The government is to hire internal and external legal
experts, including a Queen's counsel, to try to block the
publication of Gateway reviews of its ID cards programme - a scheme
which ministers affirmed last week would go ahead at a cost of
£5.4bn over 10 years.
The Office of Government Commerce (OGC), which is part of HM
Treasury, will use the Treasury Solicitor's Department, external
legal experts and a QC to fight a decision by the information
commissioner, Richard Thomas, that two Gateway reviews on ID cards
can be published.
Gateway reviews are independent assessments of projects and
programmes at various stages in their lifecycle. They are mandatory
on high risk IT-related projects, including the ID cards
programme.
The Gateway scheme was instigated and is run by the OGC, which
has refused all requests under the Freedom of Information Act for
the results of the reviews to be published.
The OGC refused initially to provide copies of the Gateway
reviews to even the information commissioner. On 11 August 2005,
representatives of the commissioner had to make a personal visit to
the OGC's offices to see the ID card Gateway reviews.
Only after the commissioner wrote to the OGC asking for a hard
copy of the reviews - which were needed to reach a determination
under the Freedom of Information Act - and only after he gave the
OGC unspecified assurances, was information supplied.
A year later, in August 2006, the information commissioner ruled
under the Freedom of Information Act that the OGC should publish
two Gateway "zero" reviews on the ID cards scheme.
Gateway zero looks at whether the government has the right
skills to manage the programme, whether all the major risks have
been identified, whether there is a continuing need for the new
systems and whether all the expectations for the programme are
realistic.
If the OGC's chief executive, John Oughton, had accepted the
decision of the information commissioner, he could have opened the
way for Gateway reviews to be published on other risky IT projects,
such as the NHS's £12.4bn National Programme for IT.
MPs and others would then be able to see the praise, concerns
and recommendations of Gateway reviewers, and whether they had
given programmes red, amber or green lights.
But the government appears determined to use all legitimate
means to thwart the will of the information commissioner.
Treasury ministers have given approval for the case to be fought
by an external QC, whose costs could be between £20,000 and
£50,000. Further fees will be paid to external legal advisers and
the OGC has told Computer Weekly it also plans to use the services
of the Treasury Solicitor's Department.
The government holds all the aces. The appeal case will be heard
by an information tribunal whose chairman, or deputy chairman, and
two lay members are appointed by the government. Even if the
tribunal backs the information commissioner and rules that Gateway
reviews should be published, ministers have the power in certain
circumstances to veto the tribunal's decision.
The government also controls the flow of money to the OGC and
the information commissioner. With a restricted budget and a
backlog of work, the information commissioner is unlikely to be
able to spare the money to field a team of lawyers or a QC at the
tribunal. The OGC, on the other hand, appears to have all the legal
funding it needs, with ministers viewing the OGC's appeal against
the commissioner's decision as a cross-government action.
The apparent inequality is compounded by the budget for the
information commissioner's office being set by the Department for
Constitutional Affairs - which has published on its website policy
guidelines for departments on how they can, and in some cases
should, refuse requests for Gateway reviews to be published.
If the government gets its way, and Gateway reviews remain
secret, parliament will continue to have no dependable means of
receiving the information it needs to scrutinise adequately
questions of value for money on major IT contracts.
Gateway reviews to date
Gateway reviews so far on ID cards. None of the results of these
reviews has been published:
- Gateway zero (strategic assessment) Completed 30 January
2004
- Gateway one (business justification) Completed 18 July
2005
- Gateway zero (strategic assessment) Completed 14 January
2006
- Gateway two (procurement strategy) Completed 11 April
2006
OGC's reasons for refusing to publish gateway
reviews
The Office of Government Commerce's arguments in favour of
keeping Gateway reviews secret:
- The reporting of reviews could be taken out of context and
create an inaccurate picture, which would require additional
resources to correct
- Disclosure would inhibit the candour and frankness of
officials
- Lack of candour may reduce the likelihood of adverse
recommendations, which would harm the public interest
- The risk of disclosure may result in more cautiously worded
draft review documents, which would lead to delays in completion of
the reports or dilution of their substance
In his response, information commissioner Richard Thomas said
that ID cards would have significant impact on the lives of
individuals and their relationship with the state. He ruled that
allowing the public an opportunity to better understand the
development of the ID card programme outweighed the arguments put
forward by the OGC.
He added that the reports "do not contain information which
would cause participants to be less willing to contribute openly
and fully in future Gateway reviews".
Should there be evidence of officials being less than candid,
"The organisations involved must take the necessary measures to
ensure that their staff continue to deliver the quality of advice
that they are expected to provide as part of their official
duties," the commissioner said.