[2025] UKUT 114 (AAC)

The Cabinet Office appealed against the ICO’s decision notice to the Tribunal, which heard the appeal on 26 October 2023. On 5 December 2023 the Tribunal dismissed the appeal (although the decision was not promulgated until 14 December 2023).

The Tribunal set out the basis of the Cabinet Office’s appeal:

“25.

The Cabinet Office based its appeal on two grounds –

•

the Commissioner's finding that s36(2)(c) was not engaged was inadequate since it did not justify that reasoning in the face of the finding of the qualified person that it was and the existence of a distinct prejudice in the form of prejudice to the processes for handling complaints by officials of the Cabinet Office and the quality of discussions and advice was identified by the qualified person.

•

In assessing the balance of public interest the Commissioner

(1)

failed to give "appropriate weight" to the views of the qualified person in carrying out the public interest assessment.

(2)

erred in failing to take into account at all the broader evidence as to the impact on the effective conduct of public affairs (including by reason of the 36(2)(c) error.

(3)

erred in basing his conclusion on a finding that disclosure of this information would not "have a significant chilling effect in future such cases", which was inconsistent with the (accepted) view of the qualified person and the submissions of the Cabinet Office.

(4)

erred in basing his conclusion on a finding that the present case "is exceptional and in most cases senior officials could have reasonable confidence that their advice and exchanges would not be publicly disclosed" created uncertainty in the circumstances in which such confidence could reasonably be held by senior officials, thereby increasing the risk of a "chilling effect".

(5)

The IC erred in giving inappropriate weight to the earlier decision of the IC in FS50795091 concerning the appointment of Boris Johnson as a columnist at the Telegraph (at [65-66]) in circumstances where the IC in fact refused to order disclosure of information withheld by the Cabinet Office in that case and other similar cases ...

(6)

The IC erred in giving inappropriate weight to purported previous breaches of the Ministerial Code in circumstances where no such breaches have ever been found against Ms Patel, and the responsibility for finding such breaches is solely within the remit of the Prime Minister under the Ministerial Code.

(7)

erred in giving inappropriate weight to an apparent view that the Prime Minister and/or ACOBA had not done enough to ensure transparency, and that publishing the frank and candid views of civil servants would provide the "transparency and accountability … that is currently missing".

26.

Simon Madden, Director of Propriety and Ethics in the Cabinet Office since August 2022, gave evidence on behalf of the Appellant. He had no involvement with the decision-making which led to this case. He has policy responsibility for the Business Appointment Rules, is sponsor for the Advisory Committee on Business Appointments and oversees the casework for which the Cabinet Office is responsible.

27.

In setting out the background to the case he confirmed that the Ministerial Code "is not, and is not intended to be, a source of any legal rights or duties." Furthermore the Prime Minister does not act judicially or quasi-judicially; the decisions under the Ministerial Code are for him and him alone to take as he sees fit in the circumstances of the case: "Ministers only remain in office for so long as they retain the confidence of the Prime Minister. The Prime Minister is the ultimate judge of the standards of behaviour expected of a Minister and the appropriate consequences of a breach of those standards'' (Ministerial Code paragraph 1.6). He set out the general arrangements for dealing with questions under the Business Appointments Rules:

"When there has been a suspected breach of the BARs by a former Minister or senior civil servant, ACOBA will write to the Minister for the Cabinet Office. Alternatively, if the relevant Government department identifies a potential breach by a former Minister or senior civil servant, it will write to ACOBA with any relevant information, which will then write to the Minister for the Cabinet Office. The Propriety and Ethics Team will provide advice to the Minister for the Cabinet Office on the correspondence from ACOBA. It is then up to the Minister to determine if such a breach has in fact occurred, and if further action (such as writing to the individual in question) is required."

28.

