[2025] UKUT 114 (AAC)

I am satisfied that there was a clear transparency and accountability deficit in this case in relation to in relation to Mrs Patel’s compliance with the Code and the BARs in taking up the Viasat appointment.

In the first place, ACOBA did not comment at all on Mrs Patel’s retrospective application. ACOBA only published one letter (in July 2019), which was clearly written without knowledge that she had sought its advice retrospectively.

As the letter stated (with emphasis added)

“You approached the Committee about taking up an appointment as a Strategy Adviser to Viasat Inc.

...

When a former Minister takes up a particular appointment or employment, there should be no cause for any suspicion or impropriety.

...

You seek to take up an appointment as a Strategic Adviser at Viasat Inc (Viasat). You told the Committee your role will involve providing strategic business advice in Asia and will not involve any UK work, UK Government work, or advocacy on Viasat’s behalf.

...

I should be grateful if you would inform us as soon as you take up this role, or if it is announced that you will do so ... We shall otherwise not be able to deal with any enquiries, since we do not release information about appointments that have not been taken up or announced. This could lead to a false assumption being made about whether you had complied with the Rules and the Ministerial Code.”

It is true that Mr Madden gave evidence that ACOBA was not concerned with breaches of the BARs at the time of the Viasat appointment. It was, however, exercising advisory functions in 2017 and 2018 when Mr Osborne and Mr Johnson made retrospective applications, as well as in 2019 when Mrs Patel took up the Viasat appointment, and it made clear its position in relation to those earlier matters. Thus the letter of July 2019 to Mrs Patel also explained that

“[i]t is the Committee’s role to advise on the conditions that should apply to appointments or employment under the Government’s Business Appointment Rules for Former Ministers”.

Were it the case that I accepted Mr Madden’s evidence that ACOBA had no responsibility for advising on breaches of the BARs at the time, that would in fact add further weight to the ICO’s submission that there was a clear transparency and accountability deficit in relation to the Viasat appointment.

The absence of any such advice from ACOBA therefore contrasts strikingly with its previous decisions to censure first Mr Osborne, following his appointment as the editor of the Evening Standard in March 2017 and secondly Mr Johnson for making a retrospective application in respect of his appointment with The Telegraph, following his resignation as Foreign Secretary in July 2018.

In the former case ACOBA remarked in its letter of 28 April 2017

“You submitted your application on 13 March. The Committee considers it to be a matter of regret that your appointment as Editor was announced by the Evening Standard on 17 March, just days later and before the Committee had an opportunity to make the necessary enquiries, consider your application, and provide its advice. You informed the Committee that you had no involvement in the timing of the announcement, which you assured the Committee was made by your prospective employer due to your appointment becoming known to other media organisations. The Committee also notes that the press statement issued by the PR firm working for ESI Media (parent company of the Evening Standard) stated: “As required of former ministers, Mr Osborne is seeking the advice of the Advisory Committee on Business Appointments on his appointment.” However the Committee is very concerned that despite the press statement noting you were still seeking the Committee’s advice, you subsequently signed a contract of employment with the Evening Standard on 20 March - without having received the Committee’s advice. It was not appropriate for you to do so. You did not disclose any intention to do so to the Committee when you originally submitted your application, nor have you provided an explanation for this during the course of the Committee’s consideration. This is not in compliance with the Business Appointment Rules, which state that former Ministers ‘must abide by the advice of the Committee’ – advice which you were yet to receive.”

In the latter ACOBA remarked in its letter of 8 August 2018

“You resigned as a Minister on 9 July.

It became public knowledge you would be taking up a role when The Telegraph started to advertise your ’new weekly column’ on the weekend of 14 and 15 July 2018.

You have confirmed that you signed a contract with The Telegraph on 12 July 2018, yet the Committee did not receive your application until 26 July 2018.

The Committee considers it to be unacceptable that you signed a contract with The Telegraph and your appointment was announced before you had sought and obtained advice from the Committee, as was incumbent on you leaving office under the Government’s Business Appointment Rules.

The Rules apply by virtue of the Ministerial Code, paragraph 7.25 of which states that [see above]

Failure to seek advice before The Telegraph made public you would be taking on this work and before signing a contract was a failure to comply with your duty to seek advice.

The Government has confirmed that all ministers are asked to sign the Ministerial Code on entering ministerial office. Further, in January 2018, the Ministerial Code was updated and Ministers were required to confirm in writing that they had read the Code and understood their obligations under it.

...

