How did the 1689 Bill of Rights come to be at the centre of a High Court case last week about Gateway reviews and the ID Cards scheme?
The case was brought on behalf of the government by the Treasury’s Office of Government Commerce, which runs the Gateway review process. It was appealing a decision of the Information Tribunal that two Gateway zero reviews on ID Cards should be published. The 1689 Bill of Rights was cited by the OGC as part of its case that the Information Tribunal was wrong in the way it reached its decision.
Even the office of the Speaker of the House of Commons was represented in the High Court. The arguments put forward by Martin Chamberlain, the Speaker’s representative, had the effect of supporting the government’s appeal. If the case put by the OGC and the office of the Speaker over the 1689 Bill of Rights is accepted by the judge, Mr Justice Stanley Burnton, the Information Tribunal may have to reconsider its finding.
These are the events leading up to the High Court case last week and some of the main points made during the hearing.
The chronology begins with the publication in 2004 of an important report on government IT projects by the House of Commons Work and Pensions Committee. It was at the heart of the government’s appeal. The government’s case, as far as it related to the Bill of Rights, was that the Information Tribunal was wrong to quote extensively from Parliamentary proceeedings – the report of the Work and Pensions Committee – in its ruling that gateway reviews should be published.
July 2004: Work and Pensions Committee publishes a weighty report on government IT projects. It has a section on gateway reviews which quotes evidence from Computer Weekly among others. The committee is generally in favour of gateway reviews being published. It says:
“We are not convinced that the Gateway Review process is so fragile that the current levels of secrecy are necessary… in our view, the Government’s objection to publishing Gateway Reviews is based on an untested assertion that publication would invalidate the review process. Publication of inspections and reviews is a widespread feature of public life nowadays and there is no reason why a major public IT projects costing millions of pounds, should not be subject to the same open scrutiny that applies in other areas of public life. This is especially true when the projects in question have such a long history of poor service. We recommend that the Government should publish Gateway Reviews with appropriate safeguards or failing that to set out how Parliament otherwise can be provided with the level of information it needs in order to scrutinise adequately questions of value for money from major IT contracts.”
Jan 2005: Three days after the Freedom of Information Act comes into full force a request is made for the two stage-zero Gateway reviews on the Identity Cards programme. The reviews had been carried out in June 2002 and January 2004. Gateway zero considers whether:
– the project has firm user and stakeholder support.
– there’s enough money agreed, and people with the right skills, to make a success of the project
– the requisite management structures are in place
Feb 2005: The Office of Government Commerce [OGC] refuses the request. The applicant asks for the decision to be reviewed internally. [The refusal of an FOI request cannot be appealed to the Information Commissioner until there has been an internal review of the refusal decision]
March 2005: Peter Fanning, then Deputy Chief Executive of the OGC, rejects the appeal. The case goes to the Information Commissioner for a decision.
April 2005: The Public Accounts Committee recommends that gateway reviews are published. It says in a report published on 6 April 2005:
“This Committee believes that, to further enhance external scrutiny, there is a strong case for the publication of Gateway review reports, particularly given the repeated failures of public sector IT-enabled projects and programmes in recent years.”
June 2005: The Information Commissioner, Richard Thomas, begins his investigation in whether the two Gateway reviews on ID Cards should be published – but the OGC does not, initially, provide Thomas with a copy of the gateway reviews. The OGC suggests the information could be seen if the Commissioner or his staff visit the OGC’s premises.
August 2005: The Commissioner’s representatives go to the OGC’s offices and a day later have to make a formal request for a hard copy of the gateway reviews, so that they can consider the matter properly. The OGC’s officials have concerns about letting Thomas or his staff see the reviews – but he reassures them.
Nov 2005 The government responds to the recommendation of the Public Accounts Committee that Gateway reviews should be published. It says it does not agree with the routine publication of Gateway reports but claims “it does not operate a blanket exemption for Gateway information”.
July 2006: The Commissioner rules that the two Gateway reviews should be published though the OGC has argued that disclosure would:
– result in reviewers being more careful in writing the final gateway reports, which would delay their completion; or reviewers would water down what they have to say.
– lead to the information in the reports being taken out of context, and the style of form of language in the gateway reports being criticised. The OGC is concerned that the public [or the media] could misinterpret the reviews, or not understand the complete picture, which would require extra resources to correct.
– harm the gateway review process which has been successful and saved large sums across government.
– inhibit the frankness, candour and general co-operation of interviewees for further gateway reviews on the ID Cards scheme. To prove this, the OGC has provided statements from those involved in gateway reviews, which confirm that they would be less willing to co-operate fully with the process if information were likely to be disclosed.
But Thomas rules that civil servants:
– are not at liberty to refuse to co-operate with Gateway reviews
– would contribute in a professional capacity if the reviews were published.
