By Tony Collins

An information tribunal judge has unexpectedly refused consent for the Department of Work and Pensions to appeal his ruling that four reports on the Universal Credit programme be published.

The ruling undermines the DWP’s claim that there would be “chilling effect” if the reports were published.

The judge’s decision, which is dated 25 April 2014, means the DWP will have to publish the reports under the FOI Act – or it has 28 days to appeal the judge’s refusal to grant consent for an appeal. The DWP is certain to appeal again. It has shown that money is no object when it comes to funding appeals to keep the four reports secret.

In 2012 John Slater, who has 25 years experience working in IT and programme and project management, had requested the UC Issues Register, Milestone Schedule and Risk Register. Also in 2012 I requested a UC project assessment review by the Cabinet Office’s Major Projects Authority.

Last month the “first-tier” information tribunal ruled that all four reports should be published. It rejected the DWP’s claim that disclosure would inhibit the candour and boldness of civil servants who contributed to the reports – the so-called chilling effect.

The DWP sought the tribunal’s leave to appeal the ruling, describing it as “perverse”. It said the tribunal had wholly misunderstood what is meant by a “chilling effect”, how it is manifested and how its existence can be proved.

It claimed the misunderstanding and the perverse decision were “errors of law”. For the first-tier tribunal’s finding to go to appeal to the “Upper Tribunal”, the DWP would have needed to prove “errors in law” in the findings of the first-tier tribunal.

Now Judge David Farrer QC says his tribunal has understood the chilling effect but found no evidence that it was relevant to the four reports in question. Indeed the judge implies that if the chilling effect existed there would be evidence of it.

“The so-called chilling effect implies Government departments and other public authorities have by now extensive experience of decisions requiring them to disclose information which they sought to withhold for the reasons advanced by DWP here,” says the judge in dismissing the DWP’s request for permission to appeal. “If the chilling effect is a widespread and damaging result of the fear of disclosure, there is every reason for central government to investigate the matter, enabling a government department to present a case based on its research. “Quite apart from that, those receiving reports, conducting discussions and reading advice might be expected to observe, over a period, any trend in changing style and content of their colleagues` written work, so as to be able to present examples and relate them to the perceived threat of disclosure. “Obviously the form of document will remain the same but it is hard to believe that the experienced observer could not spot and demonstrate a general loss of trenchancy, of innovation or of boldness in the content over a period if that were indeed the effect of possible public exposure. “Such changes would constitute ‘concrete and specific effects’, adopting DWP`s wording.”

Although the reports requested under the FOI Act are now old – they date back to 2011 – their publication could throw light on how much DWP ministers and civil servants knew about the many problems with Universal Credit IT at a time when the department was issuing unswervingly positive press releases about the UC programme.

Judge Farrer hinted that DWP ministers and civil servants could have misled the public about the real state of UC programme.

Having read the four reports in question, the judge said in his ruling that the Tribunal was “struck by the sharp contrast with the unfailing confidence and optimism of a series of press releases by the DWP or ministerial statements as to the progress of the Universal Credit Programme during the relevant period”.

At the information tribunal in January 2014 a senior civil servant Sarah Cox, on behalf of the DWP, spoke on the supposed effects of disclosure on the candour and boldness of reviewers.

But the Tribunal noted that a Starting Gate review of Universal Credit was published [in 2011] which the DWP had refused to release under FOI. The Information Tribunal noted that Ms Cox did not suggest that the revelation of this document had inhibited frank discussion within the Universal Credit programme.

The Tribunal said reports such as the risk register and project assessment review are important indicators of the state of a project. Their disclosure can give the public a chance to test whether ministers and civil servants are giving out correct information on the state of a project.

This week the judge says that the Tribunal “read and heard the evidence of Ms. Cox, considered the subject matter and the withheld material, took account of her experience, applied its own experience of these cases and its commonsense and, on this issue, found her testimony unpersuasive, as it was entitled to do.”

In conclusion the judge says the Tribunal “rejects the claim that its handling of the ‘chilling effect’ issue involved an error of law.”

Comment:

The DWP was claiming in 2012 that all was well with the UC programme when in reality they knew there wasn’t even an agreed project plan.

That is a good reason for the DWP to want to keep the reports secret – but the main reason its senior civil servants want to stop publication is tradition. The DWP does not publish any of its reports on the state of big IT-enabled projects and programmes.

It’s perhaps because the DWP has always buried itself under the covers of secrecy that it is so imperious – to the point of arrogance – in its handling of FOI requests and appeals. It acts like an institution that is not used to having outsiders, including the information tribunal and National Audit Office – peep into its affairs.

Perhaps this is why the NAO found that the UC programme was being managed so badly. When complex institutions operate in secrecy and without effective day to day scrutiny standards can continue to fall to a point when even the best leaders are powerless to intervene.

There may come a time – if that time hasn’t been reached already – when the DWP will be held together, and only remain credible in the eyes of the public and Parliament, because of the solid work of its major IT suppliers that have been there for decades, bolstered by a plethora of media announcements and ministerial assurances.

We are certainly getting the media announcements and ministerial statements, but without the publication of reports on UC’s progress, do the official pronouncements mean anything at all?

FOI ruling judge refuses DWP leave to appeal