Should public know how MPs spend their money?

(1)
From The TimesMay 22, 2008

Flawed system requires full transparency
Queen’s Bench Divisional Court
Published May 22, 2008
Corporate Officer of the House of Commons v Information Commissioner and Others
Before Sir Igor Judge, President, Lord Justice Latham and Mr Justice Blake
Judgment May 16, 2008

Shortcomings in transparency and accountability in the system of paying additional costs allowances to Members of Parliament justified full disclosure of detailed information concerning those payments of their residential expenses.

The Queen’s Bench Divisional Court so held when dismissing an appeal by the Corporate Officer of the House of Commons against a decision of the Information Tribunal, on February 26, 2008, to order full disclosure of details of MPs’ residential expenses submitted in respect of the additional costs allowance, payable to those who represented constituencies outside London or outer London constituencies.

The Information Commissioner was the first respondent and Ms Heather Brooke, Mr Ben Leapman and Mr Jonathan Michael Ungoed-Thomas, who had originally applied for information under section 1 of the Freedom of Information Act 2000, were the other respondents.

Mr Nigel Giffin, QC and Miss Karen Steyn for the appellant; Mr James Goudie QC and Mr Akhlaq Choudhury for the Information Commissioner; Mr Hugh Tomlinson, QC for Ms Brooke; Mr Simon McKay, solicitor, for Mr Leapman; Mr Philip Coppel for Mr Ungoed-Thomas.

THE PRESIDENT, giving the reserved judgment of the court, said that in 2002 in accordance with its general obligation under section 19 of the 2000 Act, the House of Commons had published information about the total sums paid annually in respect of the additional costs allowance system.

The applicants, exercising their right to information under section 1 of that Act, requested further detailed information of the expenses.

Those applications were refused and the applicants complained, under section 50 of the 2000 Act, to the Information Commissioner, who ordered a limited breakdown of the expenses.

Acting through its Corporate Officer, the House of Commons appealed to the Information Tribunal arguing that given the existence of a letter from the Speaker to the House stating that its publication scheme met the freedom of information obligation and given the existence of the scheme itself, MPs had a reasonable expectation that detailed information would not be made available to the public. The applicants cross-appealed seeking full disclosure of the information.

The tribunal dismissed the appeal and allowed the cross-appeal holding that the additional costs allowance system was deeply unsatisfactory and its shortcomings, both in terms of transparency and accountability, were accute; furthermore, that notwithstanding the entitlement of MPs to their privacy, the disclosure was warranted and should be given.

The corporate officer appealed to the Divisional Court on the grounds that the tribunal had misdirected itself by failing to recognise the reasonable expectations of the MPs and that individual residential addresses should be exempt from disclosure under section 40 of the 2000 Act since disclosure was neither fair nor lawful and therefore contravened the first data protection principle in Part 1 of Schedule 1 to the Data Protection Act 1998, given that it was neither proportionate nor necessary within the meaning of paragraph 6(1) of Schedule 2 to the 1998 Act.

His Lordship said that the tribunal had recognised and properly balanced all the necessary elements to the decision-making process and there was no basis to justify interfering with its decision.

In the light of the importance of the issues, however, the court would give its own judgment on them.

To the extent that it might have been suggested that information beyond the publication scheme would never be disclosed, such a representation would conflict with the fundamental purpose of requests under section 1(1) of the 2000 Act, which was distinct from the obligation to provide information imposed under section 19 of that 2000 Act.

MPs could not conduct their affairs on the basis that recently enacted legislation did not apply to them nor could they expect that the House was permitted to dispense with such legislation.

To the extent that it was suggested that the information would not normally be disclosed, it was incumbent on MPs to make additional costs allowance claims consistently with the rules in effect at the time of making them.

In any event, once it had emerged that the system was deeply flawed, public scrutiny of the details of individual claims was inevitable.

With respect to the balance between MPs’ privacy and the public interest in disclosure of their residential addresses under paragraph 6(1) of Schedule 2 to the 1998 Act, there was a legitimate public interest capable of providing justification for the disclosure given the deep flaws in the additional costs allowance system identified by the tribunal which had so convincingly established the necessity of full disclosure.

If the arrangements for oversight and control of the additional costs allowance system were to be changed, then the issues of the privacy and security of MPs and their families might lead to a different conclusion.

Solicitors: Treasury Solicitor; Mr Mark Thorogood, Information Commissioner’s Office; Simons Muirhead & Burton; McKay Law; Bates Wells & Braithwaite LLP, London.

(2)
Gary Slapper in his column:

This isn’t a story of judges interfering with the supremacy of Parliament. There is a law to prevent that: the Bill of Rights 1689. That was passed to stop royal power trying to control and intimidate Parliament, and it says that proceedings in Parliament “ought not to be impeached or questioned in any Court”. But all that the High Court did last week was rule that once an Act has been passed, MPs can’t exempt themselves from it. They must comply with the Freedom of Information Act however embarrassing that is for them.

