Shine A Light

England's NHS: the third constitutional outrage and the Lib Dems

David Owen
9 March 2012

The government is refusing to publish its own internal risk assessments of the impact of its reforms. Could this be because they will illustrate that marketisation is the name of the game, not patient health? The Information Commissioner said the government was wrong. The government appealed. Its appeal has just been overturned as the Press association reports here.

The Government has lost the latest stage of its fight to prevent publication of an internal civil service assessment of risks posed by the controversial NHS reforms. A Department of Health appeal against an order by the Information Commissioner to publish the "transition risk register" was thrown out by a tribunal.

Officials argued disclosing the dossier would inhibit civil servants from speaking their minds to ministers in the future. The Information Rights Tribunal upheld the commissioner's ruling that the November 2010 document should be disclosed. The call for the register to be published was made by former shadow health secretary John Healey. In response to the tribunal's decision he said: "The judgment backs the public's right to know about the risks the Government is taking with its NHS plans."

The Department of Health will await the tribunal's full decision before deciding whether to appeal.

The question now is whether the government will appeal yet again, and this has led David Owen to issue the following strong statement:

“Surely now Liberal Democrat Peers, with a long and proud history of supporting freedom of information, will not go along with any attempt by the Coalition Government to continue with the Third Reading of this Bill in the light of today’s Information Rights Tribunal on the NHS Transition Risk Register.  If the Government insist on appealing to the High Court then they must accept that the Bill is paused until that judgement has been made. If, as they should, the Government publishes the Bill’s risk assessment now then the House of Lords will need time to satisfy itself – as I say in the motion which I have had on the Order Paper since before the Christmas recess -  “in the light of any further examination of risk, and taking account of the views of the health professions, that the risks of not proceediing with the Bill are greater than the risks inherent in the Bill itself”.

To go ahead with legislation, while appealing to the High Court, would be the third constitutional outrage associated with this legislation.  The first was to legislate within months of the Prime Minister promising in the General Election that there would be no top-down reorganisation of the NHS. The second was to implement large parts of the legislation without Parliamentary authority.  The attempt to railroad this legislation through both Houses of Parliament has raised very serious questions about the legitimacy of this Coalition Government.  Now at the last moment Parliament has a chance to assert its democratic rights and the many Liberal Democrat Peers, who know in their heart of hearts that this legislative procedure is fundamentally wrong, have the opportunity to stand by their principles.”

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