[2025] UKUT 114 (AAC)

The Cabinet Office’s Ground 2 was that the Tribunal placed weight on two irrelevant considerations, namely “matters related to the handling of entirely separate allegations against Ms Patel and another Minister [Mr Johnson] as purportedly strengthening the public interest in transparency and accountability”. The ICO accepted that Ground 2 identified errors of law, but not to the full extent pleaded in the CO’s Grounds of Appeal.

The ICO had consistently accepted that only the Prime Minister could formally determine whether the Code had been broken. He was at pains to acknowledge that point throughout the decision notice and made clear that he was not proceeding on the assumption that Ms Patel had in fact acted in breach of the Code in taking up the Viasat appointment, see [61], [63-64], [69] and [91]. Although the Tribunal’s approach to those matters was not altogether clear, it appeared to have erred: (a) at [39], in concluding that the Cabinet Office’s attempts to “place weight” on the Prime Minister’s role in enforcing the Code was “disingenuous” and “without substance” and (b) at [45], where it referred to bullying allegations against Ms Patel as “the third breach of the Ministerial Code”.

The ICO also accepted that the Tribunal erred in its approach to previous suggestions that Ms Patel had acted in breach of the Code in bullying civil servants:

the ICO took the bullying allegation into account in combination with Ms Patel’s 2017 breach and the Viasat appointment, and concluded that those matters raised a broader question about her commitment to the standards set out in the Code (the decision notice at [90]).

the Tribunal took an entirely different view of the bullying allegations. It concluded at [42-44] and [47] that the candour of civil servants’ views regarding Ms Patel’s Viasat appointment was materially reduced by the “risk of bullying”. Those findings were unevidenced and therefore irrational and/or amounted to irrelevant considerations. The ICO had never sought to argue that the withheld information shed light on bullying allegations made against Ms Patel. Nor had he sought to discount the Cabinet Office’s chilling effect arguments on the basis that they arose, in whole or in part, from a culture of ministers bullying civil servants.

the ICO’s position was that that matter was relevant: (i) when considering (the lack of) transparency and accountability, as a comparison could be drawn between ACOBA holding Mr Johnson to account for his retrospective application with its lack of comment on Ms Patel’s Viasat appointment (decision notice at [81]) and (ii) in relation to one limited piece of the withheld information.

however, the Tribunal was wrong (i) to record that Mr Johnson had in fact acted in breach of the Code, and (ii) to conclude that an evaluation of all the circumstances provided a sufficient evidential basis to raise doubts about Mr Johnson’s personal “commitment” to the Code.

the Cabinet Office did not under Ground 2, and did not before the Tribunal, take issue with the ICO’s suggestion that Ms Patel’s Viasat appointment raised questions about her compliance with the Code. In other words, the Cabinet Office did not argue that there could be no public interest in disclosure because compliance with the Code was a matter for the Prime Minister alone

nor did the Cabinet Office appeal against the Tribunal’s decision at [42] to place weight on Ms Patel’s 2017 breach of the Code when she was Secretary of State for International Development (as confirmed to the press by a Prime Minister’s spokesperson). That point was relevant to the public interest, as it raised broader questions about Ms Patel’s approach to the behavioural standards expected of ministers: see the decision notice at [90].

first and foremost, the Cabinet Office’s submission was predicated on the assumption that “the proper processes have been followed”. That assumption was wrong. In particular, ACOBA was not made aware of the retrospective application and did not issue any letter of rebuke. Nor did the Prime Minister investigate or reach any conclusion regarding the Viasat appointment. The lack of transparency or accountability was plainly a factor which must be taken into account as part of the public interest balance.