House of Commons Committee on Standards and Privileges Jacqui Smith
Ninth Report of Session 2008–09
Report and Appendices, together with formal minutes
Ordered by The House of Commons to be printed 12 October 2009
HC 974 Published on 12 October 2009 by authority of the House of Commons London: The Stationery Office Limited £0.00
The Committee on Standards and Privileges
The Committee on Standards and Privileges is appointed by the House of Commons to oversee the work of the Parliamentary Commissioner for Standards; to examine the arrangements proposed by the Commissioner for the compilation, maintenance and accessibility of the Register of Members’ Interests and any other registers of interest established by the House; to review from time to time the form and content of those registers; to consider any specific complaints made in relation to the registering or declaring of interests referred to it by the Commissioner; to consider any matter relating to the conduct of Members, including specific complaints in relation to alleged breaches in the Code of Conduct which have been drawn to the Committee’s attention by the Commissioner; and to recommend any modifications to the Code of Conduct as may from time to time appear to be necessary.
Current membership Rt Hon Sir George Young Bt MP (Conservative, North West Hampshire) (Chairman) Rt Hon Kevin Barron MP (Labour, Rother Valley) Mr Andrew Dismore MP (Labour, Hendon) Nick Harvey MP (Liberal Democrat, North Devon) Rt Hon Greg Knight MP (Conservative, East Yorkshire) Mr Elfyn Llwyd MP (Plaid Cymru, Meirionnydd Nant Conwy) Mr Chris Mullin MP (Labour, Sunderland South) The Hon Nicholas Soames MP (Conservative, Mid Sussex) Mr Paddy Tipping MP (Labour, Sherwood) Dr Alan Whitehead MP (Labour, Southampton Test)
Powers The constitution and powers of the Committee are set out in Standing Order No. 149. In particular, the Committee has power to order the attendance of any Member of Parliament before the committee and to require that specific documents or records in the possession of a Member relating to its inquiries, or to the inquiries of the Commissioner, be laid before the Committee. The Committee has power to refuse to allow its public proceedings to be broadcast. The Law Officers, if they are Members of Parliament, may attend and take part in the Committee’s proceedings, but may not vote.
Publications The Reports and evidence of the Committee are published by The Stationery Office by Order of the House. All publications of the Committee (including press notices) are on the Internet at: www.parliament.uk/sandp.
Committee staff The current staff of the Committee are Mr Steve Priestley (Clerk), Miss Rhiannon Hollis (Second Clerk) and Ms Jane Cooper (Committee Assistant).
Contacts All correspondence should be addressed to The Clerk of the Committee on Standards and Privileges, Journal Office, House of Commons, London SW1A 0AA. The telephone number for general enquiries is 020 7219 6615.
Jacqui Smith 1
Contents
Report Page
Jacqui Smith 3 Introduction 3 Ms Smith’s nomination of her main home 3 The Commissioner’s findings 4 Ms Smith’s evidence 6 Conclusions 7 Recommendation 10 Ms Smith’s claim for media services 11 The Commissioner’s findings 11 Ms Smith’s evidence 12 Conclusion 13
Appendix 1: Memorandum from the Parliamentary Commissioner for Standards 17
Appendix 2: Letter to the Clerk of the Committee from Jacqui Smith, 18 September 2009 106
Formal Minutes 110
Jacqui Smith 3
Jacqui Smith
Introduction
1. We have received a memorandum from the Parliamentary Commissioner for Standards, reporting on the outcome of his investigations into two complaints against the Rt hon Member for Redditch, Jacqui Smith. The memorandum is appended to this Report.1
2. The first of the two complaints against Jacqui Smith was made in February 2009 by Mrs Jessica Taplin, following media reports that Ms Smith was spending fewer nights at her designated main home in London than she was spending at her second, constituency home.2 The complaint was that Ms Smith had wrongly designated her main home for the purpose of claiming Additional Costs Allowance (ACA) in respect of her second home.
3. A separate complaint was made by Mr Robert Waterhouse in March 2009, again following media reports. This complaint was that Ms Smith had claimed against her Additional Costs Allowance for the cost of films viewed on cable television at her second home.3
4. We supplied Ms Smith with a copy of the Commissioner’s memorandum on 15 September. In accordance with our usual practice, we invited Ms Smith to send us her comments on the memorandum. Ms Smith replied on 18 September. Her evidence is published as Appendix 2 to this Report.
5. The Commissioner’s memorandum, Ms Smith’s evidence and this Report cover both complaints.
Ms Smith’s nomination of her main home
6. During the period covered by the complaint from Mrs Taplin, the House’s rules stipulated that unless the identity of a Member’s main home was a matter of fact (because the Member had only one home in the United Kingdom), the main home would “normally be the one where you spend more nights than any other.”4 From 1971, a Member who was also a government Minister and who had more than one home in the United Kingdom was obliged to designate his or her London residence as the main home. This requirement was removed in February 2004, from when Ministers were subject to the same rules as other Members and were asked to make a fresh nomination of their main home.5
7. In nominating her main home from 2004 onwards, Ms Smith was therefore expected to have regard to the number of nights she spent in each of her two homes, one of which was in London, the other in her constituency of Redditch. Having designated her main home, Ms Smith, like other Members, was able to claim against Additional Costs Allowance
1 Appendix 1 2 Appendix 1, WE3 3 Appendix 1, WE39 4 Appendix 1, para 18 5 Appendix 1, WE6
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(ACA) for certain expenses relating to her use of her second home which were “wholly, exclusively and necessarily incurred … for the purpose of performing Parliamentary duties.”6
8. As the Commissioner notes, the House put in place new rules relating to the designation of main homes with effect from April 2009.7 However, the complaint against Ms Smith relates to the period February 2004 to March 2009 and, like the Commissioner, we have considered this case against the rules and guidance in place at that time.