In discussing the exemptions the Cabinet Office relied upon he confirmed that he agreed with the view of the qualified person that the material should be withheld. He emphasised the importance of being able to conduct investigations into the questions of possible breaches of the Ministerial Code and BARs. The effectiveness of this function depends on the provision of free and frank advice from and to those involved in gathering and assessing relevant facts to determine appropriate responses to potential breaches:

"The process of developing and determining appropriate responses to potential breaches in each individual case will often involve exploring possible responses in a candid way, even where those responses are unpalatable, for the purpose of generating better advice. It is easy to see why individuals sharing such advice which is, sensitive or politically which is, sensitive or politically controversial would be concerned about it being publicly disclosed. Such individuals would not wish to harm their own career prospects or otherwise have their advice become the subject of public dissemination or media or parliamentary scrutiny. Practically, there is a risk that such individuals will censor themselves when discussing cases or record less information in writing."

29.

He made related points in respect of the free and frank exchange of views (paragraphs 25-26) and the effective conduct of public affairs where he indicated:

"For the purposes of the Ministerial Code, it is vital that the Prime Minister is placed in the best position possible to make a judgement about such allegations and then to decide whether he continues to have confidence in that Minister. It is essential to, the proper functioning of the highest levels of His Majesty's Government and to the Prime Minister's ability to exercise his constitutional function in determining the composition of the Government that this opportunity both exists and operates effectively".

30.

For this to happen people needed to come forward and co-operate, providing candid information. He generalised this to the importance of the ability to receive information under an assurance of confidentiality across a wide range of public bodies and departments and for officials to be able to give candid advice clearly setting out and considering the issues.

31.

In response to the exploration of the impact of possible disclosure under FOIA on how he would have advised in similar circumstances he confirmed that he would not have provided materially different advice.”

The Tribunal then set out its decision in the following terms:

“Consideration

32.

The first ground of appeal is that the Commissioner erred in law in considering that s36(2)(c) did not apply. The argument advanced by the Cabinet Office based on the evidence of Mr Madden is that for the proper investigation of breaches of such as those under consideration there needs to be the confidence that people coming forward with information will have their confidentiality protected and if this was not the case individuals would be aware that their contributions could be publicly disclosed and may fear reprisals or other personal or professional ramifications:

"it is essential that the Cabinet Office is able to make effective enquiries whenever issues about Ministerial conduct are raised, and to assemble a comprehensive and well-informed picture of the circumstances surrounding such issues in order to effectively handle and respond to them. Any diminution in the candour or quality of advice and views provided to support such processes resulting from the risk of disclosure will prejudice their overall effectiveness".

33.

However, on this occasion there is no issue of a need for witnesses to come forward. The information was in the newspapers and the only issue on this occasion was how the Civil Service would handle the issue and what the Prime Minister would do with the advice of the Civil Service. It is important to recognise that the question raised by s36 is whether the processes would be inhibited in future by the disclosure of the requested information; rather than the specific information itself. The question is whether the proper processes of government – the free and frank exchanges of views and advice and other matters relating to the conduct of public affairs would be impeded by the disclosure. In other circumstances there could well be a need for a careful collection of information and the chilling effect of disclosure in this case (where for example less senior civil servants might not be fully apprised of the specifics of what was disclosed and might consider it was directly relevant to them) would foreseeably have some negative impact on that ability to gather relevant information.

34.

The tribunal is therefore satisfied that disclosure in this case would be likely to inhibit the provision of advice, the exchange of views and the ability to gather evidence and weight.

35.

In considering the public interest weight must be given to the opinion of the qualified person who was consulted on 6 February and opined on 12 February finding that the tests with respect to inhibition and prejudice were met. It is clear that the ability of officials to gather information on the conduct of Ministers, evaluate and discuss such material and formulate advice for the purpose of upholding the Ministerial code has significant weight. The exercise of consulting the qualified person was conducted again with like effect a year later.

36.

The passing of time has had a significant impact on the issues raised by this case. The request was made immediately after Mr Johnson became Prime Minister and the request referred to a breach of the Business Appointment Rules by him after ceasing to be Foreign Secretary.

37.

It may be noted that the Cabinet Office appears to have misunderstood the Commissioner's reference to it in the decision notice which was that there was a significant and strong public interest in a former Foreign Secretary acting in breach of the rules of conduct. While the Commissioner had not ordered disclosure in that case the significance of the issue of Mr Johnson's compliance was in the Commissioner's view clear. Point 5 of the Cabinet Office's public interest ground of appeal is without substance.

