By Tony Collins
An upper tribunal judge this week refused consent for the Department of Work and Pensions to appeal a ruling that four reports on the Universal Credit programme be published.
It’s the third successive legal ruling to have gone against the DWP as its lawyers try to stop the reports being released.
The DWP is likely to request further consideration of its appeal. History suggests it will devote the necessary legal time and funding to stop the reports being published.
In March 2014, the first-tier information tribunal rejected the DWP’s claim that disclosure of the four reports would inhibit the candour and boldness of civil servants who contributed to them – the so-called chilling effect.
The DWP sought the first-tier tribunal’s leave to appeal the ruling, describing it as “perverse”. External lawyers for the DWP said the tribunal had wholly misunderstood what is meant by a “chilling effect”, how it is manifested and how its existence can be proved.
They claimed the misunderstanding and the perverse decision were “errors of law”. For the first-tier tribunal’s finding to go to appeal to the “upper tribunal”, the DWP would have needed to prove “errors in law” in the findings of the first-tier tribunal.
The judge in that case, David Farrer QC, found that there were no errors in law in his ruling and he refused the DWP leave to appeal. The DWP then asked the upper tribunal to overrule Farrer’s decision – and now the DWP has lost again.
The upper tribunal’s judge Nicholas Wikeley says in his ruling this week:
“This [chilling effect] is a well known concept, and I can see no support for the argument that the [first-tier] Tribunal misunderstood its meaning.
“The Tribunal was surely saying that whilst it heard Ms Cox’s claim that disclosure would have a chilling effect, neither she nor the Department provided any persuasive evidence to that effect.” [Sarah Cox is a senior DWP executive on the Universal Credit programme.]
“Indeed, the Tribunal noted, as it was entitled to, that Ms Cox did not suggest that frank discussion had been inhibited in any way by a third party’s revelation of the ‘Starting Gate Review’.”
In conclusion the judge says:
“I therefore refuse permission [for the DWP] to appeal to the Upper Tribunal.”
The DWP’s lawyers asked the upper tribunal for a stay, or suspension, of the first-tier tribunal’s ruling that the four reports be published. This the judge granted temporarily. The lawyers also asked for a private hearing, which the judge did not decide on.
DWP too secretive?
John Slater, who has 25 years experience working in IT and programme and project management, requested three of the four reports in question under the FOI Act in 2012. He asked for the UC issues register, high-level milestone schedule and risk register. Also in 2012 I requested a UC project assessment review by the Cabinet Office’s Major Projects Authority.
The Information Commissioner ruled that the DWP should publish three of the reports but not the Risks Register. In March 2014 the first-tier information tribunal ruled that all four reports should be published.
Excluding these four, the DWP has had 19 separate reports on the progress or otherwise of the Universal Credit programme and has not published any of them.
Work and Pensions minister Lord Freud, told the House of Lords, in a debate on Universal Credit this week:
“I hope we are as transparent as we can be.”
What happens now?
Slater says that as the DWP has been refused permission to appeal it will probably ask for an oral hearing before the upper tribunal. This would mean that the DWP would get a second chance to gets its point across directly in front of the Upper Tribunal rather than just on paper, as it has just tried, says Slater. There is no guarantee that the DWP would be granted an oral hearing.
If all was going well with the DWP’s largest projects its lawyers could argue, with some credibility, that the “safe space” civil servants need to produce reports on the progress or otherwise of major schemes is having a useful effect.
In fact the DWP has, with a small number of notable exceptions such as Pension Credit, presided over a series of major IT-based projects that have failed to meet expectations or business objectives, from “Camelot” in the 1980s to “Operational Strategy” in the 1990s. Universal Credit is arguably the latest project disaster, to judge from the National Audit Office’s 2013 report on the scheme.
The”safe space” the DWP covets doesn’t appear to work. Perhaps it’s a lack of firm challenge, external scrutiny and transparency that are having a chilling effect on the department.