The Commissioner’s findings
9. When first elected to the House in 1997, Ms Smith identified her constituency home as her main home.8 As a Minister in the Government from July 1999, Ms Smith was required to designate her London residence as her main home. When this requirement was removed in 2004, Ms Smith left in place the designation of her London home as her main home.9 She asked the House of Commons Department of Finance and Administration (DFA) in June 2007 to confirm that this was reasonable, given that her family was based in Redditch but that she spent the majority of her time in Westminster. The DFA agreed with Ms Smith’s assertion that it was reasonable for her to continue to claim the allowance against her constituency home given her ministerial responsibilities required her to spend the majority of her time in Westminster.10
10. The Commissioner has established that Ms Smith had two homes during the period in question. At different times, Ms Smith lived both in her family home in the constituency and in the house owned by her sister in London. Ms Smith was the guarantor of the mortgage of the London property, where she had sole use of a room and shared use of the remainder of the house. Ms Smith also paid her sister rent and contributed to household bills The Commissioner concludes that Ms Smith used her sister’s house as a home in the normal sense in which that term is understood. It was “more than some sort of temporary room in a stranger’s house.”11
11. The Commissioner notes that Ms Smith’s claims against the Additional Costs Allowance for her Redditch home were £22,110 in 2006-07; £22,948 in 2007-08 and £19,182 in 2008-09. Ms Smith claimed for mortgage interest, utility bills, council tax, telephone, servicing and maintenance, repairs and cleaning.12
12. On the evidence available, the Commissioner has concluded that Ms Smith spent more nights at her London home than at her constituency home between 11 May 2005 and 27 June 2007. He has also concluded that Ms Smith spent more nights at her constituency home than at her London home between 28 June 2007 and 31 March 2009. Ms Smith has
6 Appendix 1, para 14 7 Appendix 1, para 22 8 Appendix 1, para 141 9 Appendix 1, para 142 10 Appendix 1, para 144 and WE7, WE8 11 Appendix 1, para 162 12 Appendix 1, para 143
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agreed with this conclusion.13 The figures which underlie it are based on a reconciliation between witnesses’—including Ms Smith’s—personal recollections, the evidence provided by Ms Smith’s personal and ministerial diaries, and the evidence of police records (ie, records of the protection provided to Ms Smith by the police when she was Home Secretary).14
13. As noted above, the rules of the House at the time stated that “the location of a Member’s main home is normally a matter of fact.”15 The Commissioner and Ms Smith agree that she had a choice as to which of her homes to identify as her main home for the purposes of claiming ACA.16 It is clear, then, that the location of Ms Smith’s main home was not an objective “fact”.
14. The Commissioner notes that the rules provided that when the location of a Member’s main home was not a simple matter of fact, the objective test was normally one of where the Member spent more nights.17 However, the term ‘normally’ implies that there will be exceptions. We discuss this point in our conclusion, below.
15. The Commissioner considers that “the choice [Ms Smith] made was not consistent with the rules of the House.”18 He reaches this judgment on the basis of his conclusion that:
Ms Smith did not give sufficient weight either to the objective overnights test or to the need to consider whether she was an exception to the rule. … Ms Smith’s emphasis on her ministerial jobs as the determining factor in identifying her main home led to her drawing a conclusion that was both contrary to the rules and inconsistent with a normal understanding of the term “main home”.19
16. The Commissioner further concludes:
I consider therefore that the difference between the nature of the two properties and the use to which they were put by Ms Smith, including the balance of nights she spent in both properties, is such as to require me to conclude that Ms Smith’s decision to identify as her main home from April 2004 to March 2009 the home which she shared with her sister and her sister’s partner in London was not in accordance with the rules of the House at the time.
I come to this conclusion because I consider the purpose of the rule was to help the Member establish the location of their main home. It did not require them to reach an unnatural interpretation of that term. In my judgement, Ms Smith misdirected herself by focusing on the nature and location of her job (where she spent her long working day) and not the nature and location of her overnight accommodation (where she went whenever her working life allowed). As a result, Ms Smith reached a
13 Appendix 1, para 72 14 Appendix 1, para 145 and 146 15 Appendix 1, para 18 16 Appendix 1, paras 166 and 167 17 Appendix 1, para 168 18 Appendix 1, para 167 19 Appendix 1, paras 168 and 169
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mistaken interpretation of the term ‘main home’ which, on any objective view, did not fit her personal circumstances and which was therefore contrary to the purpose as well as to the letter of the rule. 20
17. In the Commissioner’s judgment, Ms Smith should have identified her constituency home as her main home throughout the period covered by the complaint.
She should have exercised the discretion given in the rules to identify the residence she shared with her family in her constituency as her main home. This would have reflected properly her personal circumstances, the nature and use of her accommodation, and the pattern of her overnight stays, in particular from May 2007, from when she spent more nights in her Redditch home than she did in London. I therefore uphold the complaint.21
Ms Smith’s evidence
18. Ms Smith has told us that for the most part, the Commissioner’s memorandum reflects her position accurately.22 In particular, she welcomes the Commissioner’s conclusion that her London home is a real home, contrary to views expressed in some sections of the media. However, Ms Smith makes clear that she disagrees with the Commissioner’s conclusions in several important respects. These can be summarised as follows:
• The Commissioner’s report “appears to be heavily influenced by subjective judgements about my personal circumstances.” • The decisions Ms Smith took when designating her main home “could only have been taken on the basis of the rules as they were then and advice that I received about those rules, on objective measures of my circumstances and the best estimate of what future circumstances were likely to be.” • The Commissioner’s conclusion that Ms Smith did not give sufficient weight to the objective overnight test is based on a retrospective judgment. • The rationale of the old rule requiring Ministers to have their main home in London was sound and provides an important precedent. • Changing the designation of the main home from London to the constituency could have been criticised as ‘flipping’. • The Commissioner’s interpretation of the rules differs from that of the Department of Resources, which advises Members on how to comply with the rules. • The Commissioner has given undue emphasis to the fact that Ms Smith owns her constituency home but rents her London home.
19. Ms Smith summarises her position thus:
As the Commissioner reports in Para 100, my argument is that I stuck by the spirit of the pre 2004 rules; tested them by checking with the Department; fulfilled their
20 Appendix 1, paras 175 and 176 21 Appendix 1, para 178 22 Appendix 2
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objective requirements and made a reasonable judgement that prospectively I was likely to spend more nights in London than in Redditch.
She concludes: “I am disappointed that this process has not led to a fairer set of conclusions, based on objective and consistent application of the rules as they were at the time.”
Conclusions
20. The Commissioner has concluded that Ms Smith was in breach of the rules from 2004 to 2009. Ms Smith argues that her actions were reasonable and defensible. In reaching our own conclusions, we need first to consider the relative weight that should be given to the overnight test and to other tests, such as the location of the Member’s family and the nature of the accommodation. We then need to reach a view on the extent to which it is fair for us to judge retrospectively Ms Smith’s actions, which, she argues, depended on a prospective judgment she made in the circumstances at the time. We also need to have regard to value for money considerations.