38.

Point 6 of the Cabinet Office's case – the Commissioner erred in giving weight to purported breaches of the ministerial code when only the Prime Minister may determine whether there has been a breach has been illuminated by the decision in the FDA case where the Divisional Court considered the status of the Ministerial code and the question of justiciability and made a clear distinction:

"42.

We recognise that in certain instances, a dispute about the interpretation of something in the Ministerial Code may be so closely connected with a decision to dismiss or retain a minister that it may not be possible to separate out the issue of interpretation from the position of the minister. In those circumstances, the dispute may not be justiciable. But that is not this case. This case concerns the question of whether the Prime Minister has mis-interpreted the Ministerial Code by interpreting the words in paragraph 1.2 as not including conduct which is offensive where the perpetrator was unaware of, or did not intend to cause, upset or offence. We are satisfied that that particular issue is justiciable."

39.

The distinction is inherent in the Code and arises out of the conflict between normative values and political choice. In this case it is a simple distinction between facts and expediency. Paragraph 1.4 of the Code (see above) makes clear that the Prime Minister makes the decision whether there is to be an investigation of an alleged breach and paragraph 1.6 reserves the right to decide whether there has been a breach to the Prime Minister. A Prime Minister may wish to retain a Minister no matter what the Minister has done on the LBJ principle of the relative locations of Mr J Edgar Hoover and the tent. However, that does not debar an observer from properly and fairly coming to a conclusion on the facts since proverbially "a cat may look at a king" or as Hans Christian Andersen's little boy said "the emperor has no clothes". The public may examine the facts (if it has access to them) and decide properly whether a Minister has broken the Code. That is very different from a Prime Minister's decision to dispense with a Minister. However for the Cabinet Office to place weight on the suggestion that absence of an explicit decision by the Prime Minister is as disingenuous as asserting that Parliament may legislate that black is white. The argument is without substance.

40.

Some six months passed between the request and the formulation of the qualified person's opinion. During that period there was the unlawful prorogation of Parliament by the Prime Minister, a general election and the withdrawal from the EU. There was however no accountability with respect to the question of the conduct of the Home Secretary. A letter from Mr Trickett (an Opposition spokesman) to the Prime Minister on the matter went unanswered. There had been no effective parliamentary scrutiny and accountability.

41.

After the qualified person gave the opinion on 12 February 2020 the decision of the Cabinet Office was not communicated for 40 days. During this period of quarantine, the pandemic took hold and the restrictions on social contact took effect on the same day as the decision was sent (while this was no doubt in a clearing of the desks exercise it was communicated on "a good day to bury bad news").

42.

However, the delay in announcing the decision was a further delay in making the decision. It is settled law that the date the public interest is weighed is the date of the refusal by the public authority (Evans, Montague). While on 12 February the public interest issues raised by the Guardian article on which the request was based could have been formulated as raising questions as to:-

"the commitment of the Prime Minister to a Ministerial Code which he has breached who appointed a Minister dismissed by Mrs May apparently for breaching the Ministerial Code who has now apparently breached the Ministerial Code a second time shortly before re-appointment to the Cabinet by failing to comply with BAR provisions which her appointing Prime Minister failed to comply with appears to have taken no action on the matter over a protracted period".

The issue was of far greater salience after the almost unprecedented resignation of the Permanent Secretary alleging misconduct by the Home Secretary of such gravity that there was no alternative to his resignation. In his resignation letter he stated:

"One of my duties as Permanent Secretary was to protect the health, safety and wellbeing of our 35,000 people. This created tension with the Home Secretary, and I have encouraged her to change her behaviours. This has been a very difficult decision but I hope that my stand may help in maintaining the quality of government in our country, which includes hundreds of thousands of civil servants loyally dedicated to delivering this government's agenda".

43.

An inquiry to be conducted by the Prime Minister's adviser had been announced however questions of the commitment of the Prime Minister and Home Secretary to the Ministerial Code and the Nolan principles were now of far greater salience, enhancing the public interest in whatever light the disclosure of withheld material as requested by Mr Hislop could cast on the handling of the matters raised by the Guardian article.

