By Tony Collins
Yesterday the Department for Work and Pensions, via Andrew Robertson, a lawyer in the Treasury Solicitor’s Department, issued the grounds for its appeal against an Information Tribunal ruling that four reports on Universal Credit be released.
The four reports in question are:
- A project assessment review on the state of the project in November 2011, as assessed by the Cabinet Office’s Major Projects Authority.
- A risk register of possible risks to the development or eventual operation of UC as perceived by those involved.
- An issues register of problems that have materialised, why and how they can be minimised or eliminated.
- A milestone schedule of progress and times by which activities should be completed.
The DWP keeps losing appeals to stop the reports being published– but public money being no object when it comes to justifying departmental secrecy, it keeps spending on appeals. The latest appeal is to the “Upper Tribunal”. A decision on whether the appeal can go to the Upper Tribunal will come shortly from the “First-tier” tribunal.
The DWP says its main grounds for appeal is that the Information tribunal “wholly misunderstood the nature and/or manifestation of any ‘chilling effect’. [The chilling effect suggests that public servants will not tell the whole truth in project reviews if they know the reports will be published. The counter argument is that it is the job and duty of public servants to tell the truth, which they are more likely to do if the reports are published and they could be held accountable if it transpires later they had not told the whole truth.]
The DWP said the Tribunal’s misunderstanding about the chilling effect “amounted to an error in law” and was “perverse”.
The DWP’s appeal document is here: Application for Permission to Appeal & Grounds of Appeal 16.04.14 (as fi…
The DWP’s appeal document shows the ease with which its lawyers could credibly argue – with an entirely straight face – that day is night, and night is day, on the basis that daylight in one part of the world always signifies darkness in another part of the world.
The DWP’s lawyers could also credibly argue that black is white, and white is black, on the basis that colour is simply a perception based on the light reflected back to our eyes and that if an object can reflect back all the light we see it is white, and black will be perceived only superficially since it is necessary to doubt everything when assessing the world from a fresh perspective, clear of any preconceived notions.
It is in this Orwell-parodying vein that the DWP’s lawyers argue that four Universal Credit reports need to be kept secret. Below are 2 extracts from the DWP’s appeal document. Anyone who understands what either of these paragraphs means deserves a prominent place in the DWP legal team. Here’s a clue. Having read the paragraphs below three times I think they’re saying that it is difficult to prove whether a leaked document has had a chilling effect.
Says the DWP appeal:
“Any argument as to the ‘chilling effect’ of disclosure is necessarily speculative, because it makes assumptions about the future effect of an event that has not yet occurred (i.e. the future effect of disclosure of particular information). Any argument as to the ‘chilling effect’ of disclosure in the past of any ‘chilling effect’ is likely to be the assertion of persons whose experience in particular working environments has enabled them to assess and evaluate how candour and frankness may alter, or may have altered, in the light of premature disclosure of information…”
Here’s another excruciating extract from the DWP’s appeal document:
“The Tribunal’s assumption that it would be ‘quite easy to assemble’ a ‘before’ and ‘after’ documentary comparison itself exemplifies its erroneous understanding of how a ‘chilling effect’ can be proved. Far from being easy, it would in the majority of cases be impossible to demonstrate that a particular type of document had changed fundamentally as a result of disclosure. That is because the likely effect of disclosure will very probably not be a change in the form in which a document (such as a risk register) is produced. It will rather be a change in the substantive content of the register, as a result of a conscious or subconscious decrease in the candour of those contributing to it. But it will equally be impossible to show what those contributors might have said, had it not been for disclosure: because they will not, in fact, have said it.”
Jonathan Swift, in perhaps the best satirical book of all time, Gulliver’s Travels, described lawyers as a society of men “bred up from their youth in the art of proving by words multiplied for the purpose, that white is black, and black is white, according as they are paid”.
It’s not that the DWP’s lawyers lie. They don’t need to. This latest appeal is a legal nicety, a way of stringing things out, a display of conformance with the FOI game. Nothing will convince the DWP that it should publish the UC reports in question. Nothing will convince the DWP that it should publish any of its reports on any of its major IT-related projects or programmes.
If they need to, Iain Duncan Smith or Lord Freud, his minister, will simply sign a ministerial veto preventing publication of the UC reports under the FOI Act. If there is a legal challenge to the veto, as with the veto on the release of Prince Charles’ letters, IDS will be pleased to have the matter kicked into touch; and while the legalities stretch out over years the UC reports will continue to moulder in locked DWP cupboards.. Eventually they may be released – when they are so old nobody will care what they say. Or they will have disintegrated ( and no, the DWP doesn’t always keep its most secret reports electronically).
That’s what open government means to the DWP… precisely nothing.