It’s a secret

Baroness Deech

On Wednesday 7th there was a brief diversion from the progress of the consideration of amendments to the Health and Social Care Bill.  Baroness Thornton proposed a motion that the House should be able to see the risk register pertaining to the Bill.  The Information Commissioner had ruled that it should be disclosed under the Freedom of Information Act, but the Department of Health had appealed against that ruling.  So either the House had to proceed with its consideration of the Bill without knowing what was in the risk register, or it had to wait for the result of the appeal, which in turn might be taken further on appeal, and it would cause considerable delay.  The uncertainty arose because under the Freedom of Information Act 2000, s.35, there is granted an exemption from the right to know if the information in question is held by a government department and relates inter alia to the formulation or development of government policy.  But even where the s.35 exemption applies, as it did to the health risk register, it may be ignored if the public interest in disclosure outweighs the public interest in keeping the information confidential.  The arguments for keeping certain government information confidential were put in the debate and in an earlier one on the same issue by Lords Butler and Clement-Jones, that automatic disclosure ought not to be used to damage the ability of the government to debate policy and make decisions without being hindered by premature external comment; and that disclosure could have a chilling effect on the candour with which persons involved in debating policy make their contribution. Baroness Thornton’s motion was lost.

I set this out in order to illustrate just how difficult it has become to decide what is secret and what is not.  The Information Commissioner has the extremely difficult task of balancing two public interests against each other under the FOI Act.  Reasonable people could go either way. All of which reinforces the argument I made the other day that it has become hard to make sense of what is kept secret and what is disclosed under the Data Protection Act and the FOI Act.  In general we do not seem to know, or agree, when matters are confidential and when they are not, and what is the public interest that might be invoked as an excuse for revealing otherwise naturally confidential material.  So phone-hacking is generally regarded as immoral and illegal (although few complaints were raised when Prince Charles’ conversations with the now Duchess of Cornwall were published in 1989); but the sensitive and even life-threatening material revealed by wikileaks does not seem to be regarded as equally wrong. Some injunctions to guard against publication of the details of the life of a famous person are regarded as unnecessary, others acceptable.  Is it permissible to break the law in order to secure information that is subsequently judged to be in the public interest, e.g. it is said that some investigative journalists pay to get confidential material, or bug conversations?  There may be a public interest defence to illegal phone-hacking, and if so, what is the definition? Perhaps the Leveson and other inquiries will clear all of this up.  It would be good to have some sound principles of privacy/openness in private/public life, although the need for a judge or the Information Commissioner to balance competing public interests in this sphere can probably never be dispensed with.

13 comments for “It’s a secret

  1. Gareth Howell
    09/12/2011 at 9:18 am

    I wonder which search terms to use for this post?

    Health and social care bill risk register?

    Bit long. I’ll try it.

  2. Gareth Howell
    09/12/2011 at 9:50 am

    http://services.parliament.uk/hansard/Lords/bydate/20111128/mainchamberdebates/part008.html

    The script is there already.

    Catch 22 I am therefore concerned about what the issues are that the Government have decided that we should not know about. What are the risks that we cannot know about? That is a matter of grave concern to the Committee.

    The gracious earl has a way of making government work seem like that… that only he,and a select few should know. I noticed it the other day.

    The commissioning of the new computer system the links to which I put up the other day for the noble Baroness Murphy is the question.

    The only secrecy I can think of is the confidentiality of individual patient details whilst it is being commissioned.