44.

In addition to those issues in the article the circumstances of the resignation of Sir Philip Rutman who, acting with the integrity required by the Civil Service Code, had resigned to protect the health and safety of his staff and the quality of government also put into sharp focus the conduct of the civil servants who had handled the issue in the Cabinet Office and whether they had acted with integrity, honesty, objectivity and impartiality in handling the matter, whether they had (in the traditional formulation of the duty of a civil servant) spoken truth to power. This is particularly enhanced since Sir Philip's resignation brought into public concern bullying of civil servants by Ministers and raised the question of whether civil servants would have felt exposed to the risk of bullying if they were to advise the Prime Minister in such circumstances. This point was well explored by Mr Madden in his evidence.

45.

While the issues identified by the Guardian article were highly significant, the resignation of Sir Philip Rutnam made the case (at that time) wholly exceptional and all civil servants would have appreciated it. This would significantly reduce the chilling effect emphasised as point 3 of the Cabinet Office's public interest arguments – indeed it is a factor which the qualified person who made the operative decision on 12 February 2020 (Oliver Dowden) could not have been aware of in coming to his conclusions. The opinions of Chloe Smith (2021) and Baroness Neville-Rolfe (2023) did not inform that decision and in the circumstances add little. It is notable that the letter reflecting the Chloe Smith opinion (paragraph 9 above) fails to engage with the gravity of the issues around Ms Patel in March 2020 and references the tired platitude that "what the public is interested is not necessarily in the public interest" by stating "media coverage does not automatically mean that there is a public interest" while making no reference to the issue of the practical and specific issue of the conduct of that Minister and the resignation of the Permanent Secretary or the resignation of Sir Alexander Allan in November 2020 arising out of the handling of the third breach of the Ministerial Code.

46.

The tribunal places weight on the evidence of Mr Madden which fairly set out the challenges which civil servants face. However it is important to recognise the evolution of thinking about candour set out in the recent Upper Tribunal decision of Lewis:

"Historically the candour argument was advanced in support of both class and contents claims for PII and LPP. The common law on these issues diverged with the result that LPP is based on a right and so a guarantee of non-disclosure, whereas no such right exists in the context of PII claims or duties of confidence. The lack of a right guaranteeing non-disclosure of information, absent consent, means that that information is at risk of disclosure in the overall public interest (i.e. when the public interest in disclosure outweighs the public interest in non-disclosure). As soon as this qualification is factored into the candour argument (or the relevant parts of the safe space or chilling effect arguments), it is immediately apparent that highlights a weakness in it. This is because the argument cannot be founded on an expectation that the relevant communications will not be so disclosed. It follows that if he is properly informed, a person taking part in the discussions will appreciate that the greater the public interest in the disclosure of confidential, candid and frank exchanges, the more likely it is that they will be disclosed. In general terms, this weakness in the candour argument was one that the courts found persuasive and it led many judges to the view that claims to PII based on it (i.e. in short that civil servants would be discouraged from expressing views fully, frankly and forcefully in discussions relating to the development of policy) were unconvincing."

47.

The tribunal also recognises the exceptional circumstances of this case; places weight on the integrity of civil servants seeking conscientiously to discharge their duties in accordance with the Nolan principles and their statutory code of conduct; and on the evidence of Mr Madden as to how he would have approached the issue aware of the possibility of disclosure (discussed above). While there are some harms flowing from disclosure the exceptional circumstances arising out of Sir Philip's resignation dramatically reduces those harms since the public interest in the proper management of the Ministerial Code and accountability around that was even more significant than before, the public interest is decisively in favour of disclosure. The tribunal is satisfied that the Commissioner correctly concluded that there was a lack of transparency and accountability and dismisses the appeal.”

It is common ground that the second ground of appeal (that the ICO erred in carrying out the public interest test) was dismissed. The parties disagree as to whether the first ground (that he erred in finding that s.36(2)(c) was not engaged) was upheld or not.

The ICO also accepts that the basis on which the Tribunal dismissed the appeal diverged significantly from the reasons advanced by him at the hearing (as to which I refer below).