21. In October 2008, we reported on the Commissioner’s investigation and dismissal of a complaint against the identification of their main home by two Members (both of whom were Ministers).23 In the light of questions raised by the Commissioner in the course of that investigation, we produced a further Report, in which we set out our views on the criteria that should apply when a Member nominates his or her main home.24
22. In relation to the overnight test, we concluded in that further Report that:
The Green Book implicitly recognises that there may be circumstances where this simple objective test may not be the right one to apply, and we agree with the Commissioner that, in cases of doubt, it is reasonable to take account of a much wider range of factors. In such cases, the Commissioner suggests that the Member’s decision should reflect their particular circumstances and, having due regard to these, provide value for money for public funds. This latter test reflects one of the overall principles set out in the Green Book as applying to all ACA claims.25
We think it right to take this statement as our starting point in considering the case before us. Accepting that the identification of Ms Smith’s main home was not a straightforward matter of fact, we need to establish whether her circumstances made it reasonable to expect her to have taken account of factors in addition to the overnight test.
23. On being elected to Parliament in 1997, Ms Smith nominated her family home in Redditch as her main home and claimed ACA in respect of her London home. Ms Smith and her husband took an early decision to separate her work home from their family home.26 On becoming a Minister in 1999, she was obliged to regard her home in London as
23 Fourteenth Report, 2007-08, Conduct of Ed Balls and Yvette Cooper 24 Fifteenth Report, 2007-08, Additional Costs Allowance: Main Homes 25 Fifteenth Report, 2007-08, para 4 26 Appendix 1, para 31
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her main home. Other than becoming a Minister, however, it appears there was no substantial change in Ms Smith’s circumstances between 1997 and 2009. Ms Smith’s family continued to be based in Redditch and she continued to base herself in London whenever work required. We agree with the Commissioner’s finding that, contrary to some speculation, Ms Smith did have two homes.27
24. Ms Smith told the Commissioner that she did not change the designation of her main home following the rule change in 2004 because there had been no qualitative change in her circumstances.28 As a busy Minister, she was spending more time in London than in Redditch; and she felt it would have been difficult to justify designating her constituency home as her main home.29
25. We accept that it appears that Ms Smith spent more time in London than in Redditch, even during the period 2007-09, when she spent more nights in Redditch than in London. We also accept that the question of where Ms Smith spent her days was relevant to the nomination of her main home, albeit less relevant than the question of where she stayed overnight.
26. In his investigation of the complaint against two Members in 2008, the Commissioner concluded that “In cases of doubt, I think it is reasonable to take account of a much wider range of factors, including where a Member spends their days … .”30 However, this sentence continued by listing a number of other factors: “… how long they have been in each property or location, the nature of the accommodation, their personal and domestic circumstances and what their links are to the communities in which their two properties are located.”
27. Taking this wider range of factors into account, we understand why the Commissioner concluded that “The gravitational pull in terms of family and property is, on the basis of all the evidence I have seen, Redditch and not London.”31 We agree with the Commissioner’s conclusion that Ms Smith’s constituency home is her main home.32
28. Ms Smith had an opportunity following the rule change for Ministers in 2004 to designate her house in Redditch as her main home.33 She did not take up this opportunity. In June 2007, however, Ms Smith did seek advice from the DFA. The advice stated:
I can confirm therefore that the location of a Member’s main home may not always be where their family reside. I agree with your assertion that is reasonable to continue to claim the allowance against your constituency home given your ministerial responsibilities require you to spend the majority of your time in Westminster.34
27 Appendix 1, para 164 28 Appendix 1, WE55 29 Appendix 1, para 148 30 Fourteenth Report, 2007-08, Appendix 1, para 91 31 Appendix 1, para 174 32 Appendix 1, para 176 33 Appendix 1, WE6 34 Appendix 1, WE8
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On the basis of this advice, Ms Smith appears to have concluded that the bias towards Westminster of her working life as a Minister and MP outweighed the other factors.
29. In our view, the DFA’s advice was flawed, because in referring to “time” spent in London rather than to “nights” it underplayed the importance of the overnight test. The DFA’s advice regarding the weight to be given to the location of a Member’s family home was accurate in so far as it went, but it was neither as clear nor as complete as it should have been. The advice that “the location of a Member’s main home may not always be where their family reside” is consistent with the view that a Member’s main home would normally be where the family reside, but it failed to make this clear.
30. The advice given to Ms Smith did not live up to the statement in the letter to the Commissioner of 15 May from the current Director of Operations that “my office would always advise that where a Member’s family lives is a relevant consideration.”35 In our view, the DFA also went too far in agreeing with Ms Smith’s assertion that it was reasonable for her to continue to claim ACA in respect of her constituency home on the basis of the time she was spending on her Ministerial duties in London, without also inviting her to take into account other factors. Nonetheless, it remains a Member’s personal responsibility to ensure that his or her decisions are soundly based on all the relevant criteria.
31. Ms Smith clearly feels that she was entitled to rely on the DFA’s advice. Ms Smith could, however, have taken a broader view of her situation than she did. She could have taken into account factors in addition to where she spent her time, and she could have given greater weight to the fact that the difference between the number of nights she spent at each home was quite small. Had Ms Smith done this, she may have concluded that her ‘main home’ in the sense that most people would understand the term was the house she shared with her family, where she spent as many nights as she could—and not the house she shared with her sister and her sister’s partner, where, with few exceptions, she stayed only when the onerous demands of her work as Home Secretary required her to.
32. We agree with the Commissioner that Ms Smith was in breach of the rules of the House from 2004 to 2009 in identifying the London residence she shared with her sister as her main home, and that she should have exercised the discretion given in the rules to identify the residence she shared with her family in her constituency as her main home. However, we regard this breach in so far as it relates to the period February 2004 (when the rule relating to Ministers’ main homes was changed) until June 2007 (when Ms Smith began to spend more nights in Redditch than in London) as being less obvious than it later became. Applying the overnight test, it should also have become clear to Ms Smith at some point towards the end of 2007 that the test had not been met in the period since she became Home Secretary in June 2007.