On the question of possible delays in producing the reports, Thomas says that the OGC has not been able to provide any compelling evidence to substantiate its view that disclosure will slow down the Gateway Review process.
And on whether the public may be misled by Gateway reviews Thomas is “not persuaded, having viewed the information [Gateway Review reports on ID Cards] that the disclosure of these two reports would lead to misunderstanding of the identity card issue”.
“Civil servants would be in breach of their duty and would damage their integrity as servants of the Crown should they deliberately withhold relevant information other than the best they believe they can give. It is a matter for the bodies concerned, including the OGC, to ensure that their officials continue to perform their duties according to the required ethical standard …”
Thomas concludes that the public interest in publishing Gateway review reports outweighs the arguments for keeping them confidential.
He outlines the public interest arguments in favour of disclosure:
– it is likely to enhance the public debate of issues such as the feasibility of the ID Cards programme, and how it is being managed. It will also identify risks and practical concerns.
– the ID Cards scheme will have a significant impact on the lives of individuals and their relationship with the state.
– the public should be kept informed as far as possible as to how the ID Cards programme is progressing and what the impact will be on them of the scheme.
“The Commissioner is not persuaded that disclosure …. will damage the Gateway process in the way the OGC has suggested it will.”
He orders the reviews to be disclosed – but the OGC appeals to the Information Tribunal, which is a mini court comprising a chairman and two lay people. John Angel, a qualified lawyer, is chair of the Tribunal.
May 2007: The Information Tribunal rules that the OGC should publish the two Gateway zero reviews on ID Cards. The Tribunal summarises the OGC’s 14 main concerns about reviews being published. The OGC’s argument is that even if one of the 14 events is triggered, all the others would be too, because they are interrelated, with the result there would be “severe harm” to the Gateway process.
Some of the OGC’s 14 concerns are:
– Juniors taking part in Gateway reviews would be reluctant to criticise superiors or others involved in the project; and anyone would be reluctant to be seen to be criticising the department as a whole, the particular project or a minister’s approach to policy or decisions. Ministers who are interviewed about a project may be reluctant to say anything critical about their own policies or decisions.
– Interviewees may refuse to be interviewed at all.
– Reviewers may be less willing to be involved in reviews generally
– Civil servants will not want to become a project’s senior responsible owner because of a fear of adverse publicity
– The private sector would be less willing to be involved in reviews if they feared adverse publicity and this may have a knock-on effect on their interest in working for government
– Senior responsible owners would tend to delay having gateway reviews, to maximize the chance of a “green light” status for their projects.
– Reports would become anodyne if published, drafted in “finessed language” or “civil service-speak”. Issues of sensitivity may be communicated orally instead.
– Departments will take time to negotiate the contents of reports to reduce criticism of the project.
– There would be conflict between the two sides in the review process and a general loss of confidence and enthusiasm.
– There would be resistance to recommendations. Participants would take entrenched lines, defending themselves, rather than embracing the recommendations.
The Tribunal depicted the OGC as an organisation that did not want any Freedom of Information [FOI] disclosure of any Gateway review, regardless of its contents, or the timing, except perhaps after 30 years or a long period time.
Some of the main arguments in favour of disclosing the Gateway reports, as listed by the Information Tribunal:
– The OGC has “overdone” the harm it claims would be caused by disclosure
– Gateway reviews are not the only way the public can scrutinise government IT projects. The National Audit Office and Parliamentary committees sometimes investigate IT projects. But the Tribunal finds that their reports are usually “historical” whereas gateway reviews are “current” and “look forward”.
– The main constraint on frankness is not the prospect of publicity but the concern of a junior employee who may upset a superior. Comments of interviewees to gateway reviewers are not attributed in the report but are “nonetheless most likely to be identified as coming from them by their superiors.” This means that the candour of interviewees in this respect would be completely unaffected by any prospect of FOI disclosure of Gateway reviews.
– OGC’s reviews are likely to work well where the audited organisation has a culture of allowing people to speak freely and without recrimination. They will not work well where there isn’t this culture. Organisations either have that culture or not. If they have it they are not going to lose it overnight merely by the prospect of FOI disclosure. It will be up to management to assure staff that frankness will be valued whether Gateway reviews are to be published or not.
– It’s unlikely that people will simply decline to take part in OGC interviews because they may be disclosed. The Civil Service code requires civil servants to fulfil their duties responsibly. This goes also for commercial partners who have an interest in maintaining a good relationship with public authorities.
– Gateway reviews that are to be published need not be delayed if the ground rules are clear to all: that the review is to be completed within a week; the senior responsible owner is to get a draft on the last day of the review; and the reports must include recommendations and a red, amber of green status. These are non-negotiable.
