Recently in OGC Gateway Reviews of the Identity Cards Programme Category

The Information Tribunal, re-constituted after the previous one was overruled by the High Court, on the grounds of Parliamentary Privilege, has yet again ruled in favour of the publication of the the by now very out of date, but still important, Office of Government Commerce Gateway Reviews into the early stages of the Home Office's controversial ID cards Programme and centralised biometric database.

Information Tribunal Appeal Number: EA/2006/0068 & EA/2006/0080 Information Commissioner's Ref: FS50070196 & FS50132936 (.pdf)

JUDGMENT

The Tribunal upholds the Decision of the Information Commissioner in his Decision Notice dated 31 July 2006 and orders the disclosure of the two Gateway Reports there set out save that the names of all other parties to the said Reports, both interviewees and reviewers, be redacted and/or deleted, the said disclosure to take place within 28 days of the promulgation of this Decision.

i.e. publication by the 19th March 2009.

If the OGC does not appeal against this Judgment again, thereby wasting even more public money, given the forensic detail in which the legal issues have been examined, multiple times now,, it will be over 4 years since the initial Freedom of Information Act request.

N.B. it is what is not included in these reports, which may prove to be as interesting as what they actually do say.

Thr OGC's claim that they do not operate a blanket ban on disclosure of Gateway Reviews, is rather contradicted by the evidence of their senior witnesses, which showed that not a single Gateway Review had ever been disclosed to the public.

We are still waiting for the Information Tribunal to rule in our favour again, to order the disclosure of the early OGC Gateway Reviews of the Home Office's Identity Cards Programme, over 4 years since we requested them.

The legal cost so far, of over £120,000 is an utter waste of public money.

28 Jan 2009 : Column 505W

Identity Cards: Civil Proceedings

Mr. Maude: To ask the Secretary of State for the Home Department with reference to the answer of 14 July 2008, Official Report, column 145W, on identity cards, what stage the legal case relating to disclosure of Gateway information has reached; how much the Government have spent to date on legal costs for the case; and if she will place in the Library a copy of the Identity Card Gateway Review, redacting commercially sensitive information. [250192]

N.B. it is very unlikely that there is any "commercially sensitive information" in the pre-Stage Zero and Stage Zero Gateway Reviews, which happen well before any actual commercial procurement starts i.e. well before any invitations to tender or any quotations from potential suppliers has even been asked for, and which are reviewed at Gateway Review Stage 2 and later.

What is missing from these Gateway Reviews is at least as interesting (probably an utter lack of appreciation of the technical security and privacy risks, or any idea about the costs of integration with other Government Departmental and Private Sector computer systems) as what they actually might contain.

Angela Eagle: I have been asked to reply.

I refer the hon. Member to the answer I gave him on 12 January 2009, Official Report, columns 508-09W. The tribunal has still not issued its decision.

The legal cost incurred, relating to the disclosure of Gateway information on the Identity Cards programme, is currently £121,000 excluding VAT.

Gateway reports, including the findings and status, are conducted on a confidential basis for senior responsible owners (SRO). We do not, therefore, make this information routinely public.

This cost does not include the time of all of the Information Commissioner,'s Office, Home Office, Department for Constitutional Affairs (now the Ministry of Justice) Office for Government Commerce, HM Treasury, Information Tribunal etc. officials who have been involved in this case.

Note the weasel words at the end of the reply, since it would be illegal for the Government to rule out all such disclosures, even though, that is what in fact has happened in every case so far.

The previous Written Answer details the long drawn out current Information Tribunal process:

The Information Tribunal will have a third attempt at hearing the appeal of the the Office of Government Commerce against the Information Commissioner's Decision to order the full publication of the early Gateway Reviews of the Home Office's wretched Identity Cards Programme next Thursday 27th November 2008:

Information Tribunal Current Cases at: 06/11/2008 (.pdf)

Office of Government Commerce

30-Aug-06 FOI

FOI

FS50070196
FS50132936

Office of Government
Commerce

Part Heard

Further hearing on 27 November at Field House at 10:00am

Field House
15 Bream's Buildings
London
EC4A 1DZ

Field House location map

Our original Freedom of Information Act request for the pre-stage Zero and Stage Zero Gateway Reviews of the Home Office's Identity Cards Programme (documents which were already a year or 18 months old) made on 1st January 2005, which should have been fulfilled, no more than 20 working days later, will have taken at least 1427 days or 3 years, 10 months, 27 days

How many hundreds of thousands of pounds in legal costs will this deliberate prevarication by the bureaucracy have cost the public purse ?