    If the govt commissioned its new system in the way that South West Trains has done with its ticketing computers , then it would certainly stink very badly.

    http://www.pscal.com/?gclid=CM-_haOSvawCFQVTfAodkCuOnw

    http://www.pscal.com/index.php?option=com_content&view=article&id=149&Itemid=127

    Service Level Agreement Management(SLAM)

    http://www.manageengine.com/products/applications_manager/sla-management.html?gclid=CMWWmf6VvawCFQIf4QodFWrApA

    http://www.guardian.co.uk/society/2011/nov/17/labour-repeal-nhs-bill

    https://docs.google.com/viewer?a=v&q=cache:BDEHKT_kcoYJ:www.mccn.nhs.uk/userfiles/documents/SLA%2520final.doc+nhs+service+level+agreements&hl=en&gl=uk&pid=bl&srcid=ADGEESgVSqtoknN7o37eb19uosdeXytBLt3LVE-NQBXg7T3wSFzRtp7BmEWili_ho4VqBh0yC8_e5aGKsl1Xd3xd7Wkc9lIx_u4aJ8ksExDns0gUrGlTWRVOHpKxwdqFb-bVTElPEMqA&sig=AHIEtbR8OwgFWzBaiT3jxN1WBTgz7PA6DQ

    Specimen copy of NHS SLA (Quick view google)

    http://www.pscal.com/index.php?option=com_content&view=article&id=153:nhs-leeds-select-slam-to-facilitate-the-requirements-of-future-gp-commissioning&catid=1:latest-news&Itemid=131

    Search terms? PASCAL and SLAM

    These links are reproduced from B Murphy’s leading post on the subject:

    http://lordsoftheblog.net/2011/11/16/getting-cultural-change-into-a-bill/#comments

    I had no replies to my links and the only discussion I have ever succeeded in having on the subject was with a lady computer programmer working at the Southampton end of the system about 6 years ago, when they were getting along well with the organization of it.

    SLAM seems to be a new development of it.

    I shall continue to look at the security issues, since the noble Ladies and Earl Howe
    consider that there are some.

    I have my doubts, except in so far as the integrity of the patient and his/her rights are concerned in the long term.

    The possible serious injury to a woman, unable to deal with modern computer technology of any sort, and there are those who can not, especially mathematically challenged women, that I have mentioned in a recent post on the commissioning of SWT £500m computer system, does not augur well for the
    commissioning of other such computer systems such as PASCAL and SLAM, and the rights of the patient must be considered in the greatest detail.

    THAT,Noble Baronesses may be what Earl Howe is considering when he refers to risk, and the risk register.

    That, by analogy is probably the answer to B Thornton’s question above.

    Children would be at risk in some way among others.

    B Deech may be taking the letter further than the spirit, which lawyers tend to do.

  3. Twm O'r Nant
    09/12/2011 at 10:22 am

    I declare an interest as the chair of King’s Health Partners, an academic health science centre. Part of the centre’s mission is to accelerate the translation of research into patient care—getting a faster process from bench to bedside. It is in that capacity that I move the amendment.

    20
    The focus in the Bill on outcomes for patients is very welcome.

    My good friend, and opponent, noble Lord Butler.

    THAT is the risk! The OUTCOMES for PATIENTS

    Baroness Cumberledge also puts her finger on it,well.

    The Bill seeks to ensure that the quality of NHS services will improve by using new and increasingly much more sophisticated commissioning systems. If this key objective is to be realised, it will require commissioning of a very high quality. Pathfinder clinical commissioning groups are beginning to get a grip and to understand the health needs of their local populations, ¦23but inevitably others will lag behind and we will see variations in commissioning.

    AND the effects that it may have on individual patients, as a consequence.

    That is the purpose of the risk register.

    I am not quite clear as to the formal date of the commission, the “passing out parade” as it were.

    Commissioned or not commissioned, it is the proper training of staff WITH the computer system in question which determine the success or otherwise of it.

    As follows: (Cumberledge)
    Therefore, how can potential parents choose when they are not even aware of the options? Why do health workers, especially GPs, seeing a woman at the first booking, not tell them what is available? The majority only tell them where to go, and that is hospital.

    THAT is the risk.

    Of course NICE is always relevant in the context, always remembering the input of staff to the computer systems,and the proper interpretation of it for the patients best interests.
    http://www.nice.org.uk/guidance/index.jsp?action=byType&type=2&status=3

    Baroness C may not be aware of the state of play of the commissioning. Exact date?
    Sequential dates? This Bill to Act?

    PATHFINDER are endeavouring to eliminate the risks.