33. Ms Smith now fully accepts that after becoming Home Secretary she was spending fewer nights in her designated main home than in her second home, although at the time she “didn’t count up the nights.”36 Ms Smith makes the point that in nominating her main home she had to make prospective judgments about how many nights she was likely to
35 Appendix 1, WE35 36 Appendix 1, WE55
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spend in London, whereas those who now sit in judgment on her are able to reach their view with retrospective (albeit approximate) knowledge of the nights she actually did spend in London and elsewhere in the period May 2005 to March 2009. This objection misses the point that it was the nature and the use made by Ms Smith of her two homes that provide the evidence of which was her main home. She should have given greater weight to the fact that the quite small difference between the number of nights spent at each home rendered that evidence inconclusive—until the point in late 2007 when it lined up behind the other evidence. From that point on there was little room for doubt, but it should have been sufficiently clear to Ms Smith even before then that she was probably an exception to the rule. That is not a retrospective judgment for us or for anyone else to reach; it is one that Ms Smith could reasonably have been expected to reach, although we recognise that she was poorly advised.
34. The question arises as to whether Ms Smith’s nomination of her London home as her main home cost the taxpayer more than the alternative courses that were open to her. If Ms Smith had nominated her Redditch home as her main home, she could not have claimed for the rent she paid to her sister because the House rules prevent a family member from benefiting from allowances. However, she could have bought her own home in London; she could have rented a home in London from a non-relative; or from June 2007 she could presumably have used a taxpayer-funded grace and favour residence in central London, as many previous Home Secretaries have done. Any of these courses could have resulted in a different claim on Additional Costs Allowance, but it is impossible to quantify what the difference in such claims might have been. We do not believe it can be established with any certainty whether the taxpayer is any worse or any better off as a result of Ms Smith’s nomination of her main home and subsequent claims against Additional Costs Allowance than would otherwise have been the case.
35. Like the Commissioner, we have applied the normal civil standard of proof—the balance of probabilities—to our consideration of this case.37 We are entirely satisfied that the Commissioner has reached a balanced judgment on the basis of his objective evaluation of the evidence. However, we also conclude that the fact that in 2007 Ms Smith sought and then acted in accordance with the advice of the House authorities is a significant mitigating circumstance.
Recommendation
36. Whilst we acknowledge that there are mitigating circumstances, Ms Smith clearly breached the rules of the House by wrongly designating her main home from 2004 to 2009. We recommend that Ms Smith apologise to the House by means of a personal statement.
37. Ms Smith accepts that she also breached the rules by failing to notify the House authorities for one year that she had changed the address of her designated main home. Ms Smith gained nothing from this lapse, and the public interest was not harmed. We therefore recommend no further action. The incident may, however, serve as a reminder
37 Appendix 1, para 153
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to all Members of their duty to inform the House authorities promptly of any relevant change in their circumstances.
Ms Smith’s claim for media services
38. Under the rules in force at the time of the behaviour which has been the subject of Mr Waterhouse’s complaint, Members of Parliament were permitted to claim under their Additional Costs Allowance for expenditure on goods and services incurred wholly, exclusively and necessarily for the purpose of performing Parliamentary duties. Guidance provided to Members in the 2006 edition of the Green Book informed them that such goods and services could include telecommunications charges, electrical equipment and a television licence for their second home.38
39. In recent years, telephone, television and internet services and hardware have increasingly been ‘bundled’ and sold as a package. Given that claims for goods and services must relate to expenditure wholly, exclusively and necessarily incurred for the purpose of performing Parliamentary duties, Members have to be careful that the package they purchase for use in their second home does not cost more than the minimum package they require for Parliamentary purposes, or that they adjust their claim accordingly. Frequently, sports and entertainment channels will be bundled with the news channels which Members are entitled to claim for at no extra cost. However, Members have been advised that claiming for the separately identifiable cost of watching sports or entertainment channels “would not be appropriate.”39
The Commissioner’s findings
40. The Commissioner has found that Ms Smith made five claims for reimbursement of her cable television, telephone and broadband package between April 2008 and March 2009.40 One of the claims was in respect of four separate months; the others each related to a single month. The claims thus related to eight months in all. In respect of each of these months, additional sums over the basic subscription were claimed for watching films or sporting events.41 In only one month, however, was a fully itemised bill which included the charges for watching films submitted with the claim. On three occasions in 2008, a copy of the same, unitemised summary page of a bill was submitted in support of separate claims for differing amounts.42
41. Ms Smith admitted that she did not see the documentation submitted in support of her claims, which were handled by her office.43 She suggested that, if she had seen the bills at the time, she would have “picked up on their unsuitability.” She regretted that the House authorities had not picked up on the one fully itemised claim which clearly contained unallowable expenditure, but she accepted full responsibility and she apologised. Ms Smith
38 Appendix 1, para 108 39 Appendix 1, para 121 40 Appendix 1, paras 126 to 128 41 Appendix 1, WE53 42 Appendix 1, paras 127 and 129 43 Appendix 1, para 134
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accepted that she had breached the rules.44 As soon as she became aware of her mistake— which was immediately before the story broke in the press and also before the Commissioner received a complaint—she repaid £400 of the £553.20 she had claimed for her cable media package. The Commissioner calculates that the sum wrongly claimed by Ms Smith was in fact £185.20.45
42. The Commissioner concludes:
Ms Smith has readily accepted that she should not have included claims for entertainment items, including paid-for films, in the claims she made for her media package against her Additional Costs Allowance. This was because such items were clearly not provided or necessary for the performance of her parliamentary duties. It was unfortunate that this mistake was not picked up by the Department of Resources on the one occasion when Ms Smith submitted a detailed bill showing these items with the claim.
But this claim for additional items was not a one-off occurrence. Ms Smith made claims above the basic package costs in each of the eight claims she made since signing up to this media package. She failed to notice that additional entertainment items were being claimed for. She did not see the itemised bill when it was included with her claims, and by her own admission, did not check that claim carefully enough. I recognise that she had many heavy responsibilities at the time, but nevertheless she clearly did not treat her claims with the care expected of all those who look for reimbursement from the public purse. She told me that she was now checking her claims more carefully.
Ms Smith has already paid a heavy price for these lapses, in terms of her public standing and the intrusion into her family life. She has also already paid back £400 of the £550 claimed over the period of the contract, which is considerably in excess of the sums represented by the additional entertainment items, which I assess to be about £185. She has apologised.
I conclude that Ms Smith was clearly in breach of the rules of the House in claiming for additional entertainment items on her media package in eight separate months in 2008-09 since these items were not necessary in the performance of her parliamentary duties. I therefore uphold the complaint.46
Ms Smith’s evidence
43. Ms Smith has confirmed in writing to us that “I accept the Commissioner’s conclusions on this and repeat my wholehearted apology that this mistake happened.”47
44 Appendix 1, WE55 45 Appendix 1, para 149 46 Appendix 1, paras 155 to 158 47 Appendix 2
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Conclusion
44. That Ms Smith wrongly claimed for unallowable expenditure is not in dispute. We welcome Ms Smith’s admission of her error and her acceptance of responsibility. These, together with Ms Smith’s early action to repay a sum in excess of that which she wrongly claimed and her apology to this Committee are, in our view, sufficient for us to regard the matter as closed and we make no recommendation for further action.
