By Tony Collins
Officials at the Department for Work and Pensions are to pay external lawyers to attend another FOI hearing as part of the department’s efforts to stop four old reports on the Universal Credit programme being published.
A hearing will take place in London on 3 December for the DWP to put its case for a third time that it should be allowed to appeal a ruling of the first tier information tribunal that the four reports be published.
Although the DWP’s lawyers have lost every tribunal decision they have contested in the case, there is no sign the department’s officials will restrict the amount of public money they allocate to stopping publication of the reports.
If lawyers for the DWP continue to lose every judicial decision, officials will always have the option of a ministerial veto.
The DWP’s multiple appeals are arguably a pointless plundering of the public purse for legal costs, because officials have known from the initial FOI requests in 2012 that they would never publish the reports in question.
Despite the efforts of Cabinet Office minister Francis Maude to introduce open government, no central department has agreed to issue reports on the progress or otherwise of its big IT-dependent projects and programmes.
This is the chronology so far in the DWP’s attempts to stop the four Universal Credit reports being published:
March 2012 – I make a freedom of information request for a Project Assessment Review of the Universal Credit programme, as carried out by the Cabinet Office’s Major Projects Authority. The PAR would have given early indications of the problems the IT teams faced while the DWP’s ministers and press office were issuing public statements that the programme was on time and on budget.
April 2012 – John Slater, a programme and project management professional, makes an FOI request for the Universal Credit programme Risk Register, which gives a traffic light status of the risks most likely to occur and who should take ownership of them. He also requests an Issues Register which details the problems and failures that have occurred and why, how they can be managed, and how their effect on the programme can be minimised or eliminated. The Milestone Schedule he requests would show whether milestones have been met or changed.
May 2012 – DWP minister Lord Freud personally signs refusals to release any of the four reports. John Slater and I request internal reviews of the refusals. The DWP rejects our appeals so we complain to the Information Commissioner.
June 2013 – The Information Commissioner orders that the DWP publish three of the reports but not the Risk Register. The DWP appeals the ruling. John Slater appeals the Commissioner’s decision to keep the Risk Register confidential.
Jan 2014 – A two-day appeal hearing is held in Leicester, before the First-Tier Information Tribunal. Slater appears at the hearing, as do representatives of the Information Commissioner and the DWP.
March 2014 – Judge David Farrer and his First-Tier tribunal members rule that the DWP publish all four reports. The DWP discovers that the version of the PAR [Project Assessment Review] it supplied to the Tribunal is not the final version that has been requested. It is evidently a draft. “How the mistake occurred is not entirely clear to us,” says Judge Farrer. He suggests that the DWP might not have read the PAR closely and has refused to publish it on principle. Under the FOI every request is supposed to be considered on its merits.
“Whilst the differences [between the draft and final versions] related almost entirely to the format, it did raise questions as to how far the DWP had scrutinised the particular PAR requested, as distinct from forming a generic judgement as to whether PARs should be disclosed,” says the judge.
He also comes close to saying the DWP had not been telling the truth about the state of Universal Credit programme. He and his tribunal members have read the four reports in question. He says the Tribunal had been “struck by the sharp contrast” between “the unfailing confidence and optimism of a series of press releases by the DWP or ministerial statements as to the progress of the Universal Credit programme” and some of the criticisms and controversy the programme was attracting at the time of the public statements.
April 2014 – The DWP seeks Judge’s Farrer’s permission to appeal his ruling. Unexpectedly the judge refuses the DWP permission. The DWP’s lawyers had argued that the Tribunal had “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 DWP said the Tribunal’s misunderstanding about the chilling effect “amounted to an error in law” and was “perverse”. Judge Farrer said he had not misunderstood the DWP’s claims of a chilling effect.
May 2014 – The DWP’s lawyers ask the Upper Tribunal for permission to appeal the ruling of the First Tier Tribunal that the four reports be published. The DWP’s arguments are long and complex – but they are, arguably, useful only to the bank account of lawyers because the DWP will not publish the four reports whatever the outcome of its appeals.
June 2014 – The judge of the Upper Tribunal (Nicholas Wikeley) refuses to give the DWP permission to appeal the ruling of the First-Tier Tribunal. On the DWP’s claim that the First-Tier Tribunal has misunderstood the chilling effect, the Upper Tribunal’s ruling says,
“This [the chilling effect] is a well known concept, and I can see no support for the argument that the Tribunal misunderstood its meaning …”
Having lost the case, the DWP requests permission from the Upper Tribunal for another appeal hearing so it can put its arguments in person, not just in writing. The Tribunal agrees.
August 2014 – The Upper Tribunal sets a date of 3 December 2014 in London for a hearing to decide whether the DWP can appeal the First-Tier Tribunal’s ruling that the four reports be published. The DWP’s lawyers have had the case open now for more than a year.
If the DWP’s ministers and officials were spending their own money on legal costs, doubtless the four reports would have been published within days of our FOI requests; and their publication would have made no difference except to make officials a little less confident that they could, in future, cover up serious problems on their big IT-dependent projects and programmes.
The irony of the whole case is that the DWP argues that it needs to keep the reports confidential because candid assessments of a programme’s problems are essential tools for good project management. But the DWP has presided over a succession of failed IT-dependent programmes.
Clearly the routine suppression of reports on its problems has not helped the DWP’s project management. The National Audit Office’s report on Universal Credit could hardly have been more negative about the DWP’s management of the Universal Credit programme.
Isn’t it time the DWP did things differently and published reports on the progress or otherwise of its biggest programmes? With improved public scrutiny the department may then start to have a succession of successes. What a surprise that would be, to the department’s officials at least.