 'top-down' NHS reorganisation.
The DH lost its appeal of the ICO ruling last November which ordered it to publish the register after a Freedom of Information request in 2010 by the then shadow health secretary John Healey.
Today Mr Healey said he has not ruled out a legal challenge. And a spokesman for the ICO said they do not envisage taking further action such as a Judicial Review but have not ruled it out.
Mr Healey said: ‘This is the third time the government’s case for secrecy has been heard and dismissed. It’s the third damning verdict on their desperate efforts to hide from the public the risks of their huge NHS upheaval.
‘The information commissioner confirms the cabinet is overriding the law and their own government policy with the political veto on the NHS risk register. In blunt terms, this report tells parliament that ministers have ridden roughshod over existing FoI law and it warns that this case signals plans to change the law and roll back the public’s right to know.’
In the report, the information commissioner Christopher Graham said laying the report before parliament was an ‘indication of the commissioner’s concern to ensure that the exercise of the veto does not go unnoticed by parliament and, it is hoped, will serve to underline the commissioner’s view that the exercise of the ministerial veto in any future case should be genuinely exceptional’.
Mr Graham dismissed Mr Lansley’s argument that this case was ‘exceptional’ therefore justifying using the veto. The ministerial veto has been used three times before. Once when disclosure of cabinet minutes on Iraq was ordered and on two separate occasions relating to the order of disclosure of minutes of the cabinet sub-committee on devolution.
The ICO report reads: ‘The commissioner does not consider that sufficient reasons have been given as to why this case is considered to be exceptional, particularly in light of the tribunal’s decision dismissing the department’s appeal. The commissioner notes that much of the argument advanced as to why the case is considered to be exceptional merely repeats the arguments previously made to commissioner and the tribunal and which were in part dismissed by the tribunal.’
A DH spokesman said: ‘The circumstances were exceptional in this case. The request was made at a particularly sensitive time when the need for a - safe space - was especially high.
‘The Freedom of Information Act was drafted specifically to allow for the ministerial veto. The decision to veto is not just about the specific content of these risk registers but also about preserving risk registers as frank internal working tools, in the interests of good government.’
- Editor's blog: Why the DH shouldn't publish the NHS reforms risk register