45. Once again, however, a case has come before us which illustrates both the need for Members to pay closer attention to ensuring that their claims relate only to expenditure incurred wholly, exclusively and necessarily for the purpose of performing their Parliamentary duties and the need for the relevant authorities (who from April 2010 will be independent of the House) to give clear advice and to be rigorous in checking claims.
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Appendix 1: Memorandum from the Parliamentary Commissioner for Standards
Contents Page
Rt Hon Jacqui Smith 17 Introduction 17 Second Home 17 Background 17 The Complaint 18 Relevant provisions of the Code of Conduct and Rules of the House 19 My Inquiries 21 Media Package 38 Background 38 The Complaint 38 Relevant Provisions of the Code of Conduct and the Rules of the House 39 My Inquiries 40 Findings of Fact 45 Second Home 45 Media Package 47 Standard of Proof 48 Conclusions 49 Media Package 49 Second Home 49 Did Ms Smith have two homes? 50 Did Ms Smith correctly identify her main home? 50 Written evidence received by the Parliamentary Commissioner for Standards 54 1. Extracts from article in the Mail on Sunday, 8 February 2009 54 2. Letter to the Commissioner from Mrs Jessica Taplin, 16 February 2009 54 3. Letter to the Commissioner from Mrs Jessica Taplin, 16 February 2009 55 4. Letter to Rt Hon Jacqui Smith MP from the Commissioner, 17 February 2009 56 5. Letter to the Commissioner from Rt Hon Jacqui Smith MP, 24 February 2009 57 6. Letter to all Ministers and Office Holders receiving the Additional Costs Allowance, from the Director of Operations, Department of Finance and Administration, 26 February 2004 60 7. Letter to Head of Validation Team, Fees Office, House of Commons from Rt Hon Jacqui Smith MP, 19 June 2007 61 8. Letter to Rt Hon Jacqui Smith MP from Head of Validation and Enquiry & Advice Teams, Department of Finance and Administration, House of Commons, 11 July 2007 61 9. Letter to Rt Hon Jacqui Smith MP from the Commissioner, 2 March 2009 62 10. Letter to the Commissioner from Rt Hon Jacqui Smith MP, 26 March 2009 62 11. Letter to Rt Hon Jacqui Smith MP from the Permanent Secretary, Home Office, 25 March 2009 64 12. Letter to the Permanent Secretary, Home Office from the Director of Propriety and Ethics Team, Cabinet Office, 25 March 2009 65
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13. Letter to Rt Hon Jacqui Smith MP from the Commissioner, 30 March 2009 65 14. Letter to Rt Hon Jacqui Smith MP from the Commissioner, 22 April 2009 66 15. Letter to the Commissioner of the Metropolitan Police Service from the Commissioner, 22 April 2009 67 16. Letter to the Commissioner from Assistant Commissioner Janet Williams QPM, 30 April 2009 68 17. Letter to Assistant Commissioner Janet Williams QPM from the Commissioner, 7 May 2009 70 18. Letter to the Commissioner from Assistant Commissioner Janet Williams, QPM, received 4 June 2009 70 19. Letter to Rt Hon Jacqui Smith MP from the Commissioner, 8 June 2009 71 20. Letter to the Commissioner from Rt Hon Jacqui Smith MP, 15 June 2009 71 21. Letter to Rt Hon Jacqui Smith MP from the Commissioner, 18 June 2009 72 22. Letter to Assistant Commissioner Janet Williams, QPM, from the Commissioner, 18 June 2009 72 23. Letter to the Commissioner from Assistant Commissioner Janet Williams, QPM, 3 July 2009 73 24. Letter to Rt Hon Jacqui Smith MP from the Commissioner, 7 July 2009 73 25. Letter to the Commissioner from Rt Hon Jacqui Smith MP, 14 July 2009 74 26. Letter to Rt Hon Jacqui Smith MP from the Commissioner, 21 July 2009 75 27. Letter to the Commissioner from Rt Hon Jacqui Smith MP, 24 July 2009 77 28. Letter to Mrs Jessica Taplin from the Commissioner, 22 April 2009 77 29. Letter to the Commissioner from Mrs Jessica Taplin, 6 May 2009 78 30. Letter to Ms Sara Smith from the Commissioner, 22 April 2009 78 31. Letter to the Commissioner from Ms Sara Smith, 30 April 2009 80 32. Letter to Mr David Gordon from the Commissioner, 14 May 2009 81 33. Letter to the Commissioner from Mr David Gordon, 30 May 2009 82 34. Letter to the Director of Operations, Department of Resources from the Commissioner, 22 April 2009 82 35. Letter to the Commissioner from the Director of Operations, Department of Resources, House of Commons, 15 May 2009 83 36. Note of telephone advice given to Ms Smith’s husband by the Department of Resources, 18 June 2007 84 37. Letter to the Commissioner from Ben Wallace MP, Member for Lancaster and Wyre, 7 May 2009 84 38. Letter to the Commissioner from Mr Robert Waterhouse, 30 March 2009 86 39. Extract from Article in the Daily Mail, published 30 March 2009 86 40. Letter to Mr Robert Waterhouse from the Commissioner, 3 April 2009 87 41. Letter to Rt Hon Jacqui Smith MP from the Commissioner, 3 April 2009 87 42. Letter to the Commissioner from Rt Hon Jacqui Smith MP, 23 April 2009 89 43. Letter to Rt Hon Jacqui Smith MP from the Director of Operations, Department of Resources, 8 April 2009 90 44. Letter to Rt Hon Jacqui Smith MP from the Commissioner, 28 April 2009 90 45. Letter to the Commissioner from Rt Hon Jacqui Smith MP, 30 April 2009 90 46. Letter to the Director of Operations, Department of Resources, from the Commissioner, 7 May 2009 92 47. Letter to the Commissioner from the Director of Operations, Department of Resources, 27 May 2009 92
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48. Summary of ACA claims for Virgin Media package 93 49. Letter to Rt Hon Jacqui Smith MP from Assistant Validation Officer, Department of Resources, 11 November 2008 93 50. Letter to Rt Hon Jacqui Smith MP from the Commissioner, 2 June 2009 94 51. Letter to the Commissioner from Rt Hon Jacqui Smith MP, 22 June 2009 94 52. Letter to Rt Hon Jacqui Smith from the Commissioner, 25 June 2009 94 53. Letter to the Commissioner from Rt Hon Jacqui Smith MP, 5 July 2009 96 54. Letter to Rt Hon Jacqui Smith MP from the Commissioner, 9 July 2009 96 55. Agreed Note of Interview, 1 September 2009 96
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Rt Hon Jacqui Smith
Introduction
1. This memorandum reports my conclusions on two complaints I have received against the Rt Hon Jacqui Smith (the Member for Redditch). The first is that she wrongly identified her London residence as her main home for the purposes of the claims she made against her parliamentary allowances for her home in her Redditch constituency. The second is that she claimed against the Additional Costs Allowance (ACA) for films, the cost of which was not permitted under the rules of the House.
