By Tony Collins
External lawyers acting for the Department for Work and Pensions are due to appear before an FOI Upper Tribunal judge in London today to argue why four reports on Universal Credit should not be published.
It’s the latest step in a costly legal battle that has lasted two years so far.
A first-tier FOI tribunal judge in 2014 ordered the four reports to be published. The DWP asked for permission to appeal that decision and lost its case. The DWP then asked an Upper Tribunal for permission to appeal and lost that case as well.
Then it asked a different Upper Tribunal judge for permission to appeal . As a result, a 1 day hearing is taking place today.
The case takes in evidence from the DWP, the Information Commissioner, John Slater who requested 3 of the reports in question and me. Slater requested in 2012 a Universal Credit risks register, milestone schedule and issues register (which set out problems that had materialised with the Universal Credit programme). I requested a project assessment review carried out in 2011 on the Universal Credit programme by the Cabinet Office’s Major Projects Authority.
The DWP has refused to publish the four reports – and millions of pounds worth of other similar reports.
Today the DWP will argue that the judge in an earlier Upper FOI Tribunal did not fully consider the “chilling effect” that disclosure of the reports would have on the behaviours of civil servants or consultants who helped to write the reports in question.
In essence the DWP’s lawyers are asking the judge to accept the arguments put forward against disclosure by Sarah Cox, the DWP’s main witness in the case. Cox is a former programme assurance director for Universal Credit.
Cox submitted 49 pages of evidence – plus secret evidence during a closed hearing – on why the UC reports should not be published. She said that civil servants must be able to think the unthinkable and record the outcome of these thoughts without hesitation or fear of disclosure.
If contributors feared the reports would be routinely disclosed the documents could become “bland records” prepared with half an eye to how they would be received in the public domain.
She said the danger of damage to the public interest cannot be overstated.
Disclosure could adversely affect management of the Universal Credit programme – and “failure of proper programme management may be catastrophic”.
Emphasising the importance of effective management of risk, she referred to the banking system prior to the credit crunch and the stability of the Bank of England in that period.
“Inappropriate or premature disclosure of the information in the risk registers or the issues registers could lead to those failures occurring in government risk management with broader parallels for other project management tools.”
She then referred to “disaster myopia” – a phenomenon she said was well established in cognitive psychology. It referred to “an underestimation of the likelihood of low frequency but high risk damage risks”.
She added: “This can result in a lack of appropriate mitigating actions, increasing the likelihood of the risk becoming an issue. In this case fear of disclosure and misinterpretation can exacerbate this myopia, leading to the toning down of the direct and forceful language used to describe risks, or worse, risks not being identified at all”.
If civil servants or consultants writing reports on projects were to downplay the risks because of a fear of disclosure, problems may be overlooked, solutions not found, or not found promptly. “Such an outcome would be seriously detrimental to the delivery of major projects.”
Cox’s evidence could appear to some to suggest the DWP was preoccupied with its image, and the image of the Universal Credit programme, in the media, and among MPs and the public. She said routine disclosure of such reports as those in question “will distract civil servants from their tasks at a crucial point in the process of programme management.
“Instead of concentrating on implementing the changes, they will be required to address stakeholder, press or wider public concerns which have been provoked by the premature disclosure of material.”
It would be unhelpful if “attention is focused on clarifying positions with stakeholders and addressing the concerns of media, opposition and interest groups in order to correct the often misleading impression created by premature disclosure”.
This issue is “magnified in a programme with as many delivery partners as Universal Credit, covering both central and local government, with implications for all territories in the UK”.
That is because of the “implications of issues for different partners are often slightly different, so that each partner may need to be given a slightly different, and tailored, response”.
This concern should not be understated, she said.
“From my experience of high profile matters which emerge with little warning, I can say that ministers and senior officials are likely to be forced to clear their diaries, cancelling planned meetings, events and other important engagements, to attend rapidly-convened meetings to discuss the handling of the premature disclosure.
