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Business Appointments Rules for Former Ministers
Business Appointments Rules for Former Ministers
The Business Appointments Rules for Former Ministers(“BARs”) annexed to the 2018 Code explained at the outset that:
“It is in the public interest that former Ministers with experience in Government should be able to move into business or into other areas of public life, and to be able to start a new career or resume a former one. It is equally important that when a former Minister takes up a particular appointment or employment, there should be no cause for any suspicion of impropriety. “
The work of ACOBA was summarised at paragraphs 3 and 5-6:
“3. The Committee will need to consider details of the proposed appointment or employment, which includes any proposal to undertake consultancy work. If necessary, the Committee will seek, in confidence, additional information from senior officials of a former Minister’s Department(s) about any contact with the prospective employer or its competitors and the nature of any contractual, regulatory or other relationships with them … With the former Minister’s permission, the Committee may wish to contact the proposed new employer for clarification of the proposed appointment or employment and notification of the conditions that will apply to it …
5. The Advisory Committee will consider each request for advice about an appointment or employment on its merits, against specific tests relating to the following: I. to what extent, if at all, has the former Minister been in a position which could lay him or her open to the suggestion that the appointment was in some way a reward for past favours? II. has the former Minister been in a position where he or she has had access to trade secrets of competitors, knowledge of unannounced Government policy or other sensitive information which could give his or her new employer an unfair or improper advantage? III. is there another specific reason why acceptance of the appointment or employment could give rise to public concern on propriety grounds directly related to his or her former Ministerial role?
6. The Advisory Committee will need to balance any points arising under these tests against the desirability of former Ministers being able to move into business or other areas of public life, and the need for them to be able to start a new career or resume a former one.”
Having repeated paragraph 7.25 of the 2018 Ministerial Code, paragraph 1 of the BARs explained that:
“The business appointment rules for former Ministers seek to counter suspicion that: a) the decisions and statements of a serving Minister might be influenced by the hope or expectation of future employment with a particular firm or organisation; or b) an employer could make improper use of official information to which a former Minister has had access; or c) there may be cause for concern about the appointment in some other particular respect.”
Paragraph 4 of the BARs explained that “Retrospective applications will not normally be accepted”, a point addressed further in ACOBA’s Annual Report for 2018-2019 and 2019-2020, which was published in February 2021. As the current Chair, Lord Pickles, explained in the Foreword (with emphasis added): “Retrospective applications will be unambiguously treated as breaches of the Rules.” The Annual Report goes on to explain in more detail (with emphasis added):
“21. A retrospective application is one where an appointment or employment has been taken up or announced before the Committee has provided its full and final advice. This is a breach of the Government’s Rules”
(see, to the same effect, paragraphs 49-50 of ACOBA’s 2017-2018 Annual Report).
22. The Committee needs to be free to offer the most appropriate advice in any situation without the obvious constraints which occur (perceived or otherwise) if an appointment or employment has already been announced, or the applicant has already signed a contract or taken up the role.
23. There may be unusual or extenuating circumstances where the Committee may choose to consider the retrospective application. This will not be the norm. In these cases, the Committee will still make it clear it is not acceptable to submit an application retrospectively.
24. The Committee deploys transparency to hold individuals to account, publishing the correspondence concerned. The Committee takes this approach in order to draw attention to the failure to submit an application and to encourage wider compliance with the Government’s Rules. The Committee’s transparent approach leads to welcomed scrutiny by members of the public and the media who know to expect to see advice published on ACOBA’s website for taken up appointments.
25. Where the Committee has received a retrospective application, it will make it clear in its advice that retrospective cases will not be accepted and that a failure to seek advice is a breach of the Rules. It will also consider on a case by case basis how the public interest is best served. For example, the Committee may consider the risks presented on the face of the application to be so significant that it will provide full and final advice to ensure such risks do not go without consideration and mitigation.”