2. The two complaints are about entirely separate matters, but both relate to aspects of Ms Smith’s use of Parliamentary allowances. I have therefore decided to submit a single memorandum covering my inquiries into both.
Second Home
Background
3. In its edition of 8 February 2009 the Mail on Sunday reported that “Home Secretary Jacqui Smith has claimed more than £116,000 in Commons expenses for a ‘second home’ while effectively lodging with her sister.”48 Following that newspaper article, I received a number of complaints against Ms Smith based solely on the information in that article.
4. Under the rules agreed by the House I am guided in such circumstances by the view of the former Select Committee on Members’ Interests that it “would not normally regard a complaint founded upon no more than a newspaper story or television report as a substantiated allegation.”49 Nevertheless, when I receive a complaint based solely on a newspaper report, I consider the content of that report very carefully to establish whether it provides sufficient evidence to justify me making an inquiry of the Member. Following a close examination of the article, I concluded that, while it provided a good deal of information about the arrangements which Ms Smith had for her stays in London and in her constituency, it did not provide sufficient evidence that Ms Smith’s claims for her constituency residence were in breach of the rules of the House. The starting point in determining this is that where the Member has more than one home, their main home is normally where they spend more nights than any other. The article, did not, in my judgement, constitute sufficient evidence that Ms Smith’s London residence was not her main home, or that she did not spend more nights there than in Redditch. It did not, therefore, provide a sufficient basis to institute an inquiry.
5. Ms Smith’s arrangements, and my decision, continued to attract considerable media coverage. Assumptions were made about the nature of Ms Smith’s London accommodation. Commentators did not accept that a Member should be able to claim expenses for what they considered to be her main home, in Redditch. The rules appeared
48 WE1 49 Select Committee on Members’ Interests, First Report, Session 1992-93, HC 383
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to define a Member’s main home in a way which was not consistent with people’s normal understanding of the term.
6. I received a letter of 16 February 2009 from one of Ms Smith’s neighbours in London which suggested that Ms Smith did not meet the overnight requirement for identifying her London residence as her main home.50 The evidence was based on the neighbour’s own observations of Ms Smith’s pattern of residence at the property.
The Complaint
7. The letter of 16 February 2009 was from Ms Smith’s neighbour, Mrs Jessica Taplin. Mrs Taplin said that she understood that under the rules, a Member’s main residence was where the Member “spends more nights than any other”. Mrs Taplin wrote:
“Since Ms Smith moved into the street last April, it has been very clear to all living on the road that she resides there for less than half the week. Like clockwork she stays on Monday, Tuesday and Wednesday nights whilst Parliament is in session.
“Neither my husband or myself can remember an occasion when there were police positioned outside the house on a Sunday night or Monday morning…As there are always police stationed outside the property when she is in residence, this is a very clear and simple indicator.”
8. Mrs Taplin went on to say that during the summer and at Christmas, and at other times when Parliament was in recess: “the policemen disappear altogether for months and weeks respectively at a time.”
9. Mrs Taplin said that:
“Having done the simple maths based on three days a week minus at least a full month at summer and at least two weeks’ complete absence over the Christmas period – there seems to me to be no confusion as to the simple truth of the matter. Since moving into the property Ms Smith does not as the guidance states is required ‘spend more nights than any other’ at the address.”
10. Mrs Taplin suggested that “a very simple and open way” to investigate the matter would be to look at the police log for the period from April 2008.
11. Mrs Taplin sent me a further letter of 16 February following up an interview with Ms Smith which she saw on a BBC news website.51 Mrs Taplin quoted Ms Smith as saying that the place where the Member spent the most time should be the place which they allocate as their main home. Mrs Taplin said that Ms Smith was being misleading since she and her husband had clearly stated that Ms Smith spent three nights staying at the house in London for the majority of weeks when Parliament was in session but was not present at the
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address when Parliament was in recess. They did not refer to her staying in London in general. Mrs Taplin added:
“She may very well spend most of her time in London—but being ‘in London’ does not equate to spending the majority of nights at the property she claims to be her primary residence.”
Mrs Taplin concluded that the core of the issue was where Mrs Smith spent the majority of her nights and that impartial evidence (i.e. police logs) should be provided to support her claim.
12. Having considered Mrs Taplin’s two letters, I concluded that her evidence as a witness of Ms Smith’s pattern of overnight stays at her London residence was sufficient to justify me inquiring into whether Ms Smith’s expenses claims based on her main home being in London amounted to a breach of the rules of the House.
Relevant provisions of the Code of Conduct and Rules of the House
13. The Code of Conduct for Members of Parliament provides in paragraph 14 as follows:
“Members shall at all times ensure that their use of expenses, allowances, facilities and services provided from the public purse is strictly in accordance with the rules laid down on these matters, and that they observe any limits placed by the House on the use of such expenses, allowances, facilities and services.”
14. The rules in relation to most of the years for Ms Smith’s claims for her overnight stays away from her main home are set out in Section Three of the Green Book on parliamentary salaries, allowances and pensions published in July 2006. Section Three deals with the operation of the Additional Costs Allowance (ACA). Section 3.1.1 sets out the scope of the allowance as follows:
“The Additional Costs Allowance (ACA) reimburses Members of Parliament for expenses wholly, exclusively and necessarily incurred when staying overnight away from their main UK residence (referred to below as their main home) for the purpose of performing Parliamentary duties. This excludes expenses that have been incurred for purely personal or political purposes.”
