EA/2011/0286 & 0287 IN THE MATTER OF AN APPEAL TO THE FIRST-TIER TRIBUNAL (INFORMATION RIGHTS) UNDER SECTION 57 OF THE FREEDOM

OF INFORMATION ACT 2000

B E T W E E N:DEPARTMENT OF HEALTH Appellant -and-

THE INFORMATION COMMISSIONER First Respondent -andJOHN HEALEY MP Second Respondent

WITNESS STATEMENT OF JOHN HEALEY MP

I, JOHN HEALEY MP, of House of Commons, London, WILL SAY as follows: Introduction 1. I am the Labour Member of Parliament for Wentworth & Dearne in South Yorkshire. I was first elected to the Commons in 1997. Throughout almost 15 years as an MP I have been closely involved with local developments, and difficulties, in the NHS and been in close working contact with local doctors, nurses, para-medics, pharmacists and patients groups. Throughout this time every three months, I meet with the chair and chief executive of our local Rotherham hospital and of our commissioning trust. Constituents patients and staff who need individual help with NHS complaints or health problems also regularly require my detailed personal involvement in how the NHS is working. So like any good constituency MP, I have a well informed lay view of the NHS. I am also a father and a son, with a wider family. We need the NHS. We trust it when we are most fearful. We utterly depend on it when we are most

vulnerable. This is why our NHS matters so much and means so much to almost everyone in the country.

2. In October 2010 I was appointed Labours Shadow Health Secretary. I served in this role until I took the decision to step down from the shadow cabinet a year later.

3. I submitted my FoI request for the Department of Health to release the risk register for the transition of the Governments NHS reorganisation in November 2010. The Information Commissioners Decision Notice was issued in November 2011. During this period the Health and Social Care bill was introduced in the House of Commons in January 2011, and by December 2011 had been passed by the Commons and completed its Committee stage in the House of Lords. The Governments Parliamentary business schedule means the Lords are set to pass the bill back to the Commons by Easter, so it receives Royal Assent before a probable end to the present Parliamentary session and new Queens Speech in May.

4. The chorus of criticism and coalition of calls for the bill to be dropped or significantly further amended is greater now than at the start of the bills Parliamentary passage. Public, professional, and Parliamentary concern about the changes and the need for reassurance about the possible consequences is also greater now than when I made my disclosure request.

5. The public interest in disclosure is urgent in light of the NHS bill before Parliament; but it will remain important during the period of transition to the new system over the next 2-3 years.

Disclosure of the NHS transition risk register is exceptional, specific and vital for public reassurance

6. The Governments health reforms are the biggest reorganisation in NHS history. Its NHS bill is the longest ever; more than three times longer than the 1946 Act that set

up the NHS. The changes are being carried out during the tightest financial squeeze on health services finances since the 1950s.

7. Furthermore, NHS reorganisation was explicitly ruled out in the Conservative election manifesto and the Coalition Agreement in May 2010. So the huge upheaval launched by the White Paper just two months later was unexpected; and the NHS and civil service were unprepared.

8. Risk has therefore been at the heart of concern about the NHS reforms from the outset. Lack of evidence and confidence about how well the Government was prepared to manage the risks was a major cause of growing professional, public and Parliamentary alarm at the plans in Autumn 2010 and Winter 2011. 9. The Conservative-chaired, All-Party Health Select Committee published its 2nd Report of the 2010-11 session on Public Expenditure in December 2010. It observed:
We have heard numerous warnings of the risks involved in combining the tight spending envelope and the need for unprecedented efficiency savings with the large-scale reorganisation of NHS structures.

And concluded:
There are clear risks associated with the transition period. For example, SHAs and PCTs will cease to exist, but there will be a reliance on them in the short-term around both managing the transition period and delivering ongoing efficiency savings, such as those associated with the QIPP programme ...Even if well managed, widespread organisation reform can mean services stand still for a period rather than progress. If managed poorly, services and finances may suffer. There is clear evidence that organisations distracted by reform can experience major financial and service failure.

