[2025] UKUT 114 (AAC)

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 ICO was at pains throughout the decision notice to acknowledge that point (at [63-64] and [69]) 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 (at [91]). Instead, the decision notice proceeded on the basis that serious and credible questions had been raised about Ms Patel’s compliance with the BARs and the Code in relation to the Viasat appointment. Transparency and accountability in relation to those questions weighed heavily in favour of disclosure, in particular given the clarity of the BARs rules in issue as well as the fact that serious and credible questions regarding Ms Patel’s compliance with the Code had been raised on other occasions. In relation to alleged breaches of the Code, the ICO considered that his approach was consistent with FDA, where at [41] the Divisional Court rejected the suggestion that “the sole purpose of the Ministerial Code is to determine the standards that ministers must meet in order to retain the confidence of the Prime Minister”. Although the Tribunal’s approach to the matter was not altogether clear, the ICO considered that it was wrong at [39] for the Tribunal to conclude the Cabinet Office was “disingenuous” (and wrong) to “place weight” on the Prime Minister’s role in enforcing the Code. For the same reasons, the Tribunal was also wrong at [45] to refer to bullying allegations against Ms Patel as “the third breach of the Ministerial Code”.

the Tribunal took a different view to the ICO of the resignation in February 2020 of Sir Philip Rutnam, the then Home Office Permanent Secretary. The ICO had relied on the resignation in the decision notice as part of the overall context of bullying allegations against Ms Patel. In his view, those allegations raised serious and credible questions about her compliance with the Code on a further occasion. In contrast:

the Tribunal appeared to have drawn a direct link between the bullying allegations and the Cabinet Office’s chilling effect arguments in concluding that Ms Patel’s alleged conduct might have impacted on the way civil servants advised on the Viasat appointment at [43-44]. Similarly, at [47] the Tribunal appeared to have concluded that the Cabinet Office’s chilling effect arguments were specifically undermined by the circumstances of Sir Philip’s resignation. 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 considered the bullying allegations against Ms Patel alongside the fact that in 2017 a Number 10 spokesperson stated to the press that Ms Patel had breached the Code during her role as Secretary of State for International Development. The Tribunal cursorily accounted for the 2017 incident at [42], when it referred to “a Minister dismissed by Mrs May apparently for breaching the Ministerial Code”. It did not otherwise consider that point as part of its reasoning. Conversely, it relied heavily on the Rutnam resignation and bullying allegations, for example, at [45].

the Tribunal appeared to have placed weight on allegations that Mr Johnson had acted in breach of the Code and the BARs when he was appointed as a columnist at The Telegraph following his resignation as Foreign Secretary in July 2018, for example, at [42]. The ICO did not argue before the Tribunal that that alleged breach heightened the public interest in disclosure of all of the withheld information – e.g. because Mr Johnson may have had self-interested political motivations for concluding that Ms Patel had not acted in breach of the rules. Instead the ICO’s position was that:

a comparison could be drawn with the way in which ACOBA censured Mr Johnson for his retrospective application regarding The Telegraph appointment with the fact that it did not comment on the timing of Ms Patel’s Viasat appointment, see the decision notice at [81].