The Government’s Business Appointment Rules for former Ministers specify that retrospective application will not normally be accepted. To fulfil the remit given to it by Government, the Committee needs to be able to consider an application fully and freely before offering its advice. It is impossible to do this in a way that will command public confidence if an appointment has already been announced and/or taken up ...

In all the circumstances, the Committee refuses to provide retrospective advice for this appointment.”

(It was this factor which served to distinguish the case from the instant one, as the ICO explained in his decision notice FS50795901 of 15 October 2019.)

“51.

The Commissioner considers, in all the circumstances of the case, that the public interest in maintaining the exemptions outweighs the public interest in disclosure of the withheld information. The Commissioner is satisfied that the public interest in transparency and accountability in this matter has been appropriately and proportionately met by ACOBA’s publishing of its letter to Mr Johnson of 8 August 2018. The information contained in that letter reflects the withheld information and the latter would not disclose any further explanation, justification or defence made by Mr Johnson for his failure to follow the Rules. Had ACOBA not placed such information in the public domain, then the withheld information in this matter would have assumed a greater weight and significance.”)

The transparency and accountability deficit is compounded by the fact that the Prime Minister did not make any public statement about whether or not Mrs Patel had complied with the Code. Indeed it is apparent from Mr Madden’s evidence that the Prime Minister did not initiate any investigation. As Mr Madden explained in his 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.” That was in marked contrast to the statement made in response to Mrs Patel’s resignation in 2017 and the exchange of letters between her and Mrs May in the aftermath of that resignation.

I agree with Mr Perry that the Cabinet Office’s submission that transparency and accountability was provided by Mrs Patel registering the Viasat appointment with the Register of Members’ Financial Interests before she submitted her application to ACOBA is untenable. It is obvious from the extracts from the letter cited above that ACOBA was unaware of the appointment when it sent the July 2019 letter. In addition, the relevant version of the Register of Interests ran to almost 500 pages and it was not reasonable to expect ACOBA to review it. It is true that the Register is assembled in alphabetical order, so it would not require a detailed toothcombing search to find the relevant entries, but I agree with Mr Perry that ACOBA should not as a matter of principle (rather than of practicality) be expected to proceed on the basis that there has not been full and frank disclosure by the applicant and that it must double check what the applicant has said to it by referring to the Register or other documentation.

Mr Coppel KC argued that it was crystal clear and in the public record when Mrs Patel took up the appointment with Viasat, but the crucial point is that ACOBA should not as a matter of principle be expected to proceed on the basis that there has not been full and frank disclosure by the applicant and that it must double check what the applicant has said to it by referring to the Register or other documentation. ACOBA should not be required to piece together parts of a jigsaw puzzle. Nor should the public.

Moreover, it is plain from ACOBA’s Annual Report (see paragraph 20 above) 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.”

In this case, however, there was no published correspondence from ACOBA holding Mrs Patel to account for her retrospective application. ACOBA’s letter to her in July 2019 does not criticise her for making a retrospective application because at the time at which it provided its advice, it was clearly unaware that she had done so.

Mr Coppel KC also relied on the written evidence of Mr Madden, who 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, in this case there was no identifiable process of investigation into, or conclusion concerning, Mrs Patel’s compliance with the rules. FOIA therefore plays an important role in providing the transparency and accountability which was lacking through other means. It is not some sort of covert or “backdoor mechanism for accountability”. On the contrary, as Lord Walker said in BBC v Sugar at [76], there is a strong public interest in the press and the general public having the right, subject to appropriate safeguards, to require public authorities (and, I would add, Ministers) to provide information about their activities. FOIA adds to parliamentary scrutiny a further and more direct route to a measure of public accountability; it does not subvert it.

I agree with Mr Perry that the position might well have been different if there had been a Prime Ministerial investigation of the circumstances surrounding Mrs Patel’s appointment, an ACOBA letter following up the matter when it became clear that the application had indeed been made retrospectively, a statement in the House of Commons by Mrs Patel in the light of such investigation and correspondence, a response to the Opposition, no previous allegation of breach of the Code, a much more complicated factual matrix admitting of a number of interpretations of the evidence and conflicting views amongst the civil servants charged with investigating the matter, but there was not.

Indeed, Mr Madden himself, in cross-examination accepted that there would be exceptional cases in which disclosure would be ordered:

“Q. And what I wanted to understand is whether you think that there are exceptional cases where information will be disclosed under FOIA or whether officials should have an absolute comfort that they’re going to have confidentiality in all cases?

A. I don’t, I don’t accept that there should be an absolute right of confidentiality. FOIA exists for a purpose, it’s a noble purpose, and of course there is a balance always to strike between the public interest of disclosure, notwithstanding all the provisions of the Act, but then that does have to be balance against the public interest of not undermining certain aspects which would be brought about as a result of disclosure.

