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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 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 initiated no investigation, and therefore there was no conclusion to reach because there was no investigation to offer advice either way.” The absence of any investigation and decision could be compared, for example, with statements made (i) in response to Ms Patel’s 2017 resignation and (ii) the Prime Minister’s public statement in response to the bullying allegations (FDA at [18]).
the Cabinet Office suggested that transparency and accountability was provided by Ms Patel registering the Viasat appointment with the Register of Members’ Financial Interests before she submitted her application to ACOBA. That submission was untenable. First, it was clear that ACOBA was unaware of the appointment when it sent the July 2019 letter. Second, the relevant version of the Register of Interests ran to almost 500 pages and it was therefore unreasonable for expect ACOBA to review it.
In his written evidence, Mr Madden asserted that “[w]here there has been no finding of any breach of the rules in the context of due process, public disclosure is not an appropriate backdoor mechanism for accountability.” However, there was no identifiable process of investigation into, or conclusion concerning, Ms Patel’s compliance with the rules. FOIA would therefore play a vital role in providing the transparency and accountability which was lacking through other means.
third, doubts about Ms Patel’s compliance with the Code and the BARs fell to be considered in light of her breach in 2017 whilst she was Secretary of State for International Development. The Guardian article quoted in the decision notice at [5] recorded that, on 6 November 2017, “A No 10 spokesman confirm[ed] that Patel was rebuked for breaching the ministerial code.” The combination of Ms Patel’s previous breach of the Code and the serious and credible questions of breach raised by the Viasat appointment in turn raised a broader question about her approach to the behavioural standards expected of ministers.
fourth, the withheld information was likely to contribute to public debate about the way in which the Code and the BARs were enforced, including:
- 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