  4. Twm O'r Nant
    09/12/2011 at 10:29 am

    Thanks very much for Baroness’ Deech concerns.

    http://www.dh.gov.uk/en/MediaCentre/Pressreleases/DH_122399

    This is the nub of the matter at local level.
    Her mention of FOI are a side issue.

    These local groups are going to do the best they can to avoid “risk”.

    —————————-
    Three sequential posts. Twm/Gareth

    The commissioning of a new Hansard Blog would be a very valuable addition to our own discussions, but I am only an OAP and can not regrettably contribute to the charity funds in any useful way.

  5. baronessmurphy
    10/12/2011 at 10:32 am

    At the risk of appearing flippant, I have perused many risk registers and contributed to many. They act as a kind of ‘ass-insurance’ for managers and civil servants to ensure every possible wrinkle and remote risk are covered, even though the likelihood is less than pigs flying, just in case, just in case. There will be densely typed columns of risks, followed by further columns of red, amber and green ‘traffic lights’ to monitor their current state of likelihood. They make frightening reading and one can just imagine what political parties looking for a quick way to make capital would make of the Department of Health one. Daily Mirror headlines “Secret Government document admits reforms will risk death of millions” etc etc. Risk registers are a creative useful tool for internal discussions; if they become public civil servants will simply find another way of warning ministers of all eventualities. The Cabinet Office publishes a National Risk Register at http://www.cabinetoffice.gov.uk/resource-library/national-risk-register; it uses blue clouds rather than traffic lights. But it was specifically created for public consumption, not as a tool for Government to use.

  6. maude elwes
    10/12/2011 at 4:32 pm

    @Baroness Deech:

    When government is keeping from its insiders, in this case the Lords, facts they must have in order to make decisions or judgments, it is because if you knew what they were doing it would be unacceptable on any level.

    So the secrets they won’t allow you to have or see, are so earthshakingly against the best interests of the public that they dare not let it be known.

    It has to be that whatever they plan for our health service is so utterly against any policy they have offered the public openly, they know once it is ourt, they too will be out.

    Why are the Lib-Dems staying silent on this matter?

    And here I am believing Earl Howe is a man to be trusted. Sadly, it appears this may not be the situation.

    Another secret I read of today from, Quentin Letts, is that the US, alledgedly, has secret UK bank accounts filled with vast sums of US money. Supposedly placed there by varous agents. The exposure of this was due to be received from Lord James, but he has been stiffled by our Attorney General. Now why is that I wonder?

    Could it be pay off money for some British political ‘friends’ who are willing to jump to the US tune, once they make a call? Or could it be much deeper than that?

    Will we ever know or will it remain silent and therefore take our banks into collusion in money laundering deals?

  7. maude elwes
    10/12/2011 at 6:31 pm

    Here is another, more or less, secret. An eye opener for all of us.

    It suggests that governments are hiding the truth on the banking ripp offs. And that they do not want to regulate against this happening again.

    Europe wants to end this robbery with violence. Our government is not happy with that shut off.

    Of course it began in the USA but greed followed throughout.

    This is a documentary. It lasts one hour and forty minutes. So, cannot be watched at work. However, if you want to know about real politics, it is worth every minute of your time.

    http://www.bbc.co.uk/iplayer/episode/b0183l0t/Storyville_20112012_Inside_Job/

  8. 11/12/2011 at 3:41 am

    On the dissemination of information related to the Health & Social Care Bill:

    What exactly was Baroness Thornton asking, and what were the strengths of the arguments used to defeat her motion? (I note here that I have not heard, or read any transcript of, the debate, I am merely commenting on the noble Baroness’ post).

    “Baroness Thornton proposed a motion that the House should be able to see the risk register pertaining to the Bill.”

    “The arguments for keeping certain government information confidential were put in the debate and in an earlier one on the same issue by Lords Butler and Clement-Jones, that automatic disclosure ought not to be used to damage the ability of the government to debate policy and make decisions without being hindered by premature external comment; and that disclosure could have a chilling effect on the candour with which persons involved in debating policy make their contribution.”