Q. So, civil servants know that in certain cases their communications may be disclosed?

A. Yes. I wouldn’t want you to go away with the impression that civil servants expect an absolute right of confidentiality in their work.

Q. Yes. So, we can sort of debate what the standard is, but what you appear to be saying in your statement, and what you appear to be saying now, is that there will be exceptional or unique cases where disclosure should take place. Why, in your view, is this not an exceptional case where disclosure should take place?

A. For the reasons I’ve set out in my witness statement; I feel that the, that it would have an impact on the effective conduct of public affairs. Officials are required, officials need a safe space to be able to provide free and frank advice to ministers. Now, all of this operates within the context of FOIA, obviously, but that’s why the exemptions are there, to protect certain functions, and then we need to strike the right balance between the public interest.

Q. Right, so based on that answer, what you’re saying is that the exceptional cases are ones where disclosure wouldn’t result in any significant chilling effects; loss of candour, loss of a safe space. Is that an accurate representation of your position?

A. Yes, I think so.

Q. And, again, a hypothetical question; if the Tribunal here were to recognise in its judgment that the facts of this case were somehow unique or unusual or exceptional and ordered disclosure on that basis, how would that judgment, and the contents of that judgment, impact on your assessment of the risk of a chilling effect?

A. On what basis would you say this case is exceptional, sorry?

Q. Well, I think that’s a matter for submissions later and we’ll come on to that, but just assume, for sake of argument, the Tribunal says this case is unusual or exceptional and we’ve ordered disclosure, how would that impact civil servants; would they be at a lesser risk of a chilling effect or is the risk the same?

A. The risk, the risk would exist, but we, we would seek, well, we would implement the judgment, but the risk would remain.

Q. But would the risk be unchanged?

A.

I don’t see how the judgment would change the risk.”

In those circumstances I am satisfied that the ICO was entitled to state that

“87.

However, as the Cabinet Office rightly note, Ministers are public figures, with huge influence and power on public policy and decisions that affect citizens’ everyday lives. The public rightly expect Ministers to behave in a manner which respects the rules and codes of conduct which Ministers agree to follow and adhere to. Therefore, where evidence suggests that a Minister may not have followed or adhered to the BARs or the Ministerial Code, they should expect a certain degree of legitimate and necessary transparency and accountability in relation to their actions or conduct.”

That seems to me to be entirely correct as a matter of principle and to encompass matters in a nutshell.

In my judgment, the ICO was therefore also entitled to conclude that

“101.

In respect of the serious matter which underlies the complainant’s request, namely, the allegation that in failing to approach ACOBA for advice before taking up her role at Viasat, Ms Patel breached the Rules and therefore the Code, there has been, to date, no due transparency or accountability. There has been no published letter to Ms Patel from ACOBA, reprimanding her for her retrospective application, as there usually is in such cases. ACOBA’s letter to Ms Patel of July 2019 cannot, for the reasons explained, provide any such transparency or accountability. Furthermore, to the best of the Commissioner’s knowledge, there has been no public announcement or statement from the Cabinet Office as to the outcome/conclusion of the consideration of Mr Trickett’s complaint (as reported in the press) to the Prime Minister about Ms Patel having allegedly breached the Code.

102.

In the absence of the usual ACOBA letter, or published statement from the Cabinet Office, there is no transparency or accountability in respect of a serious matter which clearly requires both. The Commissioner considers that this notable and unusual lack of transparency and accountability risks undermining public confidence in being assured that government handles such allegations in a robust and consistent manner and risks strengthening a possible public perception ... that the Home Secretary may be being protected from the consequences of her actions or behaviour ...

103.

Having had sight of the withheld information, the Commissioner considers that its disclosure would provide the valuable transparency and accountability, that is currently missing (and shows no sign of being provided in future) in respect of the serious allegation made against Ms Patel in respect of her dealings with ACOBA regarding her previous Viasat role. It is important to be clear that reputational harm to ministers is not a relevant public interest argument/consideration in relation to section 36.”

A case in which there are serious and credible allegations of a potential breach of the rules, coupled with the absence of a Prime Ministerial investigation of the circumstances surrounding the appointment under scrutiny, the absence of an ACOBA letter following up the matter when it became clear that the application had been made retrospectively, the absence of a Parliamentary statement by the minister in question, the absence of a response to the Opposition and a previous incident where it was accepted that action had fallen short of ministerial standards, is not a “run of the mill” case.