In defiance of the First-tier Tribunal’s decision that the Department of Health should disclose a transition risk register advising on the risks of implementing the proposed reforms of the NHS, Andrew Lansley, the Health Secretary, has invoked a rarely-used ministerial veto and refused to publish the register. In doing so, Mr Lansley stated that while he believed in greater transparency, he also believed it was essential to retain a “safe space” to allow officials to give ministers full and frank advice in developing policies and programmes. In a decision that has emphasised the limited and time-sensitive nature of the protection provided under the Freedom of Information Act to information relating to the formulation of Government policy, the Tribunal held that, at the time of the request, the public interest in maintaining the exemption from disclosure did not outweigh the public interest in disclosure.
The Department of Health appealed against the decision of the Information Commissioner that it was obliged to disclose a transition risk register, arguing that the information was exempt from disclosure because it relates to the formulation or development of government policy (s.35(1)(a) FOIA 2000). On hearing the appeal, the Tribunal reiterated that s.35(1)(a) was a qualified exemption subject to a public interest test. It had a broad construction, and the government was entitled to a “safe space” in order to consider policy options. However, the Tribunal held that the need for a “safe space” would change during the life of a Bill. For example, while the policy was being formulated, at a time of intensive consultation, the need for a “safe space” would be at its highest. Once the policy was announced, the need would diminish. However, while it was being debated in Parliament, (and therefore there could be need for the government to develop further policy), it should be possible for the government to dip in and out of the “safe space” to allow options to be considered.
In this instance, the Tribunal held that the request had been refused at a time when consultation had ceased and policy seemed to be fixed. Therefore the need for a “safe space” was lessened. Given the very high public interest in understanding the risks involved in such wide-ranging and politically controversial reforms to the NHS, it was held that at the time of the request, the public interest in maintaining the exemption did not outweigh the public interest in disclosure.
This restrictive approach to the exemption for information relating to the formulation government policy indicates significant weakness in an exemption that is frequently relied upon by the Government, and may present further opportunities for considerable political mischief. While transparency is to be welcomed, many have expressed fears that this decision could reduce the quality and frankness of policy advice given to ministers, and could discourage civil servants from putting that advice in writing. It will be interesting to see whether these concerns are borne out and whether Mr Lansley’s decision to invoke the veto — used only four times since the Freedom of Information Act was passed in 2000 — will be followed by others in the face of future requests.