‘Data protection’ is no longer an excuse

It was not about “data protection”; of course it was not.

Although three names have now been revealed, the initial refusal by the Care Quality Commission to name the officials responsible for the mistakes made in investigating fatal clinical errors at Morecambe Bay NHS Trust was the familiar defensive cringe of any badly run public body running for cover.

As Christopher Graham, the Information Commissioner, said: “What appeared to be going on was a sort of general duck-out saying ‘oh, data protection, sorry can’t help you’ – that’s all too common and in this case it certainly looked as if data protection really wasn’t the issue.”

Data protection law, first passed in 1984, is only the latest in a line of unsustainable excuses for public-sector secrecy. Before that it was the concept of ministerial responsibility – the convenient myth that everything that happened in a government department was the responsibility of the elected politician appointed to run it. That absurdity was dispensed with, in theory, as long ago as 1954 after the Crichel Down affair, a tangled scandal over a compulsory purchase of land. Sir David Maxwell Fyfe, the home secretary, said that “where action has been taken by a civil servant of which the minister disapproves and has no prior knowledge”, the minister cannot be held accountable. Nevertheless, the presumption of secrecy and anonymity persisted for decades. The textbook case is that of the collapse of Vehicle and General Insurance Company in 1972, when there was a huge fuss over the naming of the civil servant at the Department of Trade and Industry who had been responsible for oversight of the sector.

Partly, this was a civil service thing. There had been less resistance, for example, to the naming and blaming of officials of the National Coal Board for the 1967 Aberfan disaster, because they were seen as managers of an industry that just happened to be in public ownership. The Care Quality Commission is in the grey fringes of accountability, a public body regulating a public service, where the instincts of the “general duck-out” can all too easily seep deeply into the cracks. As we have reported this week, the organisation suffered from poor leadership and low morale, and in such working environments, as everyone knows, the loudest noise is often that of chairs being knocked over backwards as second-rate bureaucrats seek to evade responsibility. How ironic, when it is responsible for overseeing best practice, which, as everyone now knows, starts with openness and personal accountability.

It is hard to know how much of this is the fault of David Behan, the CQC chief executive who has been in post for less than a year, who sought to hide behind “legal advice” when asked why he would not name the officials responsible for the Morecambe Bay mistakes on BBC2’s Newsnight on Wednesday. But the principles of good public administration are clear. Openness is the first requirement. Lawyers are not popes, and if their advice sounds like an excuse for cowardice, it should be challenged. The best ministers are those who do not always accept legal advice but demand a second opinion, and the same should apply to leaders of any honest and self-critical organisation.

The best leaders in the public sector insist on openness; they welcome honest information about mistakes or poor performance so that their organisations become self-correcting; and they try to ensure that the accountability of named individuals gives those who make brave and good decisions the recognition and support that they deserve.

It is a shame that the CQC had to be dragged so reluctantly to start doing the right thing yesterday. Until the assumptions of openness, self-criticism and continuous improvement are as deeply ingrained in the CQC, all parts of the NHS and indeed all parts of the public sector as those of secrecy and buck-passing have been in the past, mistakes as bad as those in Stafford and Morecambe Bay will go on happening.