A request to publish childhood leukaemia figures has mushroomed into a landmark court case
by Paul Hutcheon
Scottish Political Editor

THE UK government has made an 11th-hour intervention in the long-running dispute between the Scottish NHS and anti-nuclear campaigners over the release of childhood leukaemia figures.

Justice secretary Jack Straw's department was given leave to intervene earlier this month when the landmark case reached the House of Lords.

Whitehall said the case raised "important" issues and is challenging parts of the original decision to publish the statistics.

The saga can be traced to a freedom of information request lodged in January 2005 by the Scottish Greens for a breakdown of leukaemia statistics for under-15s in Dumfries and Galloway.

Michael Collie, the applicant, wanted to know whether there were cancer clusters next to the Chapelcross power station and the Dundrennan military firing range.

However, the Common Services Agency (CSA), a Scottish NHS body, blocked release on the grounds of patient confidentiality.

Kevin Dunion, the Scottish information commissioner, then ruled in favour of the applicant by backing publication of the data. He said the CSA could prevent identification of patients by using a method of statistical makeover called "Barnardisation".

A subsequent appeal by the CSA in the court of session centred around the public body's view that Barnardisation fell outwith the scope of Collie's request.

However, the judges rejected the appeal, with Lord Marnoch saying the FoI legislation "should be construed in as liberal a manner as possible I do not see why the commissioner should not be accorded the widest discretion in deciding the form and type of information which should be released."

This decision prompted the NHS body to exercise its final roll of the dice - a legal challenge to the House of Lords.

The CSA's appeal, which was heard in the Lords last month, was marked by the presence of the UK justice department.

Whitehall officials are unhappy about the Scottish information commissioner's decision and were granted permission to intervene. It means the weight of the Scottish government, to whom the CSA is ultimately accountable, and the UK government is behind the appeal.

The CSA's numerous appeals had, by August last year, cost the taxpayer £45,000 in legal fees. The NHS also estimates the House of Lords appeal will cost the public £206,000.

The Lords' ruling is expected within weeks.

A Ministry of Justice (MoJ) spokesman said: "The MoJ sought and was granted permission to intervene in the CSA's appeal, which was heard before the House of Lords on April 1 and 2, 2008.

"The case raises important questions about freedom of information and data protection. The MoJ therefore felt it was important that the UK government's views on these matters were represented.

"It would not be appropriate to comment further on the case prior to the House of Lords handing down its judgment."

A spokesman for the Scottish information commissioner said: "MoJ was given leave by the House of Lords to intervene. In its submissions the MoJ disagreed with certain aspects of the Commissioner's decision, such as whether the information was actually held by the CSA and whether individuals could be identified from the data."

Chris Ballance, the former Green MSP who has taken an interest in the case, said: "The Scottish government has powers over the statistics agency and has the power to make it hand over the figures. Both governments are now united in making sure local communities can't access local health statistics. The figures should be handed over."