HOME SECRETARY v BRITISH UNION FOR THE ABOLITION OF VIVISECTION & ANR

Last Updated: 11:45PM BST 14/05/2008
Queen’s Bench Division Eady J April 25, 2008
Queen’s Bench Division

Eady J

April 25, 2008

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Animal research organisations – Animal welfare – Confidential information – Data protection – Privacy – Public interest – Requests for information – Vivisection – s. 24 Animals (Scientific Procedures) Act 1986 – Duty of confidence – Misuse of private information – Breach of confidence – Animals (Scientific Procedures) Act 1986 – S. 24 Animals (Scientific Procedures) Act 1986 – s. 41 Freedom of Information Act 2000 – s. 44 Freedom of Information Act 2000 – Freedom of Information Act 2000 – Art. 8 European Convention on Human Rights 1950 – Art. 10 European Convention on Human Rights 1950

FACTS

The appellant secretary of state appealed, pursuant to the Freedom of Information Act 2000 s. 59, against a decision of the Information Tribunal. The breeding and supply of animals for scientific procedures was governed by the Animals (Scientific Procedures) Act 1986 and the Home Office was responsible for related regulation.

Applications to use animals for research had to be submitted to its Animal Scientific Procedures Division for scrutiny before a decision to grant a project licence could be made. Statutory requirements meant that material that was commercially sensitive or useful to competitors and details of locations that could be sensitive for security reasons might have to be included.

The division responsible introduced a policy that tried to balance confidentiality with freedom of information requirements: applicants were asked to submit abstracts of their projects for the Home Office website.

Shortly after the new policy began, the first respondent (B) sought, under the 2000 Act, further information on certain applications. Consequently, information extra to the abstracts that was not exempt under the 2000 Act was provided. B submitted to the tribunal that under s. 24 of the 1986 Act, a penal provision, any information qualifying as “given in confidence” had to be such that it would be an actionable breach for it to be revealed in response to a request under the 2000 Act.

The tribunal upheld that view, interpreting s. 24 as having a similar meaning to s. 41 of the 2000 Act and directing the Home Office to reconsider its interpretation of s. 44 of the 2000 Act. The main issue in the instant case was how far information needed to be made available to the public, given that it had a legitimate interest in knowing what was taking place with regard to animal research, and given the right to make requests under the 2000 Act.

ISSUE

How far information needed to be made available to the public.

HELD (appeal allowed)

(1) The tribunal had relied on the principles of Coco v AN Clark (Engineers) Ltd [1968] FSR 415 Ch D, which provided an exclusive definition such that, whenever “in confidence” appeared in a statute, the legislature must have had those principles in mind. That was not necessarily the case and much depended on context.

The tribunal also read the notion of “public interest” into s. 24 of the 1986 Act, imposing an onerous obligation to weigh up its existence in every case of prima facie confidentiality. The modern law of confidence was wider than the principles applying where an equitable duty of confidence arose, or where there were commercial secrets; it could also arise by express or implied agreement, and presumably under a statutory duty, and there was also a distinction between “old-fashioned breach of confidence” and the modern tort of “misuse of private information”, Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] 2 AC 457 and McKennitt v Ash [2006] EWCA Civ 1714, [2008] QB 73 considered.

It was important in the instant case to remember the need to look at the jurisprudence of the European Convention on Human Rights 1950 art. 8 and art. 10. The tribunal had not addressed those developments and so had proceeded on an incomplete legal basis.

(2) There was tension between s. 24 of the 1986 Act and the aim of greater public access to information that underlay the 2000 Act. It was clear that the government deliberately retained s. 24 of the 1986 Act when repealing provisions before the 2000 Act, and did so as the scientific community had been concerned about confidentiality if it was repealed.

Thus, the court should probably assume that s. 24 was included to provide additional or parallel protection to that in s. 41 of the 2000 Act and its effect should not be diluted. The court should not assume that there was no such intention.

Parliamentary materials gave no answer in the instant case, let alone one that pointed to the tribunal’s interpretation, and the tribunal had erred in concluding that the history of s. 24 of the 1986 Act lent it support.

(3) The instant court’s interpretation was based on the statutory wording, its context, the modern law of confidence and the arguments of the parties.

Accordingly, the information sought by B was obtained by the Home Office division in the exercise of its functions under the 1986 Act; the relevant official reasonably believed that it had been “given in confidence” at the time given; the disclosure sought from the Home Office would not be for the purpose of exercising its functions under the 1986 Act; the terms of s. 24 of the 1986 Act as it stood meant that disclosure was prohibited and would constitute a criminal offence; and the exemption in s. 44 of the 2000 Act applied to the information sought.

Karen Steyn (instructed by Treasury Solicitor). Daniel Alexander QC (instructed by David Thomas) for the first respondent. Akhlaq Choudhury (instructed by Geraldine Dersley).