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Serious and viable questions about compliance
Serious and viable questions about compliance
Paragraph 7.25 of the Code is clear that
“Former Ministers must ensure that no new appointments are announced, or taken up, before the Committee has been able to provide its advice.”
Paragraph 4 of the BARs was also equally clear that
“Retrospective applications will not normally be accepted”.
The same point was addressed further in ACOBA’s Annual Report for 2018-2019 and 2019-2020, As was explained in the Foreword (with emphasis added):
“Retrospective applications will be unambiguously treated as breaches of the Rules.”
The Annual Report went on to explain (again 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.
...
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.”
Importantly, the Report also states that
“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.”
Mr Trickett, the shadow minister for the Cabinet Office, had complained to the Prime Minister calling or an investigation on the basis that Mrs Patel had apparently breached the Code (see the decision notice at [9], [64], [77-78], [84] and [101].
Mr Madden’s oral evidence before the Tribunal, which was accepted, was that Mrs Patel’s later application to ACOBA “could be seen as retrospective”.
It seems to me that none of this can be gainsaid. The allegation made against Mrs Patel undoubtedly raised serious and credible issues about breach of the Code and the BARs. Instead, Mr Coppel KC made two points. The first was that all of the information necessary to ascertain whether or not Mrs Patel had complied with the Code and the BARs was in the public domain already and that disclosure would provide no additional clarity: the view so the civil servants would add little to what was already in the public domain. That falls more naturally to be dealt with under the hearing of transparency and accountability and I shall deal with it there.
The second was in relation to the ICO’s submission that the case was an exceptional one. It was said by the ICO that the case raised serious and credible allegations, but civil servants would then be in the invidious position of having to weigh up seriousness and credibility when only the Prime Minister could decide whether or not the Code had actually been broken.
I shall deal further with the question of exceptionality below, but I do not consider that Mr Coppel KC’s submission in any way reduces the fact that serious and credible allegations had been made. Those allegations needed to be investigated and considered. That only the Prime Minister could ultimately decide whether or not the Code had actually been broken did not preclude the need for such investigation and consideration, a consideration which leads to and is inextricably linked with the questions, to which I now turn, of transparency and accountability.
- 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