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'."