Judge says ministerial statement about ID Card gateway reviews and FOI was "wrong"

A judge has criticised as “wrong” a government statement made to Parliament on its decision not to publish two gateway reviews – independent assessments – of the ID Cards scheme.

Stanley Burnton, a judge hearing a case in the High Court on gateway reviews, has criticised a Parliamentary reply in 2005 by Paul Boateng, then Chief Secretary of the Treasury, who was later appointed the government’s High Commissioner in South Africa. Parliamentary answers are usually written for ministers by senior civil servants.

Boateng told Liberal Democrat MP Mark Oaten on 16 March 2005 that the red, green or amber “traffic light status” of two Gateway Zero reviews on the ID Cards scheme in June 2003 and January 2004 were exempt from disclosure under the Freedom of Information Act. The reviews were carried out by the Treasury’s Office of Government Commerce.

The judge said that an Information Tribunal had found that the two gateway reviews on ID Cards should be published – which came into conflict with Boateng’s statement that they were exempt from publication.

The judge said: “… obviously, the effect of the Tribunal’s decision is that the Parliamentary answer given by Mr Boateng, that the gateway reviews were exempt from disclosure under the [Freedom of Information] Act, was wrong.”

Burnton pointed out that it is for the judiciary to rule on whether gateway reviews were exempt from disclosure. He said that if a minister “answers a Parliamentary question by making a statement as to the result of the application of FOIA [the Freedom of Information Act], he creates the potential for a judicial ruling to the contrary effect, as indeed happened in this case”.

He added: “It is, I think, undesirable for the potentiality for such conflicts to be created.”

There was, said the judge, a need for the courts and MPs to have a mutual respect for each other’s functions.

The case in the High Court was over an appeal by the Office of Government Commerce of a ruling by the Information Tribunal that the two gateway reviews on ID Cards be published.

The judge quashed the Tribunal’s ruling largely on the basis that the Information Tribunal had erred by relying too much in its judgment on a report by Parliament’s Work and Pensions committee whose members had favoured the publication of gateway reviews.

Under the 1689 Bill of Rights, the courts are barred, in certain circumstances, from questioning Parliamentary proceedings. So the Office of Government Commerce was unable in the High Court to question the report of the Work and Pensions committee without questioning Parliamentary proceedings. This could have breached Article 1X of the Bill of Rights.

The OGC put forward several specific reasons why the judge should quash the decision of the Tribunal. The judge rejected most of these. But the judge accepted an argument put by the legal representative of the office of the Speaker of the House of Commons that the Tribunal’s ruling breached the Bill of Rights.

A new hearing of the Information Tribunal – by a different panel – will now be held into whether the two gateway reviews on ID Cards should be published. By the time any ruling is made the reviews are likely to be at least five years old.


This is the question on ID Cards gateway reviews asked by Mark Oaten MP, and the answer by the minister Paul Boating which the High Court judge Stanley Burnton criticised.

Mark Oaten: “To ask the Chancellor of the Exchequer what traffic light status was awarded to the identity cards scheme by the Office of Government Commerce at Gateway 1 stage?”

Paul Boateng: “The ID Cards programme has not yet undergone a Gate 1 Review. It has, however, undergone two OGC Gate 0 Reviews, in June 2003 and January 2004 respectively. The traffic light status awarded by these reviews is exempt from disclosure under the Freedom of Information Act 2000 as disclosure would be likely to prejudice both the ability of OGC to examine the effectiveness, efficiency and economy with which other Government Departments exercise their functions and also the formulation and development of Government policy. I believe the public interest in disclosure of such information is outweighed by the public interest in non-disclosure.”


The judgment in full – The Office of Government Commerce V The Information Commssioner (also involving HM Attorney General on behalf of the Speaker of the House of Commons)

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