10. In its 3rd Report on Commissioning published in January 2011 the Select Committee concluded:
"Like most observers, the Committee was surprised by the change of approach between the Coalition Programme and the White Paper. The White Paper proposes a disruptive reorganisation of the institutional structure of the NHS which was subject to little prior discussion and not foreshadowed in the Coalition Programme. While such a surprise approach is not necessarily wrong, it does increase the level of risk involved in policy implementation. It allows less time to understand complexity and detail, and less time to develop and explain policy; and it leads to less understanding of objectives by staff, patients and local communities. A successful surprise strategy requires clarity and planning, but the Committee does not think that the White Paper reflected these qualities. There appears to

have been insufficient detail about methods and structures during the transitional phase. The failure to plan for the transition is a particular concern in the current financial context. The Nicholson Challenge was already a high-risk strategy and the White Paper increased the level of risk considerably without setting out a credible plan for mitigating that risk.

11. Since then, concern and interest about the NHS reform risks and their management has been voiced by Peers and MPs of all parties, and by almost every patient, professional or expert organisation involved in the NHS. In nearly 15 years as a Member of Parliament, this breadth and intensity of interest is unprecedented.

12. This helps underline why the risk register for the transition specifically was and is of such significant public interest; and why the public interest in making available details of how the Government has assessed and mitigated those risks both for public scrutiny and public reassurance massively outweighs the case for nondisclosure. 13. This also helps underline why the Information Commissioner is right to say in explaining his decision to order disclosure of the transition risk register that:
The public would arguably be reassured by the fact that the Government has thought of and assessed all risks relevant to matters of such high sensitivity [para 46, Commisioners Consolidated Response to the Appeal, 13 January 2012].

14. The NHS is an exceptional institution. There is an inherent exceptionality about risks associated with NHS reform.

15. The NHS in England treats three million patients every week. It employs more than 1.4 million staff. It provides some of the best health care in the world free at the point of need to each and every one of us in Britain, throughout our life. 16. When asked what Britains greatest achievement was in the 20 th Century, above establishing the welfare state or winning the Second World War twice as many people say introducing the NHS [IPSOS-Mori, 1999].

17. I have spent nearly 30 years of my working life involved in public policy, and there are always debates in public and in Parliament about changes in the NHS. The current NHS reform plans are exceptional in their nature, scale, pace and timing; the Government is entirely and simultaneously changing NHS commissioning, provision and regulation.

18. This is why there is exceptional attention and concern about the risks associated with implementation.

19. This is why I believe the Information Commissioner who has had the benefit of seeing and assessing the Governments Transition Risk Register was right to assert the view that:
Disclosure would serve the public interest by aiding public understanding of the governments proposals [para 26, Information Commissioner Decision Notice, 2 November 2011].

And that:

Disclosure would go somewhat further in helping the public to better understand the risks associated with the modernisation of the NHS than any information that has previously been published. For instance, the risk registers as well as identifying potential risks also contain information on the likelihood of each risk occurring, the impact of the risks and the public authoritys plans to mitigate these risks. For these reasons the Commissioner has given the public interest in greater transparency and accountability particular weight in this case [para 32, Information Commissioner Decision Notice, 2 November 2011]

Risk register has information not available elsewhere

20. The Government has argued that the information contained in the transition risk register has been made available already. The Information Commissioner has rightly rejected this argument.

21. What is typically contained in a Departmental risk register is set out by HM Treasury in its publication Management of risk principles and concepts, commonly referred to in Government as The Orange Book: 5

A risk register contains an objective list of the Departments view of the risks associated with the implementation of a programme or a policy together with the Departments estimation of the likelihood of each specific risk occurring and severity of outcome if it did occur. It also sets out the Departments proposed action which is typically one of four options Tolerate the risk, Treat the risk by a specific proposed action, Transfer the risk to another party of Terminate the activity giving rise to the risk.