    It seems to me that Baroness Thornton was not necessarily asking for public disclosure of the information, much less public submissions, but rather that those who were called upon to “debate policy and make decisions” were sufficiently armed with the facts to first identify and then debate all issues, with candour. How does it not “damage the ability of the government to debate policy” to withhold important information from those charged with that debate.

    (I also note here that I have not read the Bill, and do not have a full appreciation of what the risk register is likely to cover).

    In general, it has to be of concern that the Department of Health is unwilling to open for public comment something that would appear to be as important as a risk register – unless of course, the facts are such that riots are to be feared…

    Less frivolously, I mean to say that it is difficult to imagine that the public interest in keeping the risk register secret could outweigh the public interest in people knowing about it, and yes, being able to potentially influence policy by commenting upon it. Reasonable people might well differ, but how many of those would be dependent on the NHS for their health services? The public interest in being informed about such matters as health is surely very high, and it must be the case that the public interest in those appointed or elected to debate matters on behalf of the public being fully informed prior to debate must be even higher.

    It is also of concern that in the face of the finding of the Information Commissioner that the risk register should be released, the Department of Health is so concerned to keep it secret that it is willing to spend freely of the public purse in pursuing an appeal – and in the future, perhaps more than one.

    By way of broad illustration, I note that in New Zealand, the government has been congratulating itself recently (and very vocally in the run up to the election) about the reduction of waiting times for publicly funded surgery, those who need surgery we were told now get it within 6 months, as opposed to the years they had to wait under the previous government. Investigations by the publicly funded radio broadcaster discovered that this wondrous situation has been achieved by simply, and without explanation, not putting large numbers of people on the waiting list at all, despite pleas from their doctors and specialists, but rather classifying them, without clinical input, as ‘to be monitored’, or similar. Many of these people now have no choice but to apply for their surgery at the burgeoning number of charity hospitals. Few records, and certainly no accurate records, are kept of how many people don’t quite make it onto the waiting lists. The latter illustrates one difficulty resultant upon allowing access to public information. Sooner or later someone will work out that all you have to do in order to keep something secret is not record it. However, this is exactly the kind of information that should be in the public domain, and moreover available to those who debate policy on our behalf.

    On these matters in general:

    “In general we do not seem to know, or agree, when matters are confidential and when they are not, and what is the public interest that might be invoked as an excuse for revealing otherwise naturally confidential material. So phone-hacking is generally regarded as immoral and illegal (although few complaints were raised when Prince Charles’ conversations with the now Duchess of Cornwall were published in 1989); but the sensitive and even life-threatening material revealed by wikileaks does not seem to be regarded as equally wrong.”

    There is surely an important difference between the privacy individual human beings (including prominent ones) should be able to expect in the conduct of their lives, and the information inherent in the conduct of government. The publication of private communications between lovers is reprehensible, even if they are prominent and unpopular. It is less clear how much of the information produced and held by our governments should be classed as “naturally confidential material”. Not having viewed any of the information displayed on the wikileaks site, I make no comment on it. However, it seems to me that just as there ought to be a principle of private life for individuals, there ought to be a principle of openness for government. We expect our government to keep certain information secret, but secrecy should be the principled exception, not some Orwellian norm.

    Having said this, it can be difficult to tell what information is truly private and what ought to be available for publication. An interesting example of this emerged recently in this country, again during the run up to the election. New Zealand operates an electoral system similar to that in Germany, and the prime minister invited a member of a sympathetic minor party to tea in a cafe in a key electorate in order to encourage voters in that electorate, who wished to re-elect the prime minister, to vote for the minor party’s candidate in the hope that this would result in a stronger majority by coalition. In order to get publicity for this event, the media was invited. At some point the prime minister is said to have told the members of the media to leave them. A black bag containing an active recording device remained at the table whilst the prime minister and the minor party candidate discussed a number of matters, which are alleged to have been of considerable public interest. The prime minister looked in the bag, discovered the recorder and called in the police. Subsequently search warrants were executed against various media outlets. Neither the tape, nor any transcript, has yet been published.

