The government will not release its own assessment of the risks posed by its NHS shakeup, despite a second legal ruling that it must stop keeping the document secret.
The Department of Health (DH) was ordered on Friday to publish its transition risk register after it lost an appeal against the information commissioner's ruling that it should be made public. Sources within the department confirmed to the Guardian that the register would not be published.
The information rights tribunal rejected the DH's bid to overturn the commissioner's ruling after a two-day hearing earlier this week at which witnesses for the DH argued, unsuccessfully, for it to be kept private lest it set a precedent that would undermine government departments' ability to assess the risks of pursuing particular policies.
Campaigners – including Labour and key medical bodies such as the British Medical Association and the Royal College of Nursing – have argued that it must be released so that peers debating the health and social care bill can have the full information needed to scrutinise it properly.
The DH's brief initial statement in response to the setback on Friday gave no indication that it intended to comply with the tribunal's ruling that it "dismisses the Department of Health's appeal against the information commissioner's decision that the 10 November 2010 Transition Risk Register should be disclosed, except in relation to the name of a junior official which should be redacted". The tribunal is expected to release the reasons for its ruling soon.
The DH said: "We are still awaiting the detailed reasoning behind this decision. Once we have been able to examine the judgment we will work with colleagues across government and decide next steps."
It now has 28 days from the ruling's publication in which to launch a further appeal, this time to the upper tier tribunal, but it must first prove it has legal grounds for doing so, by finding a legal fault with Friday's decision.
The government's other option, if it were to appeal and lose again, would be to deploy the rare tactic of a cabinet veto to prevent publication, in effect overriding the rulings of the bodies that have so far considered it. That veto was used most notably when Tony Blair was in power, to deny campaigners sight of the legal advice the government received about the legality of military action in Iraq in the runup to the start of the conflict in 2003.
Whatever the DH decides, it is highly unlikely that its analysis of the risks inherent in its radical restructuring of the NHS in England will become publicly available before the bill gains its final parliamentary approval, which is likely to come from the House of Lords on 19 March and the House of Commons the day after.
The ruling is a second significant victory for the Labour MP John Healey, who began seeking publication of the register in 2010 when he was shadow health secretary. "The judgment backs the public's right to know about the risks the government is taking with its NHS plans," Healey said. He renewed his call for the document to be published immediately, to help peers with the final stages of their deliberations on the bill, which is due to undergo the final day of its report stage next Tuesday, 13 March, and then have its third reading in the Lords on 19 March.
"It's near the end of the 11th hour for the NHS bill and parliament rightly expects this information before it takes the final irrevocable step to pass the legislation," Healey said. "The government could appeal, and prolong this legal row. But I call on the prime minister to accept today's court verdict and order the Department of Health to publish the risk register immediately."
He added: "This is the second legal direction to the government to release the risk register. The judgment backs the public's right to know about the risks the government is taking with its NHS plans. It gives strong legal support to a full and open debate about the NHS reorganisation.
"Ministers must now respect the law, release the risk register in full and let people make up their own minds on the NHS changes. Today's legal judgment must put an end to the government's efforts to keep this information secret. They have dragged out this process for 15 months, while parliament has been legislating for their NHS plans."
He was backed by the ex-SDP leader Lord Owen, now a crossbench peer, who has been a key critic of the bill in the Lords. Owen said it would be "a constitutional outrage" if the bill won approval from the upper house without peers having had the chance to study the risk register.
Owen, a former doctor and Labour health minister in the 1970s, said he believed the document should be released now and peers given time to analyse it before any further consideration of the legislation.
He added: "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."
In an appeal to former party colleagues, Owen added: "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."
A spokesman for the information commissioner's officer said: "We welcome the decision of the tribunal to uphold the commissioner's decision notice ordering disclosure of the transitional risk register. We will consider the full details of the tribunal's decision once it has been made available."
The decision comes as the bill enters the final stages of its protracted journey through parliament. The legislation underwent an extraordinary "pause" last year after fierce criticism from Liberal Democrats, and was then rewritten, including advice from the advisory NHS Future Forum.
The DH did win one victory on Friday. The tribunal upheld its appeal against the commissioner's decision that a separate document, the strategic risk register, should be published. While the transition risk register focuses on risks specifically associated with the reorganisation, the strategic document tackles broader risks to the delivery of the DH's objectives. Its publication had been sought by the London Evening Standard newspaper, but it will now remain secret, unless the information commissioner decides to mount an appeal. The Guardian
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