ID card challenge batted back

15 Apr 2008 | 07:08 BST

By Mark Ballard

AN ATTEMPT to force the UK Government to publish the feasibility studies for its infamous Identity Card Scheme has been swatted down by the High Court.

The Court upheld government appeals against a decision by the Information Tribunal last year that the feasibility studies should be published.

The High Court ruling was made on a technicality, however, leaving the Tribunal the option of revisiting its own ruling on the disclosure again.

The Court found that the Tribunal's decision had been faulty because its reliance on the opinions of a Parliamentary Select Committee, which put it in danger of breaching parliamentary privilege.

The Tribunal said it was considering whether to take the case again, which had involved the Office of Government Commerce, the government's procurement quango, refusing to satisfy two Freedom of Information requests to publish details of early Gateway Reviews (feasibility studies) of the Identity Card Scheme.

The row drags on
The Information Commissioner, which administers the UK's FOI laws, said it stood by its 2006 decision that ordered the OGC to disclose the reviews.

The OGC had maintained that disclosure would damage the gateway review process by making it less likely that civil servants would give their honest opinions about the feasibility of government IT projects.

The ICO repeated today its opinion that disclosure would not damage the review process.

"Disclosure is likely to enhance public debate of issues such as the programme’s feasibility and how it is managed,” the ICO said.

The OGC stuck to its guns as well.

"The Office of Government Commerce is wholly committed to the principles of operating in an open and accountable way, and has mechanisms in place to maintain transparency wherever appropriate," it said.

For what it's worth
Strictly speaking, the technical let off meant the High Court was not required to rule on the substance of the case, so it didn't. But it did throw in its two pence.

The Court found problems with the OGC's appeal against the decision to disclose the reviews, as well as with the Information Tribunal's order for their publication.

It agreed with the Tribunal that the OGC had overstated its case about the damage that could have been done to the Gateway Review process by publication of its findings. Granted, there might be some risk in disclosure, but it did not venture an opinion on how this balanced against the public interests of transparency.

Still, it picked the Tribunal up on some weaknesses in its justification or ordering disclosure. This was the first time that an FOI dispute had gone to the high court, however.

Fallout
This ruling was not the end of the ongoing attempts by campaigners for the OGC's commitment to transparency to extend to Gateway Reviews. Regardless of whether the Tribunal picks up the baton again, the Court indicated that each claim for disclosure of a feasibility study would be taken on its individual merit.

Yet the Court ruling contained a revelation that will either prove either substantially disheartening for Mark Dziecielewski and Mark Oaten MP, the anti-ID card campaigners who brought the FOI requests in the first place, or it will amuse them greatly.

Justice Stanley Burnton, the presiding judge, made an aside on the hopes of anti-ID card campaigners that the Gateway Reviews might prove damning to the programme as a whole.

"If there were a 'smoking gun' in the reviews, the case for disclosure would, on one view, be considerably strengthened," said Burnton.

"I have read both reviews. There is, in my view, no 'smoking gun'," he said.

It stands to reason, he said, that if there had been a smoking gun, then the government wouldn't have gone ahead with the ID Scheme in the first place, would it?

As Burnton isn't an IT expert, we can probably reserve judgment on that argument until the reviews are published. It quite puts the whole question of this case for transparency in a logical deadlock: the whole thrust of the requests after all was the belief that the government pressed ahead with the scheme in total disregard of any amount of sensible advice that it shouldn't. So yes, Burny, it well might. µ

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