    The cameraman who had recorded the conversation claimed that he had not done so deliberately, but in anticipation of charges being laid, he asked the High Court to rule on another question, being whether the conversation was private or not. Polls indicated that many people though the conversation was private, but this view may also have been influenced by the high popularity of the prime minister. Many also took a different view. The High Court refused to rule.

    • Baroness Deech
      Baroness Deech
      12/12/2011 at 8:03 am

      Welcome Jana! I agree with your comments about the risk register, while also sympathising with the comment by Baroness Murphy that they are actually not very helpful when you see them. It is the principle of the thing. Here’s the link to the discussion on the Thornton motion – http://www.publications.parliament.uk/pa/ld201011/ldhansrd/text/111207-0001.htm#11120746000828. And on wikileaks, the information I am worried about was actually individual, it was the names and addresses of people abroad who are under threat from their governments, and who can now more readily be found.

      • 12/12/2011 at 9:08 am

        Thanks for the link – a fascinating if disturbing debate.

        One comment I found especially disturbing was the following:

        “How, therefore, should this issue be dealt with? Not, as I say, by requiring the release of a particular document originally written for a different audience.”

        It would be a very dark place, if debate be only informed by “evidence” tailored to the debaters’ eyes (who will watch the writers?).

        The noble lord in question’s earlier declaration of his particular interest was not encouraging in this regard either.

        I note that it was not clear from your original post that Baroness Thornton was not thinking of (or perhaps, living in hope of) holding up the passage of the Bill, but rather that her intention was that the House record its disapproval of being forced to debate and thus decision with incomplete information (a Motion of Regret). Under the circumstances, the outcome – defeat of the Motion – seems, to put it politely, wrong.

        Particularly as the amendment proposed was merely to state that:

        “This House regrets the Government’s appeal against the Information Commissioner’s ruling”.

        Deeply regrettable, I would say.

        • Gareth Howell
          13/12/2011 at 9:13 am

          I am worried about was actually individual, it was the names and addresses of people abroad who are under threat from their governments, and who can now more readily be found.

          A very special case indeed, but the job of an MP or peer to raise the question.

          The public interest can scarcely be served by
          knowing what the risk is to individual patients, at the time of commissioning.

          I might say that the General practice, in my experience has very little privacy about it;
          that the auxiliary nurse is, in fact, a news stringer from the local (stringer/newsinformation agency), doing the
          work of both nurse and news stringer on her rounds, assisting the regular nurse.

          A private medical general practice does not allow such possibilities, and IS entirely private. That is one very good reason for people going private. The 10%/90% split between private/public medicine is a very useful one.

          http://www.dh.gov.uk/en/MediaCentre/Pressreleases/DH_122399

          At the moment this is the point where the Risk register is concentrated; some local services have been commissioned; others have not.

          Some people will always be medical technology challenged, for whom the arrival of X-rays at the GP’s desk in hours rather than days will be an act of white magic, and not computer science, about which they know nothing.

          If the system works faster than their brain can, then they may be very ill used by it.

  9. MilesJSD
    11/12/2011 at 4:54 am

    I see my contribution has been removed;l

    so please be advise that it, and other denied or suppressed material may be sighted via non-profit citizens websites
    http://www.minorityofone.net ;
    http://www.lifefresh.co.uk;
    or sometimes via
    http://75l25w.com or
    http://needshowsrightgswrongs.info
    all of which are being developed towards the advancement of both Individual Human Development and a Sustainworthy-Democracy.

  10. Twm O'r Nant
    14/12/2011 at 8:52 am

    The Risk Register comes from the OGC (Office for Government Commerce)
    http://en.wikipedia.org/wiki/PRINCE2
    That is the Wiki explanation of the 2002 edition.
    http://www.prince2.com/prince2-2009.asp
    It has been upgraded and well explained on this government commerce website.

    Pathfinder GP local groups are “learning”!

Comments are closed.