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Freedom of Information Act 2000 (Section 50) Decision Notice

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Freedom of Information Act 2000 (Section 50) Decision Notice Reference: FS50345951 Freedom of Information Act 2000 (Section 50) Decision Notice Date: 29 June 2011 Public Authority: The Cabinet Office Address: 70 Whitehall London SW1A 2AS Summary The complainant asked the Cabinet Office to provide all information it held dating from 1 January 1998 to 31 December 2000 relating to the awarding of a peerage to Lord Ashcroft. The Cabinet Office refused the request on the basis of sections 21, 37(1)(b), 40(2) and 41(1). The complainant asked the Commissioner to consider the application of the latter three of these exemptions. The Commissioner has decided that a number of documents falling within the scope of the request are not exempt from disclosure on the basis of these three exemptions and therefore they need to be disclosed. The remaining information is exempt from disclosure on the basis of section 37(1)(b). The Commissioner’s Role 1. The Commissioner’s duty is to decide whether a request for information made to a public authority has been dealt with in accordance with the requirements of Part 1 of the Freedom of Information Act 2000 (the “Act”). This Notice sets out his decision. 1 Reference: FS50345951 Background 2. Michael (now Lord) Ashcroft was first nominated for a peerage by the then Leader of the Opposition, The Right Honourable William Hague MP, in March 1999. The Political Honours Scrutiny Committee (PHSC), the body then responsible for considering nominations, recommended that the peerage not be awarded. 3. When nominated a second time in 2000 Lord Ashcroft was awarded a peerage. A ‘note for editors’ was issued with the press release in March 2000 announcing this; the editor’s note stated that: ‘In order to meet the requirements for a Working Peer, Mr Michael Ashcroft has given his clear and unequivocal assurance that he will take up permanent residence in the United Kingdom again before the end of the calendar year. He would be introduced into the House of Lords only after taking up that residence. These undertakings have been endorsed by the Leader of the Conservative Party and conveyed to the Prime Minister – and to the Political Honours Scrutiny Committee.’ 4. Following a period of media and parliamentary interest as to the exact nature of the undertaking given by Lord Ashcroft in March 2000, in March 2010 the Public Administration Select Committee (PASC) announced that it would be holding a one-off evidence session on propriety and peerages. The Chair of PASC, Dr Tony Wright MP, confirmed that the session would: ‘…explore the process through which Michael Ashcroft's undertaking of 23 March 2000 to take up 'permanent residence' in the UK as a condition for his introduction into the House of Lords came to be interpreted in subsequent dialogue with the Government as 'long-term residence', with likely consequent tax implications.’ 5. The PASC asked the Cabinet Office to supply any papers relating to this ‘subsequent dialogue’ along with a brief statement describing the nature of the dialogue and the identities of those directly involved or otherwise consulted. In response to this request, the Cabinet Office provided the PASC with a brief memorandum attached to which were 17 documents recording the discussions with the PHSC. However, the memorandum noted that ‘A small amount of internal correspondence between the Secretary and Committee members is not included; the conclusions are fully reflected in the letters from the Secretary to Sir Hayden Philips’. The memorandum and its attachments were placed into the public domain when it was provided to the PASC. 2 Reference: FS50345951 The Request 6. The complainant submitted the following request to the Cabinet Office on 2 March 2010: ‘Please disclose under the FOI Act: All information dating from 1 Jan 1998 to 31 Dec 2000 relating to the awarding of a peerage to Michael Ashcroft, including material relating to his suitability for this award. [Emphasis in original] This should include all of the following material if held: - any certificate referring to his political donations - any recommendations received for him to be given a peerage - any correspondence with government departments relating to whether or not he should be honoured in this way - any correspondence with any member or representative of the Political Honours Scrutiny Committee relating to whether he should be honoured in this way and (if applicable) under what conditions or circumstances - any correspondence sent to or from the Ceremonial Officer referring to Michael Ashcroft - any records or documents created or distributed by members or staff of the Political Honours Scrutiny Committee which refer to Michael Ashcroft. In terms of correspondence please include emails and memos.’ 