The massive project is subject to periodic independent reviews
of progress, called Gateway Reviews, by the Office of Government
Commerce (OGC). An activist and a Member of Parliament used the
Freedom of Information (FOI) Act to request the publication of two
of those reviews, from 2003 and 2004.
The Information Commissioner said that the reviews should be
published, as did the Information Tribunal when the case was
appealed by the OGC. The High Court, though, has said that a new
Tribunal must hear the case again because the Tribunal had made
errors in its previous ruling.
The High Court has not said whether or not the information
should be published, just that the decision must be made again on a
different basis.
The Tribunal's first decision could not stand because it had
been based in part on a report on the confidentiality of the
Gateway Reviews produced by a Parliamentary Select Committee on
Work and Pensions. This, said Mr Justice Stanley Burnton, put the
Tribunal and the judiciary at risk of breaching the ancient right
of Parliamentary privilege.
It is a long established principle that the courts will not pass
judgment on proceedings or decisions of the Houses of Parliament in
order to maintain the separation of powers considered essential for
good government.
It is not permitted for parties in a court action to draw in
evidence from a Select Committee to boost their case because in
order to refute that point the other side in the case must persuade
the court to disagree with the findings of Parliament, which it
cannot do.
In the Gateway Review case it was the Tribunal itself, though,
that introduced the Select Committee's work into proceedings.
"It was the Tribunal that raised the question whether there was
a report of a Parliamentary Select Committee relevant to the
questions of the confidentiality or disclosure of gateway reviews,"
said Mr Justice Burnton. "This created a risk of a breach of
Parliamentary privilege by the Tribunal. More importantly the
Tribunal erred in being influenced by the opinion of the Select
Committee on Work and Pensions."
"If it is wrong for a party to rely on the opinion of a
Parliamentary Committee, it must be equally wrong for the Tribunal
itself to seek to rely on it, since it places the party seeking to
persuade the Tribunal to adopt an opinion different from that of
the Select Committee … [an] unfair position," said the ruling.
"Furthermore, if the Tribunal either rejects or approves the
opinion of the Select Committee it thereby passes judgment on it.
To put the same point differently, in raising the possibility of
its reliance on the opinion of the Select Committee, the Tribunal
potentially made it the subject of submission as to its correctness
and of inference, which would be a breach of Parliamentary
privilege."
"In relying on the opinion of the Select Committee the Tribunal
took into account an illegitimate and irrelevant matter, and for
this reason alone the first decision, and in consequence the second
decision, must be quashed," said Mr Justice Burnton in his
ruling.
The Information Tribunal will now make a new ruling in a new
hearing on the issue.
The requests for the information were from Liberal Democrat MP
Mark Oaten and anti-ID cards activist Mark Dziecielewski.
The Government had argued that it must be able to keep the
reports on the progress of the system secret otherwise civil
servants will not be honest in their assessment of the progress of
the system.
The Information Tribunal had said that it was not comfortable
with allowing a blanket exemption for the reports, and that the FOI
Act was not designed to give such protection.
The Information Commissioner's Office (ICO) argued that the
documents should be disclosed. "[The Commissioner] was not
persuaded that the Gateway Review process would be damaged by the
disclosure of this information," said the ICO at the time of the
Tribunal hearing. "The Commissioner concluded that disclosure is
likely to enhance public debate of issues such as the programme’s
feasibility and how it is managed."
Mr Justice Burnton said in his ruling that he believed that the
reports did not contain the explosive revelations that he felt
campaigners were looking for.
"The controversy concerning identity cards, and the OGC's
objections to disclosure of the gateway reviews relating to the
programme, may have led to speculation that they include
undisclosed information that could be regarded as damaging to the
programme," he said. "If there were a "smoking gun" in the reviews,
the case for disclosure would, on one view, be considerably
strengthened. I have read both reviews. There is, in my view, no
'smoking gun'."