15. In support of this Section, there are a number of “frequently asked questions” for which one is as follows:
“What can I claim? Only those additional costs wholly, exclusively and necessarily incurred to enable you to stay overnight away from your only or main UK residence, either in London or in the constituency. If you receive the London Supplement you will not be eligible.”
16. Section 3.2.1 sets out the eligibility requirements as follows:
“You can claim ACA if:
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a You have stayed overnight in the UK away from your only or main home, and
b This was for the purpose of performing your Parliamentary duties, and
c You have necessarily incurred additional costs in so doing, and
d You represent a constituency in outer London or outside London…”
17. The principles of the allowance are set out in Section 3.3.1 as follows:
“You must ensure that arrangements for your ACA claims are above reproach and that there can be no grounds for a suggestion of misuse of public money. Members should bear in mind the need to obtain value for money from accommodation, goods or services funded from the allowances.”
And in Section 3.3.2:
“You must avoid any arrangement which may give rise to an accusation that you are, or someone close to you is, obtaining an immediate benefit or subsidy from public funds or that public money is being diverted for the benefit of a political organisation.”
18. Section 3.11.1 gives the definition of the Member’s main home as follows:
“Main home
“When you enter Parliament we will ask you to give the address of your main UK home on form ACA1 for the purposes of ACA and travel entitlements. Members are expected to locate their main homes in the UK. It is your responsibility to tell us if your main home changes. This will remain your main home unless you tell us otherwise.
“The location of your main home will normally be a matter of fact. If you have more than one home, your main home will normally be the one where you spend more nights than any other. If there is any doubt about which is your main home, please consult the Department of Finance and Administration.”
19. Section 3.12.1 deals with changes to a Member’s living arrangements. It states:
“If you change the location of your main or second home please let us know promptly, as it may affect your ACA claim. …”
20. The bulk of the inquiries were to cover a period of four years starting at the beginning of the financial year 2005-06. The relevant Green Book for that early period until July 2006 was the edition published in April 2005. That edition contained similar provisions to those quoted from the July 2006 Green Book relating to the scope of the allowance (in Section 3.1.1); and relating to eligibility (in Section 3.2.1). It provided in Section 3.9.1 the same definition of a main home as appeared in Section 3.11.1 of the July 2006 Green Book. It did not include the principles of the allowance set out in Section 3.3.1 and Section 3.3.2 of the 2006 Green Book.
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21. The major change between the April 2005 Green Book and its predecessor for June 2003 was that it omitted the statement that Ministers were deemed to have their main home in London.52 The provision, which was abolished in 2004, read as follows:
“If you are a Minister or office holder … then your main home is deemed to be in London. Unless you are provided with an official residence, you will receive London Supplement with your salary, and you may be eligible to claim ACA in the constituency.”
22. The July 2006 version of the Green Book was superseded by a new version on 1 April 2009 and further revised in July 2009. These versions replaced the provisions of section 3.11.1 of the 2006 Green Book with a definition that required the Member to determine where his or her main home was, based on his or her circumstances. This complaint, however, relates to Ms Smith’s claims under the provisions of the Green Book of July 2006 and earlier editions.
My Inquiries
23. I wrote to Mrs Taplin on 17 February to let her know that I had accepted her complaint. At the same time, I wrote to Ms Smith.53 I noted that the essence of Mrs Taplin’s complaint was that Ms Smith’s London residence was not her main home as defined by the rules of the House and that she should not, therefore, have so designated it for the purposes of her claims against the Additional Costs Allowance. I asked Ms Smith to set out the arrangements she had made for her accommodation in London and in Redditch; why she considered her London accommodation to be one of her homes and also why she considered it to be her main home; to explain the nature of her accommodation in Redditch and why she considered her Redditch accommodation was not her main home; and to set out for each of the last three years to the best of her recollection the number of nights she had spent in her London residence, in her Redditch residence and elsewhere. I asked her to explain what costs arising from her constituency residence she claimed from parliamentary allowances and to set out the nature of the discussions she had had with the House authorities about her arrangements.
24. Ms Smith responded on 24 February.54 Ms Smith said that, contrary to what the complainant had said about not residing at her London property during the summer and at Christmas and at other times when Parliament was in recess, she had spent a “significant proportion of [her] time at [her] London home” over the 2008 summer recess and the 2008 Christmas holiday period.
25. Ms Smith noted that the complainant placed “great store by the visibility of the police presence outside [her] home to support her assertions”. While it would be inappropriate to give detail about the nature of her protection, she had specifically asked the police to be as unobtrusive as possible. Furthermore, given the unpredictable nature of events that she dealt with as Home Secretary, there was no set pattern to her arrangements, so the
52 This change was also incorporated in an updated electronic July 2004 version of the 2003 Green Book. 53 WE 4 54 WE 5
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complainant’s statement that: “like clockwork she stays on Monday, Tuesday and Wednesday nights whilst Parliament is in session” was “just wrong”.
26. Ms Smith said that she was confident that she had abided by both the letter and the spirit of the guidance laid down by Parliament for ACA claims. In 1997, after her election to Parliament, she had rented a house in London with her sister. She already owned a house in her constituency with her husband. She realised that being a Member of Parliament would involve her having two homes—one in London and one in her constituency—and being away from her young family. She therefore wanted her London home “to be more than simply a bolt hole.”
27. Ms Smith said that, in May 1998, she moved into a different house in Redditch. Later in 1998 when she returned to Parliament from having, in effect, taken maternity leave, she moved in London to a flat on her own. Her sister had moved to another job that meant she lived outside London so they could not share. In October 2001, however, she moved to a house in London which she again shared with her sister.
28. In May 2004, Ms Smith moved to her current Redditch home, a four bedroom house bought for £295,000. She had a joint mortgage on this property with her husband. In April 2008, she moved in London to her current address where she lived with her sister and her sister’s partner. This was a three bedroom house bought for £450,000. Her sister had a mortgage on the house. Ms Smith was a guarantor of the mortgage. Newspaper descriptions of her living arrangements in this house were mostly wholly inaccurate. She did not “rent a room”, she shared the house. Ms Smith said that she paid a rent of £700 per month to her sister, on which her sister paid tax. In addition, she contributed to other bills, such as utilities and cleaning. She bought the TV licence. They ate together and Ms Smith contributed about £150 a month towards food. She had bought fixtures, fittings and furniture throughout the house. She recently paid £1,000 as a share of having a new boiler. She had entertained friends and other family members at the house. In particular, they had chosen to have a third bedroom partly so that her children could have a room to sleep in when they came up in school holidays and for weekends. Ms Smith and her sister provided emotional support for each other.