Although they have not yet bothered to write to or email us, to keep us informed, it appears that the Information Tribunal is set to reconsider the Appeal by the Office of Government Commerce against the Decision Notices issues by the Information Commissioner, which demanded full disclosure and publication of the early Stage Zero Gateway Review reports and the simplistic Gateway Review Traffic Light (Red Amber Green) Status, of the controversial Home Office Identity Cards Programme.

A full three day hearing is set for Wednesday 29th October to Friday 31st October 2008 at Procession House, 110 New Bridge Street, London, EC4V 6JL (corner with Ludgate Hill).

See the latest Information Tribunal current cases (.pdf)

  Case Number     EA/2006/0068
  EA/2006/0080 
  Appellant     Office of Government Commerce 
  Date Received     30-Aug-06  
  Type     FOI  
  ICO Decision Reference     FS50070196
  FS50132936  
  Date ICO Reply Due  
  (Date Received + 21 days)  
 
  Public Authority Involved     Office of Government Commerce    
  Current Status     Full Hearing Booked  
  Hearing Details     Full hearing booked on 29, 30, 31 October 2008  
  at Procession House  

Another full three day hearing, presumably with barristers on both sides. How much public money has been wasted on suppressing our legal rights in this case ?

This new Tribunal has been forced to sit again, after the Government's Appeal to the High Court, and the scandalous intervention of the Speaker of the House of Commons to help suppress our rights under the Freedom of Information Act, by pretending that the free speech of MPs within the Palace of Westminster, under the Bill of Rights 1689, was somehow under threat, because a publicly published Select Committee Report was mentioned, but not criticised in the original Information Tribunal's Decision.

Instead of a full disclosure within the statutory "20 working days" laid down by law in the Freedom of Information Act 2000, this process now looks set to have taken at least 1400 days i.e. 3 years and 10 months .

Bad news for Transparency, Open Government,and Freedom of Information - the OGC has won their appeal in the High Court against the Information Tribunal, over the disclosure of the early Gateway Reviews of the Home Office's Identity Cards Programme.

Having decided that Parliamentary Privilege was engaged, because the Information Tribunal had made a reference to a House of Commons Select Committee Report, referring to the desirability of publishing OGC Gateway Reviews, Mr. Justice Stanley Burnton then actually rejected all the other OGC grounds for appeal.

There was a supplementary judgment about releasing or censoring the the Names of the Civil Servants involved in the Gateway Reviews, which he found against the Information tribunal, but which was irrelevant, once he decided to uphold the OG and the Speaker of the Commons appeal on the first point.

Neutral Citation Number: [2008] EWHC 737 (Admin)
Case Nos: CO/5491/2007 CO/4438/2007

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
11/04/2008

B e f o r e :

MR JUSTICE STANLEY BURNTON
____________________
Between:
OFFICE OF GOVERNMENT COMMERCE
Appellant
- and -

INFORMATION COMMISSIONER
Respondent
- and -

HER MAJESTY'S ATTORNEY GENERAL on behalf of THE SPEAKER OF THE HOUSE OF COMMONS

Intervener

____________________

Jonathan Swift (instructed by the Treasury Solicitor) for the Appellant
Timothy Pitt-Payne (instructed by the Office of the Information Commissioner) for the Respondent
Martin Chamberlain (instructed by the Treasury Solicitor) for the Intervener
Hearing dates: 3, 4, 5 March 2008
____________________

Buried deep within this Judgment is:

Conclusion on the first decision

103 For the reasons given above, the first decision will be quashed and the appeal from the decisions of the Commissioner remitted. My provisional view is that the appeal will have to be heard by a differently constituted Tribunal, since the decision will have to be heard and determined afresh.

The second decision

104 My conclusion on the first decision means that the second decision must fall away, and it too must be quashed. However, since the appeal against it was fully argued before me, and raises an important issue as to the practice of the Tribunal, I propose to address it.