- Heading
- Section 1
- Background
- The Legislation
- The ICO’s Reasons
- Relevant Codes of Conduct
- Business Appointments Rules for Former Ministers
- The Decision of the Tribunal
- The Appeal to the Upper Tribunal
- the Tribunal erred by failing to give adequate reasons for its conclusion that the public interest favoured disclosure the Tribunal erred in its application of the public interest test by having regard to irrelevant considerations
- The Cabinet Office’s Submissions
- the decision failed to engage with key points relied on by the Cabinet Office
- it failed to give appropriate weight to the qualified persons’ opinions
- it failed to address the implications of its finding that s.36(2) (c) was engaged, bringing into scope broader evidence Failure to engage with key points
- point 1 related to the “appropriate weight” to be given to the views of the qualified person
- point 4 related to the notion that the circumstances were exceptional
- principle – as to the proper role of FOIA where due process had been followed and the prospect of a “court of public opinion” compounding the chilling effect, citing Information Commissioner (“IC”) v
- Weight to be afforded to witness with institutional expertise
- as distinct from the qualified person point above, this was not a question of
- Weight to be afforded to the qualified person’s opinion
- “Exceptional circumstances”
- No regard to broader evidence despite s.36(2) (c) finding
- the Tribunal recounted that first ground and indeed quoted it verbatim (at [25])
- the Tribunal went on to find that “there could well be a need for a careful collection of information and the chilling effect of disclosure in this case … would foreseeably have some negative impact o
- the Tribunal was therefore satisfied that disclosure would indeed, as the qualified person had opined, “be likely to inhibit the provision of advice, the exchange of views and the ability to gather ev
- Resignation of Sir Philip Rutnam
- Breach of the BARs by Mr Johnson
- doing the same
- Public perception
- Other matters identified by the ICO
- Ground 3: Abdication
- the Tribunal did not appear to have placed any weight on the fact that a formal decision as to whether a minister had complied with the Code was ultimately a matter for the Prime Minister alone. The I
- the point was, in addition, relevant to one limited piece of the withheld information
- Conclusion
- Ground 1 (inadequate reasoning): although the ICO did not agree with all of the Cabinet Office’s arguments advanced under Ground 1, he too took the view that the Tribunal’s reasoning was inadequate in
- Ground 2 (irrelevant considerations): the ICO agreed that the Tribunal erred in various respects when considering other alleged breaches of the Code and BARs by Ms Patel and Mr Johnson. The Tribunal t
- Ground 3 (failure properly to evaluate the public interest balance): the argument advanced under Ground 3 was unclear. Insofar as it simply reframed Ground 1, then the ICO repeated his response to tha
- Legal Framework
- The public interest test: general considerations
- The public interest test: s.36 specific considerations Weight afforded to the qualified person’s opinion
- “Chilling effect” arguments
- Response to the Grounds of Appeal
- Ground 2: regard to irrelevant considerations as part of the public interest balance
- second, such an approach was inconsistent with the Divisional Court’s analysis in FDA , where at [41] it rejected the Cabinet Office’s submission “that the sole purpose of the Ministerial Code is to d
- Ground 3: failure to evaluate the public interest in disclosure in light of all relevant material and evidence
- The public interest balance
- The ICO’s limited reliance on the Tribunal judgment under appeal
- The public interest in disclosure
- the clear and unambiguous commentary in ACOBA’s Annual Report that retrospective applications were not permitted
- the Prime Minister did not make any public statement about whether Ms Patel complied with the Code, let alone initiate any investigation. As Mr Madden explained in oral evidence “the Prime Minister in
- the effectiveness of ACOBA in upholding the BARs
- The public interest in non-disclosure
- Further arguments relied on by the Cabinet Office
- it was trite that decision notices were fact-specific and non-binding on the Tribunal: cf. O’Hanlon v IC [2019] UKUT 34 (AAC) 4 at [17] (on the relevance of previous Tribunal decisions)
- Whether s.36(2) (c) was engaged
- paragraph 30 considered the risks of “[a]ny diminution in the candour or quality of advice and views” where paragraph 31 considered (with emphasis added) the “ broader importance to the public of the Cabinet Office maintaining a well functioning syst
- allow the appeal, but only on the more limited basis set out above remake the Tribunal’s decision; and
- Discussion
- S.36(2) (c)
- Ground 3
- Remaking the Decision
- The Public Interest Balance
- the withheld information concerned serious and viable questions about Mrs Patel’s compliance with the Code and the BARs
- Serious and viable questions about compliance
- Transparency and accountability deficit
- Doubts about compliance in the light of the alleged breach in 2017
- Contribution to public debate about enforcement
- Exceptionality
- Factors against disclosure
- Conclusion
- Disclosure of the Names
- Conclusions