In a recent post, Panopticon brought you, hot-off-the-press, the Tribunal’s decision in the much-publicised case of Department of Health v IC, Healey and Cecil (EA/2011/0286 & EA/2011/0287). Somewhat less hot-off-the-press are my observations. This is a very important decision, both for its engagement with the legislative process and for its analysis of the public interest with respect to section 35(1)(a) of FOIA (formulation or development of government policy) – particularly the “chilling effect” argument. At the outset, it is important to be clear about what was being requested and when.

Risk registers in general

The DOH prepared two “risk registers” documenting the risks associated with implementing the “far-reaching and highly controversial” NHS reforms under what was then the Health and Social Care Bill. The Tribunal heard that risk registers are used widely across government for project planning. They provide snapshots (rather than detailed discussions) combining the probability of and outcomes from any given risk associated with the proposed reform; risks are then classified in red, amber or green terms. According to Lord Gus O’Donnell, who gave evidence in support of the DOH’s case, risk registers are the most important tool used across government to formulate and develop policy for risk management in advising ministers. John Healey MP, one of the requesters in this case, said that he was a minister for ten years and was never shown such a register.

The requests and these particular registers

On 29 November 2010, Mr Healey requested a copy of the “Transition Risk Register” (TRR). This, the Tribunal found, was largely concerned with operational matters; it aimed to identify implementation risks. By this stage, the government had already published its White Paper on the reforms. Crucially, the Tribunal’s finding was that the broad policy decision had been taken by the time of the White Paper. The subsequent consultation was largely directed at how best to implement the White Paper. In response to that consultation, the government adhered to the vast majority of its plans, and set about implementing them early where possible.

On 28 February 2011, the second requester, Nicholas Cecil, asked for a copy of the Strategic Risk Register (“SRR”). This was concerned with potential policy decisions for ministers. By that time, the Bill had been laid before Parliament. Parliament’s reaction meant that, in a number of respects, ministers were called upon to rethink policy decisions surrounding the NHS reforms.

Both requests were refused. The IC ordered that they be disclosed. The Tribunal upheld the IC’s decision on the TRR, but allowed the DOH’s appeal on the SRR.

The approach to section 35(1)(a) of FOIA

Before the Tribunal, it was accepted that this exemption was engaged with respect to both registers. The Tribunal considered that the need for a safe space for policy-making was not linear. Its analysis is worth quoting in detail:

“We are prepared to accept that there is no straight line between formulation and development and delivery and implementation. We consider that during the progress of a government introducing a new policy that the need for a safe space will change during the course of a Bill. For example while policy is being formulated at a time of intensive consultation during the initial period when policy is formed and finalised the need for a safe space will be at its highest. Once the policy is announced this need will diminish but while the policy is being debated in Parliament it may be necessary for the government to further develop the policy, and even undertake further public consultation, before the Bill reflects the government’s final position on the new policy as it receives the Royal Assent. Therefore there may be a need to, in effect, dip in and out of the safe space during this passage of time so government can continue to consider its options. There may also come a time in the life of an Act of Parliament when the policy is reconsidered and a safe space is again needed. Such a need for policy review and development may arise from implementation issues which in themselves require Ministers to make decisions giving rise to policy formulation and development. We therefore understand why the UCL report describes the process as a “continuous circle” certainly until a Bill receives the Royal Assent. However the need for safe spaces during this process depends on the facts and circumstances in each case. Critically the strength of the public interest for maintaining the exemption depends on the public interest balance at the time the safe space is being required.

We would also observe that where a Bill is a Framework Bill we can understand that even after it receives the Royal Assent there will be a need for safe spaces for policy formulation as secondary legislation is developed. We note in this case that the Bill, although suggested by DOH to be a Framework Bill, is prescriptive of economic regulation, and cannot be described purely in framework terms.”

Public interest factors in favour of maintaining the exemption: safe space and chilling effect

One of the DOH’s witnesses contended that the registers allowed a safe space for officials to “think the unthinkable”, but the Tribunal found it difficult to see how the registers – particularly the TRR – could be described in that way: “the TRR identifies the sorts of risks one would expect to see in such a register from a competent Department”. Nonetheless, the Tribunal accepted the strong public interest in there being a safe space for policy formulation.

The main argument concerned the chilling effect, which Lord O’Donnell addressed in his evidence. The Tribunal considered that there was no actual evidence of the chilling effect following other instances of comparable disclosures (e.g. following OGC v IC (EA/2006/2068 & 80), or following a 2008 disclosure of a risk register concerning a third runway at Heathrow). Similarly, a 2010 report from UCL’s Constitution Unit concluded there to be little evidence for the chilling effect.

Overall, the Tribunal cautioned against treating qualified exemptions as absolute ones. It said:

“We would observe that the DOH’s position expressed in evidence is tantamount to saying that there should be an absolute exemption for risk registers at the stages the registers were requested in this case. Parliament has not so provided. S.35 (and s.36) are qualified exemptions subject to a public interest test, which means that there is no absolute guarantee that information will not be disclosed, however strong the public interest in maintaining the exemption.”

Factors in favour of disclosure

The DOH’s witnesses sought to play down the significance of the NHS reforms in comparison to other important reforms implemented by government. Mr Healey, however, argued that they were exceptional. The Tribunal agreed with him.

It also noted that the Conservatives’ manifesto for the 2010 election had promised an end to top-down NHS reorganisation, but that its NHS White Paper then appeared to propose exactly such a reorganisation. It was not preceded by a Green Paper. It was clear to the Tribunal that the White Paper was published in a hurry and to much public concern. Given the scale and controversial nature of the reforms, transparency of decision-making was very important.

The Tribunal found the public interest balance to be very difficult in this case. Judging the matters at the time of the DOH’s refusal notices, the Tribunal concluded that the balance favoured disclosure of the TRR but not the SRR – due to the differences in the nature of the registers and the timing of the requests (see above).

Section 40(2) of FOIA and civil servants’ names

Finally, the Tribunal also considered the DOH’s reliance on section 40(2) to redact the names of a number of civil servants on the grounds of their being insufficiently senior for disclosure to be fair. The Tribunal ordered the disclosure of the majority of these names. In so doing, it focused on the substance of what each individual did with respect to this particular information – rather than on their Civil Service grades.

Robin Hopkins