Presumably, there will now be another 4 day hearing with barristers and QCs, going over the same grounds, yest again, at public expense, when a different panel of the Information Tribunal hears the case again.

This second Information Tribunal will probably take another year and then there will be yet another High Court appeal against that, taking another year after that - this is not proper Justice.

Addendum

113 The controversy concerning identity cards, and the OGC's objections to disclosure of the gateway reviews relating to the programme, may have led to speculation that they include undisclosed information that could be regarded as damaging to the programme. If there were a "smoking gun" in the reviews, the case for disclosure would, on one view, be considerably strengthened. I have read both reviews. There is, in my view, no "smoking gun". So far as the first gateway review is concerned, this is not surprising, given that it led to the government's decision to introduce the Identity Cards Bill, a step which would have been irrational if the review had concluded that the programme was impracticable.

Given the lack of detail and the "back of a fag packet" nature of the Government's plans, even today, years after these initial reports were produced, the "smoking gun" was never likely to be a bold statement that the planned scheme was unworkable. It is far more likely that it is the absence of important factors and risks which are not mentioned in these Gateway Reviews, which are critical. e.g. a gross underestimate of the false positive and false negative rates of the biometric technology, or the lack of detailed consideration and costings for the necessary secure network infrastructure in non-Home Office Government Departments and in the private sector.

It is utterly despicable that Article 9 of the Bill of Rights 1689, which is supposed to protect freedom of speech in Parliament, has, instead, been abused to suppress the disclosure of the early Office of Government Commerce Gateway Reviews of Home Office Identity Cards Programme, requested under the Freedom of Information Act 2000.

What use is the whole system of Parliamentary Select Committees, if their publicly published Reports cannot be made use of in this way ? They might as well all be scrapped.

The politicians and civil servants are making fools of themselves over this whole national centralised biometric database scheme, and in their wasteful attempts to keep their failings secret, by delaying and denying Freedom of Information rights.

The Bill of Rights 1689 a historical piece of the English Constitution, which was intended to preserve the rights and freedoms of the public and of Members of Parliament from abuses by the Executive branch of Government, which, in the 17th Century was:

Whereas the late King James the Second by the Assistance of diverse evill Councellors Judges and Ministers imployed by him did endeavour to subvert and extirpate the Protestant Religion and the Lawes and Liberties of this Kingdome.

If you replace "the late King James the Second" with."Tony Blair"or "Gordon Brown", the words fit just as well.

We are astonished and furious, that this Bill of Rights, is being abused in the High Court to try to weasel out of having to disclose the early (and now very out of date) Gateway Reviews of the Home Office's Identity Cards Programme (as it was then, circa 2002 / 2003), by the lawyers for the Government's Office for Government Commerce, supported by, incredibly, lawyers for the Speaker of the House of Commons, in their Appeal against the Decision of the independent Information Tribunal, which ordered full disclosure, in the public interest.

Are the Government and their lawyers desperate, or evil ?

Why is the Speaker of the House of Commons helping the Executive branch of Government, to suppress freedom of speech and transparent open government, in a matter of huge public interest ?

[hat tip to UK Liberty for spotting this before us]


Bill of Rights 1688 ( "Act declared to be a Statute by Crown and Parliament Recognition Act 1689 (c. 1)")

That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.

See the history of this long running Freedom of Information Act disclosure suppression in our OGC Gateway Reviews of the Identity Cards Programme blog category archive.

The Office of Government Commerce have emailed to say that the High Court date for their appeal against the decision of the Information Tribunal ordering the full publication of the Home Office Identity Cards Programme early Gateway Review reports, has now been brought forward by a day, and is set to start a 3 day hearing this coming for Monday 3rd March 2008 at 10:00am 10:30am , at the Royal Courts of Justice, in the Strand, (Court number still to be decided).


UPDATE: from the Daily Cause List:


ADMINISTRATIVE COURT

[...]

COURT 2

Before MR JUSTICE STANLEY BURNTON

Monday 3 March, 2008

At half past 10

FOR HEARING

CO/4438/2007 Office Of Government Commerce v Information Commissioner S Office

CO/5491/2007 Office Of Government Commerce v Information Commissioner

[...]