7. The Cabinet Office responded on 31 March 2010 and explained that some of the information falling within the scope of the request was published by the PASC on 18 March 2010 and was available on its website and provided the complainant with the relevant link.1 The 1 This information can now be viewed at: http://www.publications.parliament.uk/pa/cm200910/cmselect/cmpubadm/470/470we02.ht m 3 Reference: FS50345951 Cabinet Office explained that it considered this information to be exempt from disclosure on the basis of section 21 of the Act as it was reasonably accessible to the complainant. The Cabinet Office explained that it considered the remainder of the information to be exempt from disclosure on the basis of sections 37(1)(b), 40(2) and 41(1) of the Act. 8. The complainant contacted the Cabinet Office on 8 April 2010 and asked it to conduct an internal review of its decision to withhold the information that was not in the public domain. 9. On 9 August 2010 the Cabinet Office informed the complainant of the outcome of the internal review; the review upheld the application of the exemptions as set out in the refusal notice. The Investigation Scope of the case 10. The complainant contacted the Commissioner on 24 August 2010 in order to complain about the Cabinet Office’s application of sections 37(1)(b), 40(2) and 41(1) of the Act. The complainant provided submissions to support her view that the exemptions had been incorrectly relied upon. The Commissioner has not set out these submissions here but has included them in the relevant sections of the Analysis section below. Chronology 11. The Commissioner contacted the Cabinet Office on 23 December 2010 and asked to be provided with a copy of the information that had been withheld along with submissions to support the application of the three disputed exemptions. 12. The Cabinet Office responded on 8 March 2011 and provided submissions to support its application of the various exemptions. With regard to accessing the withheld information itself the Cabinet Office informed the Commissioner that given the volume of information, and the fact that some of it was sensitive in nature, it explained that it would prefer the Commissioner to view this information in situ rather than send copies of it to the Commissioner’s office. 13. A representative of the Commissioner’s office visited the Cabinet Office on 31 March 2011 in order to view the relevant information. 4 Reference: FS50345951 14. The Commissioner contacted the Cabinet Office again on 8 April 2011 and explained that in order for him to fully consider the significant amount of information that had been withheld he had decided that he needed to actually be provided with a copy of this information rather than simply having to view it in situ. The Commissioner therefore repeated his request to the Cabinet Office to be provided with a copy of withheld information. 15. The Cabinet Office complied with this request by providing the Commissioner with a copy of the withheld information on 18 May 2011. Analysis Exemptions Section 37(1)(b) – conferring of an honour or dignity 16. Section 37 is a class based exemption, that is to say if information falls within the scope of the section it is automatically exempt; there is no need for the public authority to demonstrate any level of prejudice that may occur if the information was disclosed in order for the exemption to be engaged. 17. Section 37(1)(b) of the Act provides a specific exemption for information that relates to the conferring by the Crown of any honour or dignity. 18. The Commissioner is satisfied that all of the withheld information clearly relates to the conferring by the Crown of an honour, specifically the decision to award Lord Ashcroft with a life peerage, and thus the information falls within the scope of section 37(1)(b). 19. However, section 37(1)(b) is a qualified exemption. Therefore, the Commissioner must consider the public interest test set out at section 2(2)(b) of the Act and whether in all the circumstances of the case the public interest in maintaining the exemption outweighs the public interest in disclosing the information. Public interest arguments in favour of maintaining the exemption 20. The Cabinet Office argued that the basic tenet of the honours system rests upon confidentiality. It is fundamental to the honours system at the time when Lord Ashcroft’s peerage was awarded, as it is now, that those involved in assessing nominations can offer truthful and honest observations in confidence. The Cabinet Office also noted that Parliament recognised the peculiar nature of the honours system, and 5 Reference: FS50345951 that there may be a public interest in not disclosing information relating to honours by specifically defining as sixty years the period before which information relating to honours becomes ‘historical’ under section 63 of the Act. 21. The Cabinet Office noted that given the broad request the withheld information covered a wide range of material.
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