High Court upholds OGC appeal against Information Tribunal and suppresses publication of the Home Office ID Cards Gateway Reviews, on grounds of "Parliamentary Privilege" -
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/4438/2007IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURTRoyal Courts of Justice
Strand, London, WC2A 2LL
11/04/2008B 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
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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
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Buried deep within this Judgment is:
Conclusion on the first decision103 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.
Addendum113 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.