Health and Social Care Bill

I accept the first point. In his article yesterday in the Observer, he called it ““constitutional outrage””— or words to that effect—which was the point of my second proposition. Other noble Lords have made the accusation that the Government have consciously set about concealing the risks associated with the NHS reform programme, but that allegation does not stand up to a moment's scrutiny. The Bill was published some 14 months ago. During that time it has been subjected to a level of analysis, both inside and outside Parliament, that is without recent precedent. I am not just referring to the Bill's impact assessment, which runs to 200 pages and dissects the risks, costs and benefits of the Bill clearly and meticulously. Nor am I referring only to the two successive NHS operating frameworks of 2010 and 2011, which lay out for all to see the risks of putting the NHS reform programme into practice, and how the service can best mitigate those risks. Nor do I wish to highlight only the extensive oral and written evidence that we provided to two House of Commons Select Committees, whose reports took apart a very wide range of risks to which the reforms give rise and made recommendations on the back of that. As much as any of these documents, it is the debates that have taken place in Parliament that have aired the risks associated with the Bill. When added together across both Houses, those debates have been of unparalleled duration and scope. Noble Lords may recall the statement that I made on 28 November 2011, in which I set out a list of nine headings, summarising the areas of risk contained in the transition risk register. Many of those areas of risk have been the subject of amendments and debates during the Bill's passage through the House. For example, one of the risk areas was, "““how to ensure that lines of accountability are clear in the new system and that different bodies work together effectively””." Noble Lords will need no reminding of the amendments that we agreed across the House on the chain of accountability in the NHS or the lengthy debates that preceded them. A further risk area was, "““how to ensure that future commissioning plans are robust, and to maximise the capability of the future NHS Commissioning Board””." We have debated and passed amendments on health inequalities, conflicts of interest, research, education and training and a whole lot more, all of which will directly contribute to those worthwhile objectives. Another area was how, "““to ensure that the new system delivers future efficiencies””.— [Official Report, 28/11/11; col. 16.]" Our debates on integration, the tariff and many other topics have focused on that theme, and there are more such examples. Therefore, I cannot accept for one minute that without sight of the transition risk register the House has somehow been denied a deep insight into what the Bill means for the NHS. It is an absurd proposition. Why, then, is there such an issue over the release of the risk register? We heard the answer to that from the noble Lord, Lord Wilson of Dinton. We are dealing here with something for which I make no apology—namely, a point of principle. It is very firmly the view of the Government—here I refer to departments right across Whitehall—that the release of departmental risk registers would seriously undermine the work of civil servants if it became an accepted practice. Civil servants need to be able to formulate policy advice for Ministers fully, frankly and without fear that what they say may be exposed to the public gaze. The moment that officials feel inhibited in setting out the possible risks attached to a course of action in worst-case terms, the process of policy formulation becomes weaker and good government inevitably suffers. It is our belief, as it has been the belief of successive Governments, that to agree to the release of a risk register such as the one associated with the Bill would be to cross a Rubicon. It would remove the safe space that Ministers and civil servants need to do their job thoroughly and properly. The potential for making that judgment was explicitly recognised and allowed for in the Freedom of Information Act. Indeed, our decision to invoke the Act in order not to release the department's strategic risk register was upheld by the First-tier Tribunal. We await the tribunal's reasons for arriving at this conclusion, and for arriving at the opposite conclusion, with regard to the transition risk register. When those reasons are before us, the Government will need to take a decision on whether there may be grounds for a further appeal. Until then, no one can tell what the legal basis of the judgment is. The judgment is puzzling, in that the arguments we advanced in defence of our appeal were exactly the same in both cases. That was no accident, not least because substantial areas of the transition risk register are covered in the strategic risk register. There is a large overlap between the two documents. The tribunal chairman, Professor Angel, has said that the case is complex and that the reasons cannot therefore be produced within a short timeframe. Equally, that very complexity will almost certainly mean that the Government will need to take the time allowed for them to consider their options, once the tribunal's reasons are before us. I contend that it is perfectly legitimate for the Government to exercise their right to do that, and the Bill should not be held as a hostage to that process. Indeed, this decision will have implications not just for this Government but for all subsequent Governments. This is not and should not be a decision taken in haste. The Government may well require the full 28 days available to them in order to make a decision. At this point, I cannot rule out that Ministers may choose to appeal again. This is not a simple matter to be resolved quickly. If any noble Lords, such as the noble Lord, Lord Grocott, are harbouring such a belief, I would respectfully encourage them to think again.