– Departments cannot be deterred from conducting Gateway reviews because they’re mandatory. If a senior responsible owner deliberately chooses to delay a review or ignore its recommendations this could harm the project and could put the SRO at risk of being criticised by the National Audit Office or the Public Accounts Committee. The prospect of stronger accountability and transparency would operate as an incentive to co-operate with the system rather than withdraw from it.
– On the question of self-censorship, it’s up to the OGC to get across the strong message to reviewers that they should be frank, open and honest because that is in the public interest. If there is publicity that’s something the reviewers will have to be robust about.
– Some major suppliers have already indicated that they would welcome the publication of Gateway reviews.
– If a department doesn’t publish a document because of a fear it will be misrepresented in the press, this general assumption would undermine the whole public policy behind having a freedom of information regime in the first place.
The Tribunal also cites Computer Weekly’s evidence to the Work and Pensions Committee:
“As regards damaging the review process, Tony Collins made the valid point that perhaps the reviewers are too close. He told us: “If Gateway Reviewers believe the quality and rigour of their advice and work would suffer if their reviews were published, we would question whether they are too culturally close to those they are reviewing and therefore perhaps not be sufficiently independent and objective to reach the tough conclusions that Gateway Reviews sometimes demand.”
The Tribunal goes on to question the credibility of the OGC’s claim that each request under the Freedom of Information Act for a Gateway review is treated on its merits.
The Tribunal says the OGC’s public utterances that it will consider each on its own merits is:
“difficult to reconcile with their training of those involved in the Gateway review process, their practice of not having released any Gateway reviews so far and the arguments being put forward in this case”.
The Tribunal adds:
“We cannot understand how the OGC appears to have given such assurances that reports would not be disclosed under the Freedom of Information Act. There has always been [this] possibility…”
In its summing up the Tribunal quotes one the OGC’s witnesses, Andrew Edwards, a former Treasury civil servant who has, since his retirement, led many Gateway reviews. Edwards has said in evidence that he already drafts the reports in a way which recognises they may become public.
“There is always a concern that these reports, like other public documents, may occasionally enter the public domain, for example as a result of leakage. For myself, therefore, I always try to ensure that the reports are drafted diplomatically so that if this did happen there would be no unnecessary political embarrassment and no unnecessary damage to the relationship between Government and officials. The style of the reports is therefore sensitive to that consideration.”
The Tribunal upholds the decision of the Information Commissioner that the Gateway reviews on ID Cards should be published. The OGC appeals again, this time to the High Court.
March 2008: The High Court considers the OGC’s appeal – but it can look at the case only on legal grounds. So the judge can consider how the Information Tribunal might have got it wrong in the way it reached its decision. The hearing is not, in the main, about the decision itself.
The OGC’s lawyer Jonathan Swift criticises the Tribunal’s ruling. Swift argues that the Tribunal has failed to consider adequately that there are other ways the public can scrutinize IT projects. The National Audit Office and Parliamentary committees can investigate programmes and projects. Any member of the public can ask an MP to request the setting up of a Parliamentary investigation into a project. Swift also argues that the Tribunal has failed to analyse adequately the public interest in, and the benefits of, maintaining confidentiality.
But during the hearing the matter of the 1689 Bill of Rights becomes predominant. It is the single issue given the most amount of time in the High Court. Martin Chamberlain, a barrister who represents the Speaker of the House of Commons, has a neutral position in the hearing. But his arguments give weight to the OGC’s appeal. The hearing lasts just over three days and Chamberlain is there for much of the time.
If the judge, Mr Justice Stanley Burnton, accepts Chamberlain’s arguments he may throw out the Tribunal’s ruling on the basis that it would be a breach of Parliamentary Privilege, as granted by the 1689 Bill of Rights, for the High Court to question the Tribunal’s findings.
The OGC’s argument – and Chamberlain’s – is that Article 1X of the Bill of Rights prevents Parliamentary proceedings from being questioned in the courts. So the OGC cannot question in the High Court much of the Tribunal’s ruling, the Tribunal having quoted extensively from the report in 2004 of the Work and Pensions Committee. Chamberlain says that even the cogency of a select committee’s reasoning cannot be questioned by the courts. Whether a committee’s report is incomplete cannot be questioned. Inferring conclusions from a Parliamentary report would be a breach of privilege.
As the High Court cannot challenge the way the Work and Pensions Committee investigated IT projects and reached its conclusion on Gateway reviews, the OGC cannot dispute the main evidence on which the Information Tribunal has relied. On this basis, and the other points it has made, the OGC wants the Tribunal’s ruling overturned.
But Mr Pitt-Payne, for the Information Commissioner, points out that the Information Tribunal’s ruling did not rely on the report of the Work and Pensions committee, though he says that the committee’s findings were relevant to the Tribunal’s deliberations.
The decision of Mr Justice Stanley Burnton is not expected before Easter.