Its full decision was only published on Thursday despite it ordering the government to disclose the transitional register into the implementation of the Health Act on 9 March, following a two-day hearing.
Now fresh pressure is mounting on the DH to publish the register after previously saying it was awaiting the full decision before it decided to appeal the decision or publish it.
The decision reveals the only consideration the tribunal had to make was whether there was a strong enough public interest case. It concluded that the transitional risk register should be published except for the redaction of the name of one junior civil servant.
The decision reads: ‘In this case the policy process is unusual and complicated. There was no prior consultation to the White Paper. Consultation took place afterwards. The government largely proceeded with its proposals for reform. The Bill was subject to unprecedented debate and public concern leading to a listening or further consultation exercise.
‘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.
‘The public interest in understanding the risks involved in such wide-ranging reforms of the NHS in the circumstances just described would have been very high, if not exceptional in this case.’
This comes after the DH lost its appeal to the Information Commissioner’s Office ruling last November which ordered it to publish the ‘transitional risk register’ after a Freedom of Information (FoI) request in 2010 by the then shadow health secretary John Healey.
Mr Healey said: ‘The government has lost twice in law trying to keep the NHS risk register secret and ministers must now release it, as the court says they should have done 16 months ago.
‘What was the Health Bill is now law but the risks of the government's huge NHS reorganisation remain.
‘The government used its big guns to defend its refusal to publish the risk register and this legal judgement demolishes its case for secrecy. However long the government fight to delay release, this court case will become an FoI landmark and in the long run ministers will have to disclose more risk details on major policy changes to the public and parliament.’
A DH spokeswoman was unable to comment.