Tuesday, 8 May 2012

What's really "chilling" about not releasing the NHS Risk Register?

EDIT: I have expanded this article from it's original

BBC and others are reporting that the Government is deciding to stick two fingers up to the Freedom of Information laws of the country, intended to ensure that governments and public bodies aren't able to do things without transparency and scrutiny, by not publishing the NHS Risk Register as they have been order to, thus creating a situation of lack of transparency and lack of proper scrutiny.

The reason given for the veto by "ministers", rumoured to be Andrew Lansley who seems to be unable to cope with his job as a public servant as he works tirelessly to go against what the public want rather than with it, is that it will have a "chilling effect" on civil servants. A Chilling Effect?

A chilling effect is the description used to suggest that through a law or action being in place, people will act differently than they would usually. If you put police on street corners, then they have a "chilling effect" on muggers in the area as they decide not to chance getting caught there and then. This is a "good" chilling effect, as it essentially stops people from doing what they shouldn't be doing (though there are bad effects that go with it, the balance is said to be "good").

Online, however, there are libel laws that greatly favour content owners and intellectual property owners, and the mere whiff of one of those owners bringing a case against you is enough to make you take down what you've written (or choose not to put it up in the first place). Rather than be proven guilty of anything, you are bullied in to an action you shouldn't have to do. This is a "bad" chilling effect, as it puts barriers up that ordinary people cannot fight, and concentrates power away from people that aren't necessarily doing anything wrong in to the hands that aren't necessarily doing anything right.

So...civil servants are going to have this "chilling effect" if we are all able to see the NHS Risk Register? How can that work, for a civil servant to be "chilled" from giving "frank" advice to Ministers? In theory, it can't, since the civil servants all work to a civil servant code (pdf) that states, very clearly...

You must:
provide information and advice, including advice to
Ministers, on the basis of the evidence, and accurately
present the options and facts;

and

You must not:
ignore inconvenient facts or relevant considerations
when providing advice or making decisions;

The code itself is not just a set of guidelines, it is a constitutional document of sorts, a contractual document. By not adhering to the "code" you are, in fact, breaching your contract as a civil servant.

Thus, the idea of civil servants having such a "chilling effect" begs a couple of questions. 1) Do ministers not understand the need for civil servants to be impartial, honest, and to act with integrity? 2) If they do understand, then is the government admitting that there must be a culture in the civil service of breaching the code in order to either a) help minister's causes or, worse, b) to further the agenda of the "civil service party"?

The fact that a "chilling effect" is the main reason for the NHS Risk Register publication being blocked, to me, brings up more worrying connotations about how civil servants act, and the fact that the civil service has (to my knowledge) not come out and quickly put a stop to the idea that their workforce would omit, skew or be dishonest about facts that they are asked to bring is thoroughly confusing.

The only other option is that the ministers in question are trying to use public ignorance to flout the laws that are there to keep the public informed...but they'd never be so brazenly dishonest, would they?

(Updated 09/05/2012):

Since I posted this there has been a lot of retweeting (Thanks @Glinner!) but also a further view on this issue from David Heath MP. He says, in defence of not fully releasing the NHS Risk Register (though not in defence of the veto used)...

The principle of not releasing the private advice of civil servants as part of the process of policy formation was recognised even when we were arguing over the original legislation line-by-line. Indeed, I remember trying to persuade ministers then to differentiate between the information on which policy was based — statistics, factual information and the like — which ought to be made available, and the opinions expressed by policy-makers disclosure of which might harm the process.

I fundamentally disagree with this view, though it may be naivity of the machinations of parliament and government on my part. For me the part a civil servant plays is black and white. They are there to provide information and advice for ministers and politicians that don't have the benefit of a long understanding of policy progressions and the realities of policy creation. At their core function civil servants are the glue that keeps successive parliaments moving along smoothly (in theory!).

However I once again ask, if the advice they give is not something they can back up with facts and figures, then shouldn't we know about this? If it is not ministers who come up with direction, but ultimately just take on the advice of a civil servant, how can we lay blame for failure in policies at the minister instead of at an unknown set of individuals giving poor advice?

I don't have a problem with civil servants being frank about their own experiences and views, and how they would colour their decision...more than anything else there is no way that we can ensure that such informal advice could be made transparent anyway...what I do balk at is the idea that actual official advice, the sort that would be formally recorded for an NHS Risk Register, for example, is not something we should see.

If we were talking here about companies, and business leaders, securing visits to ministers and giving them "advice", we'd want to know what influence those companies are having. We are tired of the practice of lobbying where companies get to operate under the radar in influencing our policy direction, and rightly so. Yet on the flip side we're meant to just accept that civil servants should be able to do the same?

I would argue that we need much greater accountability, and if poor decisions are being made through formal advice the public shouldn't be shielded away from how that advice came about. Who knows how many policy decisions are being based on bad statistics, or incomplete or questionably relevant studies? If ensuring FOI requests also shone a light on the advice given by the civil service, and results in civil servants no longer giving questionable advice...isn't this a good thing? If anything it would mean ministers would have to choose to operate on little advice, or to commission a more robust fact finding exercise, something I feel we sorely lack in policy decisions right now.

Publish the NHS Risk Register, let civil servants stop giving advice that they know would not stand up to public scrutiny, I don't see how our political system would be worse for it.