22. The Health Minister responsible for FoI, Lord Howe, has confirmed the nature of the risk register information to the House of Lords as follows:

I am happy to set out for the record the broad issues covered by the transition risk register. They are as follows: how best to manage the parliamentary passage of the Bill and the potential impact of Royal Assent being delayed on the transition in the NHS; how to coordinate planning so that changes happened in a co-ordinated fashion while maintaining financial control; how to ensure that the NHS takes appropriate steps during organisational change to maintain and improve quality; how to ensure that lines of accountability are clear in the new system and that different bodies work together effectively, including the risk of replicating what we already have; how to minimise disruption for staff and maintain morale during transition; how best to ensure financial control during transition, to minimise the costs of moving to a new system, and to ensure that the new system delivers future efficiencies; how to ensure that future commissioning plans are robust, and to maximise the capability for the future NHS Commissioning Board; how stakeholders should be engaged in developing and implementing the reforms; and finally, how to properly resource the teams responsible for implementing the changes [col 16 Lords Hansard, 28.11.11].

23. None of this important information potentially vital to increasing public understanding and reassurance about the effective management of the Governments NHS plans has been made available elsewhere by the Government.

Risk registers are a tool for managing delivery not developing policy

24. Risk registers in Government are a management not a policy tool. Risks are certainly relevant to policy development and policy decisions. But the risk register is derivative from policy decisions. It is an executive not a ministerial document; its purpose is operational and managerial, it does not contain policy advice or policy discussion.

25. Lord Howe explained this to the House of Lords:

The risk register is a basic tool for the management of policy implementation [col 693 Lords Hansard, 16.11.11]

26. This weakens the Governments argument that the risk register specifically is part of the formulation or development of government policy and therefore exemption under s35(1)(a) applies.

Chilling effect and Safe space 27. It has been suggested by the Government that if risk registers were made available under FoI then officials would be reluctant to record risks, risk appetite and proposed mitigating actions fully or accurately.

28. I do not accept this. It should be understood that the accurate recording, reporting and treatment of risk is not an optional activity for any Government Department. It is a core responsibility to be overseen by the Permanent Secretary in his or her role as Accounting Officer to Parliament and HM Treasury. In fact, the accurate assessment and recording of risk and the maintenance of a robust and fit-forpurpose risk management regime is overseen by its Non-Executive Directors and Audit Committee (a sub-Committee of the Departmental Board) and audited specifically by both the Department's Internal Auditors and the National Audit Office as external auditors on behalf of Parliament and the taxpayer. If any one of the Permanent Secretary, the Non-Executive Directors, the Audit Committee, the Internal Audit Service or the NAO's external auditors believe that officials are not adequately assessing, recording or managing risks, this should be reflected in the annual Statement of Internal Control produced by the Department in agreement with its auditors.

29. The NAO make this explicitly clear in their January 2010 publication, The Statement on Internal Control: A Guide for Audit Committees.

30. So the Information Commissioner is right to reject this chilling effect argument from Government in relation to the risk register: 7

The Commissioner maintains that disclosure of the particular information in dispute here is unlikely to have such effects as regards the contents of future risk registers, let alone the contents of written submissions and other forms of advice to Ministers [para 48 Information Commissioner Consolidated Response to the Appeal, 13.01.12].

31. Having held five ministerial posts in three different departments over ten years, I know from experience the importance to Ministers, civil servants and the effective conduct of Government of space to discuss and consider policy options then take policy decisions.

32. However, policy formulation or development and policy decision taking is conducted through submissions, memorandums, information requests, meetings, data analysis etc for Ministers; all of which are different in nature to a risk register. A risk register is the product of policy decisions and confirmation that proper analysis and anticipation has been carried out of the potential consequences of such decisions. This is the reason that it is a specified part of the formal assurance and audit systems of public service governance.

33. Given the exceptional level of concern about the consequences of the Governments NHS reforms for service standards, patient safety and financial control there is an exceptional public interest case for disclosure of the transition risk register and an important contribution to public reassurance by doing so.

Conclusion 34. In conclusion, my FOI request is nothing more than what the Government has itself promised Parliament and the general public.

35. Today on HM Treasury's website is the following public statement of the Government's principles for risk management:

"Government will be open and transparent about its understanding of the nature of risks to the public and about the process it is following in handling them. Government will make available its assessments of risks that affect the public, how it has reached its decisions, and

how it will handle the risk. It will also do so where the development of new policies poses a potential risk to the public."

36. I ask simply what the Government has promised.

Statement of Truth I believe that the facts contained in this statement are true.

Signed_____________________________ JOHN HEALEY MP Date: 11.02.12