[2025] UKUT 114 (AAC)

Resignation of Sir Philip Rutnam

Sir Philip’s resignation (and accompanying allegations) considerably post-dated the 3 August 2019 request and had no connection to its subject matter, namely Ms Patel’s dealings with ACOBA in May-July 2019. While the request was eventually dealt with substantively on 23 March 2020, that was well beyond the statutory time frame (and indeed the ICO had issued a decision notice to that effect on 4 March 2020, reference FS50906944). At the time when the request should have been dealt with, Sir Philip had not resigned. Even by the time of the actual response, all that had happened was that allegations had been made alongside the resignation and an internal inquiry launched (on 2 March 2020). No findings of a breach of the Ministerial Code had been made, nor given the lack of any investigation or due process, could such findings fairly or reasonably have been made.

In any event, far from being salient, that resignation (whether unprecedented or not) was irrelevant to the public interest balancing test in relation to the request. There was simply no logical connection between (what were at the time mere allegations of) bullying and dealings with ACOBA, and no basis to conclude that the former had any bearing on the public interest in disclosure of information relating to the latter. Even less relevant was Sir Philip’s own conduct.

The Tribunal’s reliance on and interpretation of the judicial review of the Prime Minister’s decision on the application of the Ministerial Code to Sir Philip’s allegations, FDA, were also misplaced. It cited a brief discussion of justiciability (at [38-39]). The Divisional Court was there drawing a distinction between (i) what it could consider, namely the construction of the Ministerial Code itself, and (ii) and what it could not, namely whether a minister should be dismissed or retained. There is no basis in that judgment for the distinction which the Tribunal sought to draw, between “normative values and political choice”.

The implications of the Tribunal’s approach were profound. It proceeded on the basis that, regardless of the decision reached by a competent adjudicator on a particular issue, a decision-maker (whether that be public authority, ICO or Tribunal) should not only reach its own view on the merits of that issue, but should also have regard to the view which “the public” might reach. The same logic would apply, in an extreme case, to a criminal conviction. A jury might acquit X of a crime, or a conviction might be quashed on appeal, but according to the Tribunal’s reasoning a decision-maker could approach a FOIA request on the basis that X was, in its view or in the public perception, guilty.

The ICO disagreed with the Tribunal’s approach to the Rutnam resignation.