The Information Commissioner may have been publicising Friday 28th September as international Your Right To Know Day (.pdf), but another Anniverseray has now been reached:

It is now over 1000 days since our original Freedom of Information Act request was submitted, initially to both the Office of Government Commerce and to the Home Office, for the to pre-Stage Zero and the actual Stage Zero Gateway review reports, on the Home Office's Identity Cards Programme.

Despite years of delays, and an appeal to the Information Commissioner, who made a Decision in favour of full publication, back in July 2006, folllowed by an appeal by the OGC to the Information Tribunal, who also found in favour of full disclosure in May 2007. The OGC is currently wasting more public money by appealing to the High Court.

These Gateway Review reports have still not been disclosed.

The High Court resumes its non-emergency activities after the summer break on Monday.

We will be nagging them to disclose when the alleged OGC appeal, supposedly on a point of law, rather than just the balance of the interpretation of the law, against the Information Tribunal's ruling is to be heard.

See OGC Gateway Reviews of the Identity Cards Programme category archive for the history of this deliberate and disgraceful bureaucratic and political suppression of our rights under the Freedom of Information Act 2000.

It is very likely that when, not if, the High Court finds in our favour, and orders the Labour government to disclose the by now, very out of date documents, we will want to know exacly how much this has cost the taxpayer in terms of legal fees and civil servants' time.

UPDATE: 5th October 2007

The OGC have emailed to say that the High Court date for their appeal against the decision of the Information Tribunal regarding their ordering of the full publication of the Home Office Identity Cards Programme early Gateway Review reports, has provisionally been set for Tuesday 4th and Wednesday 5th March 2008 at the Royal Courts of Justice (times and Court still to be decided nearer the date).

Even assuming that the High Court makes a Judgement (hopefully rejecting the appeal of the OGC)) on the Wednesday, this will be at least 3 years 2 months 3 days i.e.1158 days since the original FOIA request to the Office of Government Commerce and the Home Office, when the Freedom of Information Act 2000 came fully into force on 1st January 2005.


According to the Financial Times the Office of Government Commerce, a creature of Her Majesty's Treasury, headed by Chancellor soon to be Prime Minister Gordon Brown is appealing against the Information Tribunal's decision to uphold the Information Commissioner's decision to order the OGC to publish in full, the documents requested in our Freedom of Information Act for the Stage Zero and two Pre-Stage Zero Gateway Review reports into the Home Office's controversial and hugely expensive Identity Cards Programme.

The Freedom of Information Act 2000 Section 59 Appeals from decision of Tribunal does allow for an appeal against the decision of the Information Tribunal to be heard by the High Court, but only on a point of law

59. Any party to an appeal to the Tribunal under section 57 may appeal from the decision of the Tribunal on a point of law to the appropriate court; and that court shall be-

(a) the High Court of Justice in England if the address of the public authority is in England or Wales,
(b) the Court of Session if that address is in Scotland, and
(c) the High Court of Justice in Northern Ireland if that address is in Northern Ireland.

We are mystified as to what "points of law" OGC can possibly argue before the High Court.

How much money in legal fees will all these pointless appeals end up costing the taxpayers ?

Gordon Brown is already reneging on his recent promises about "open government" or public transparency and accountability. He does not have to wait to take over as Prime Minister, he could have ordered the documents to be released disclosed already, since the OGC is directly under his control as Chancellor of the Exchequer. It seems unlikely that such an infamous micro-manager, would not be fully aware of the OGC decision to waste further public money on legal costs in this matter.

We are awaiting details of any future High Court dates for this case, which could possibly be done via written submissions without a formal hearing. Hopefully the High Court will decide to reject the OGC appeal.

About this blog

This United Kingdom based blog has been spawned from Spy Blog, and is meant to provide a place to track our Freedom of Information Act 2000 requests to United Kingdom Government and other Public Authorities.

If you have suggestions for other FOIA requests,  bearing in mind the large list of exemptions, then email them to us, or use the comments facility on this blog, and we will see  what we can do, without you yourself having to come under the direct scrutiny of  "Sir Humphrey Appleby" or his minions.

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