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High Court quashes decision to release secret ID card reports

Decision must now be re-assessed

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The High Court has quashed an Information Tribunal ruling ordering the release of independent reviews of the Government's controversial identity card scheme. The freedom of information case must now be re-assessed by a new Tribunal, the Court said.

The massive project is subject to periodic independent reviews of progress, called Gateway Reviews, by the Office of Government Commerce (OGC). An activist and a Member of Parliament used the Freedom of Information (FOI) Act to request the publication of two of those reviews, from 2003 and 2004.

The Information Commissioner said that the reviews should be published, as did the Information Tribunal when the case was appealed by the OGC. The High Court, though, has said that a new Tribunal must hear the case again because the Tribunal had made errors in its previous ruling.

The High Court has not said whether or not the information should be published, just that the decision must be made again on a different basis.

The Tribunal's first decision could not stand because it had been based in part on a report on the confidentiality of the Gateway Reviews produced by a Parliamentary Select Committee on Work and Pensions. This, said Mr Justice Stanley Burnton, put the Tribunal and the judiciary at risk of breaching the ancient right of Parliamentary privilege.

It is a long established principle that the courts will not pass judgment on proceedings or decisions of the Houses of Parliament in order to maintain the separation of powers considered essential for good government.

It is not permitted for parties in a court action to draw in evidence from a Select Committee to boost their case because in order to refute that point the other side in the case must persuade the court to disagree with the findings of Parliament, which it cannot do.

In the Gateway Review case it was the Tribunal itself, though, that introduced the Select Committee's work into proceedings.

"It was the Tribunal that raised the question whether there was a report of a Parliamentary Select Committee relevant to the questions of the confidentiality or disclosure of gateway reviews," said Mr Justice Burnton. "This created a risk of a breach of Parliamentary privilege by the Tribunal. More importantly the Tribunal erred in being influenced by the opinion of the Select Committee on Work and Pensions."

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