“Officials in the relevant policy areas (and lawyers as appropriate) would need to set aside other essential and pressing work to prepare briefings on the likely impact of disclosure and options for next steps. ‘Lines to take’ and a stakeholder and media-handling strategy would need to be discussed, agreed and signed off by ministers.
“Ministers could also be called to respond to urgent questions tabled in Parliament, especially where the disclosure is made in respect of a high-profile policy area. The media might press for interviews with ministers and/or senior officials, which require careful preparation…”
But, as the Information Commissioner has pointed out, disclosure of the documents under FOI is not the same as a leak to the media.
And the reports in question are now four years old and so massive media interest is unlikely. Any media interest could be managed by DWP press officers without distracting project managers.
Cox said disclosure could harm rather than assist public debate.
“Material that requires civil servants to think the unthinkable, or to consider unusual or highly unlikely events, using intentionally vivid and forceful language, at a single point in time, potentially pre-dating attempts to mitigate the position could easily distort the public perception of the real or likely situation and encourage sensationalist rather than responsible and balanced reporting.”
She said that officials may have to release further information to counteract any misunderstandings (from a misreading of the disclosed reports). But the “world of media” may ignore this further information.
Lawyers for the Information Commissioner, in their submission to today’s hearing, will argue that an earlier tribunal had not found any existence of a “chilling effect” in this case. The tribunal had not been persuaded by what the DWP had said.
The earlier tribunal had not dismissed all of the DWP’s concerns as entirely without merit. It accepted that disclosure of the documents in question “may not be a painless process for the DWP” and that there “may be some prejudice to the conduct of government of one or more of the kinds asserted by the DWP”. The tribunal was simply unpersuaded by the extent of those prejudices.
The Commissioner’s lawyers will say the earlier tribunal gave due weight to the evidence of Ms Cox but it was not obliged to agree with her.
There was no observable chilling effect from disclosures in the past where a chilling effect had been envisaged. The DWP had not provided any evidence that a chilling effect existed.
Indeed a Starting Gate Review on the Universal Credit project had been published (by Campaign4Change) after the DWP refused to release the document under FOI. The DWP had refused to publish the Starting Gate Review because of the chilling effect it would have on the contributors to such reports.
But there was no chilling effect in consequence of publication of the Starting Gate review, say the Information Commissioner’s lawyers.
The incident “illustrates that it is perfectly within the bounds of reason to be sceptical about the DWP’s assertions about the chilling effect and the like,” says the Information Commissioner’s submission to today’s hearing.
On Ms Cox’s point that disclosure of the reports in question would change behaviours of civil servants and consultants compiling the documents, the earlier tribunal had concluded that the public was entitled to expect from senior officials – and no doubt generally gets – a large measure of courage, frankness and independence in their assessments of risk and provision of advice.
The Information Commissioner’s lawyers will today ask the judge to dismiss the DWP’s appeal.
The DWP’s evidence suggests that the reports in question today are critical to the effective delivery of Universal Credit. The reality is that excessive secrecy can make bureaucracies complacent and, in the the DWP’s case, somewhat chaotic.
When Campaign4Change asked the DWP under FOI for two Universal Credit reports – an end to end technical review carried out by IBM at a cost of £49,240 and a “delivery model assessment phases one and two” carried by McKinsey and Partners at a cost of £350,000 – the DWP mistakenly denied that the reports existed.
When we provided evidence the reports did exist the DWP said eventually that it had found them. The DWP said in essence that the documents had been held so securely nobody knew until searching for them that they existed.
So much for the DWP’s argument that such reports are critical to the effective management of major projects.
And when Campaign4Change asked the DWP, under FOI, to supply a project assessment review report on the Universal Credit programme, officials mistakenly supplied an incorrect version of the report (a draft) to an FOI tribunal. Officials later apologised for their mistake.
National Audit Office reports on Universal Credit do little to portray the DWP as a professional, competent and well-managed organisation.
Which all suggests that excessive secrecy within the DWP has made officials complacent and disorganised.
Continued excessive secrecy within the department could reinforce a suspicion, justified or not, that the department may not be in a strong position to run a programme as large and complex as Universal Credit.