FOI: Victory for Transparency as Tribunal orders disclosure of former Prime Ministers expenses – Gabriel Webber

On 22 March 2016 in the case of Webber v Information Commissioner [pdf] (EA/2015/0194) the First-Tier Tribunal ordered disclosure of the details of the “Public Duty Cost Allowance” of up to £115,000 a year provided to former Prime Ministers.

Background

The Public Duty Cost Allowance is a low-key expenses scheme available to living former Prime Ministers, entitling them to a maximum of £115,000 per year, for life, “in recognition of the special position they hold in public life”.

Although totals are regularly published to the House of Commons, no other information is revealed regarding the claims made. The Cabinet Office refused an FOIA request I made to see details, and the Information Commissioner upheld [pdf] their refusal.

The balance between privacy and transparency in regard to disclosing MPs’ expenses was comprehensively settled by the High Court in 2008, following a trilogy of Freedom of Information Act (FOIA) appeals in the then Information Tribunal: Leapman [pdf], Baker [pdf] and Moffat [pdf]. And transparency came out on top.

On appeal to the Tribunal, self-represented, I referred to the decision in Leapman  ([74]) that publication of full information on MPs’ expense claims would serve:

“objectives of transparency, accountability, value for money, and the health of our democracy: … legitimate interests of considerable importance.”

I also pointed out that the allowance exists to support former Prime Ministers’ public work (hence its name) rather than their private lives. I highlighted European jurisprudence on politicians and the expectation of privacy, eg. in Jerusalem v Austria [2001] ECHR 26958/95:

“The limits of acceptable criticism are wider with regard to politicians acting in their public capacity than in relation to private individuals, as the former inevitably and knowingly lay themselves open to close scrutiny of word and deed by both journalists and the public at large. Politicians must display a greater degree of tolerance.” [38]

For the respondents, the Cabinet Office chose not to participate but the Commissioner argued against disclosure on the grounds that details of the expense claims were confidential, and that publication would intrude on data subjects’ privacy.

He sought to distinguish Leapman on the grounds that MPs were elected office-holders and so information about their finances would better inform members of the public when taking decisions at the ballot box.

Decision

The two issues before the First-tier Tribunal were:

• FOIA section 41(1), ie. was the information subject to a duty of confidence?
• FOIA section 40(2), ie. would disclosure of the information breach the Data Protection Act 1998?

The answer to both questions, according to the Tribunal, is ‘no’.

On the issue of confidentiality, Judge Anisa Dhanji found:

“The information was not provided in circumstances importing an obligation of confidence. The Appellant says, and we agree, that in a post-FOIA era, a former Prime Minister cannot reasonably have expected that he or she could claim up to £115,000 per annum, for life, from the public purse, without the public expecting there to be transparency as to what the money is being spent on.” [29]

She also ruled that even if the information had been provided in confidence, its disclosure was defensible given the public interest. Regarding the Commissioner’s attempt to differentiate Leapman, the Tribunal disagreed:

“We do not agree with the Commissioner that the public interest is any the lesser because the information is not needed for the public to exercise a decision at the ballot box. On the contrary, because the allowance is claimed by those no longer holding elected office, and because the allowance can be claimed for the rest of the former Prime Ministers’ lives, whether or not they are engaged in activities that may be perceived to be of public benefit, we consider that the public interest in seeing that the use of public money is appropriate and is properly accounted for, is arguably even greater.” [33]

As to the section 40(2) exemption in FOIA, this provides that information is exempt from release if “disclosure … would contravene any of the data protection principles”. This ultimately requires that disclosure would satisfy at least one of the conditions in the Data Protection Act 1998, Sch 2. The relevant condition in Webber was condition 6(1) which is that disclosure:

“is necessary for the purposes of legitimate interests pursued by … the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.”

The Tribunal held that, given their previous findings regarding former PMs’ expectations and the public interest, this condition had clearly been met.

Since neither purported exemption was actually engaged, the Tribunal ordered disclosure. The Commissioner and the Cabinet Office have 28 days in which to appeal.

Comment

In many ways unsurprising, this decision confirms that people who choose, voluntarily, to put themselves into the public eye and to accept money provided by the taxpayer, cannot expect a free ride when it comes to transparency.

Along with the three MPs’ expenses cases discussed above, it sits well alongside Independent Parliamentary Standards Authority v Information Commissioner and Leapman [2015] EWCA 388 in underlining the critical importance of the public itself being able to assess the genuineness of politicians’ expense claims.

But unlike IPSA, the question here is not just about the claims’ genuineness but about their utility. There are currently three living former Prime Ministers. None of them are known to be struggling financially; one is known to be really quite wealthy.

The public needs to be able to assess whether paying out around £500,000 per year to Gordon Brown, Tony Blair and John Major is a sensible use of its tax revenue at a time of austerity – and, indeed, whether the very existence of a non-statutory expense account for retired politicians is a good idea. True, successive PMs of both parties have chosen to maintain the Public Duty Cost Allowance… but after all, every Prime Minister one day becomes a former Prime Minister.

The First-tier Tribunal decision in Webber is also a pleasing complement to the Upper Tribunal’s recent decision in Haslam v Information Commissioner and Bolton Council [2016] UKUT 139 (AAC), in which Upper Tribunal Judge Markus QC held that it would not be unfair to a local councillor to disclose that they had received a court summons for repeated failure to pay their council tax. For more on Haslam, see coverage from Panopticon, The Bolton News, and Wiggins solicitors.

It is now beyond all doubt and clear to those who choose to accept public office: the direction of travel is towards openness and away from individual privacy and shady confidentiality agreements.

It is wise to remember the words of Mason J in Commonwealth of Australia v John Fairfax & Sons Ltd [1980] HCA 44:

“It can scarcely be a relevant detriment to the government that publication of material concerning its actions will merely expose it to public discussion and criticism. It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action.” [27]

Gabriel Webber is a freelance journalist and frequent Freedom of Information requester. He blogs at Gabrielquotes and can be found on Twitter as @gabrielquotes