By Tony Collins
At an FOI tribunal next week at Leicester Magistrates Court (Monday, 22 February 2016) a legal team paid for by taxpayers will do their best to convince a judge that three reports on the Universal Credit IT programme must not be published.
It will be the latest hearing in a succession of DWP legal actions to stop a risk register, issues register and a Major Projects Authority project assessment review being published.
Lawyers for the DWP have compiled a series of “bundles” – case folders. The volume of this legal paperwork hints at the mounting costs of the case which dates back three years.
In 2012 IT projects professional John Slater made an FOI request for three Universal Credit reports: the risk register, issues register and milestone schedule. Separately, but around the same time, I requested the project assessment review.
The DWP released the milestone schedule last year after refusing several times to disclose it. The DWP is still refusing to release the other three reports. Hence next week’s hearing in which the Information Commissioner is opposing the DWP’s case to keep the reports confidential.
Although the reports in question have been superseded several times, the DWP is arguing they should not be published because of the “chilling effect”.
It claims that civil servants who write the reports or contribute to them need a “safe space” to be completely candid in their criticisms, without fear that their comments will be misinterpreted or taken out of context by a hostile media.
The Robert Walpole government in the 18th century used similar arguments to ban newspaper reports of debates in the House of Commons.
Concerned that hostile newspapers would misinterpret MPs’ speeches or report negative comments out of context, the House of Commons passed a resolution in April 1738 declaring that it was a “high indignity and a notorious breach of privilege” to report what was said in the Chamber, even when it was in recess (see separate post).
At next week’s hearing the Information Commissioner’s lawyers will argue that although the concerns of the DWP about the chilling effect were reasonable they did not over-ride the strong public interest in publishing the reports.
In their submission to the tribunal, the Information Commissioner’s lawyers emphasise the importance of the public’s ability to scrutinise high-cost, innovative and risky schemes such as the Universal Credit programme.
Had the reports been published when requested (in 2012) it would have enhanced the public’s chances of influencing the DWP’s actions on the programme.
Disclosure would have enabled the public to hold ministers and officials to account “at an appropriate time”, says the Commisioner’s submission.
The National Audit Office did not publish a report on Universal Credit’s early progress until September 2013. Before that DWP ministers and officials were confidently assuring the media, parliament and the public that the UC programme was on time and to budget.
If after the tribunal next week the judge orders disclosure of the reports – which is what happened at a previous “first-tier” FOI tribunal – the DWP will almost certainly appeal. It could be years before the case reaches a final conclusion.
But even if the DWP exhausts all its appeal options, ministers may be able to issue a “veto” to stop disclosure – though that could itself be challenged in the courts.
It’s appropriate that the FOI tribunal is being heard next week in a magistrates court, for the costs of the case so far border on the criminal.
I’ll post a fuller comment tomorrow on the similarities between the DWP’s arguments to the FOI tribunal and the arguments used in the 18th century to try and stop newspaper reporting of parliamentary debates.