29. Ms Smith concluded that for all these reasons, and most importantly because it was her base for most of the week, she considered her London residence to be her main home in the terms set out in the guidance for the Additional Costs Allowance.
30. Ms Smith stated that she had been appointed as a Minister in July 1999. Up to February 2004, when the Fees Office had circulated a letter, she understood that Ministers had no choice over which of their homes to nominate as their main home: it had to be their London home because it was assumed that Ministers would spend the majority of their time in London. In the judgements that she had made about the nomination of her main home, this precedent seemed to her to be an important factor. Ms Smith said it weighed strongly with her in the decision not to change the designation of her main home after 2004, when the rules changed to allow Ministers to nominate either their constituency or their London home. Furthermore, by 2005 she was a senior Minister and she entered the Cabinet in 2006. She believed that she would be spending more time in London as a Cabinet Minister, as in fact had been the case.
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31. Ms Smith said that she was aware that some people had argued that, as her children lived in Redditch, this must be her main home. When she became a Minister, she and her husband had considered whether to move their children to London. Because of their children’s circumstances, they took a “conscious decision to split the main family home from [her] main home”.
32. Ms Smith also understood the need to seek advice in cases of doubt. That was why her husband, on her behalf, had made contact with the Department of Finance and Administration in June 2007 to seek further advice. Ms Smith enclosed a copy of the letter that she had then sent to follow up the phone call, and a copy of the Department’s response.55
33. Ms Smith said that, to identify where she had spent her nights in each of the last three calendar years, she had requested copies of her Ministerial diaries. She had compared these with her constituency and personal diaries and “with my recollection when the diaries are not clear or are incomplete” and provided her best estimates.
34. In commenting on this information, Ms Smith noted that she had undertaken more overnight and overseas ministerial trips during 2008. It turned out that they had taken place on nights that she would usually have been in London. She noted also that “some of the discrepancy between the number of days and nights spent in each location” was due to her being able and prepared to travel to her Redditch home very late at night and to set out from there very early in the morning in order to conduct ministerial business.
35. Ms Smith said that as the Home Secretary she needed to be prepared to respond quickly to events and to spend extended periods of time in London—as was the case immediately after she took up post in 2007. At that point she could not predict how many nights she would need to spend in London, but it was a reasonable assumption for her to have made that she would spend more nights in London. She noted that in total, according to her calculations, in the three-year period 2006-08 she had spent 462 nights in London and 435 nights in Redditch. Ms Smith added that she was happy to provide further clarification or details for each of the last three financial years.
36. Ms Smith said that in the last three years she had claimed the following for her constituency residence from parliamentary allowances: £22,110 in 2006-07 and £22,948 in 2007–08. She believed her claims in the financial year 2008–09 were at a slightly lower level.56 She had claimed in the categories of mortgage interest, utility bills, council tax, telephone, servicing and maintenance, repairs and cleaning.
37. In conclusion, Ms Smith noted that she had been subject to incidents at both her addresses and that it was very important that disclosures about her movements and security arrangements did not facilitate further difficulties or concerns.
38. Ms Smith’s letter to the Department of Finance and Administration had been sent on 19 June 2007.57 She noted that since first becoming a Minister in 1999, she had claimed her
55 WE 7 and 8 56 Ms Smith’s claim for 2008-09 was £19,182 (source: Department of Resources) 57 WE 7
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London home as her main residence as it was deemed that Ministers had their main home in London as a matter of course. She noted that in recent years, that rule had been relaxed with Ministers now able to say that their main home was not in London. Miss Smith noted that her ministerial duties continued to extend her residence time in London. But she was concerned that she had not formally clarified the designation of her main residence. She noted that she had in particular asked the Department for advice about whether the home where her family lived should automatically be her main home. She said that the advice of the Department was that this was not relevant. She asked for confirmation of this.
39. In conclusion, Ms Smith said that: “certainly, whilst I remain a Minister (with the extra London and non-constituency based duties this entails) it seems reasonable to continue to deem my ‘main home’ as being in London…Please could you confirm that this fulfils the conditions of the ACA.”
40. A senior official in the Department of Finance and Administration responded on 11 July.58 Having summarised Section 3.11.1 of the Green Book (see paragraph 18 above) he said: “I can confirm therefore that the location of a Member’s main home may not always be where their family reside. I agree with your assertion that [it] is reasonable to continue to claim the allowance against your constituency home given [that] your ministerial responsibilities require you to spend the majority of your time in Westminster.”
41. Having considered Ms Smith’s letter of 24 February with its enclosures, I wrote to her on 2 March about four matters.59 First, I undertook to show Ms Smith in advance all the factual material I would include in a memorandum to the Committee so that she could comment on the security aspects of any disclosures in that material.
42. Secondly, I accepted her offer to let me have the statistical information she provided on a financial year basis, including the financial year 2008-09.
43. Thirdly, I asked for her permission to approach the Metropolitan Police Service, and through them West Mercia Constabulary to ask for information based on their logs. While I did not need information in more detail than she had provided to me, and would not wish to put her personal security at risk in any way, I did think it would be helpful for me to have this information.
44. Fourthly, I drew Ms Smith’s attention to the answer to the first of the frequently asked questions in Section 3.1.1 of the Green Book, that Members could claim “Only those additional costs wholly, exclusively and necessarily incurred to enable [them] to stay overnight away from [their] only or main UK residence…”. I asked Ms Smith to let me know whether she had considered her claims under the Additional Costs Allowance against the criterion that her claims must only be for those additional costs which enabled her to stay overnight in her constituency, given that I took it from her letter that she had owned a home in the area with her husband since before she was elected to the House in 1997.
58 WE 8 59 WE 9
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45. Ms Smith responded to my letter on 26 March 2009.60 She set out the information about the number of nights she had spent in London and in Redditch in each of the last four financial years. Ms Smith noted that, in terms of the figures for the financial year 2008-09, had one more night per month been spent in London rather than in Redditch, the balance would have been “more than reversed”. On the basis of these figures, therefore, she maintained that she had made a wholly reasonable judgement that she would spend more nights in London than at any other property. She had based that judgement on the previous rule in place until the end of 2003–04 that assumed a Minister’s main home would be in London; her experience of previous financial years, in which she spent more nights in London than in Redditch; and her expectation as Home Secretary that she would need to be in London with no warning and could therefore spend more rather than less time in her London home.
46. On my question about the interpretation of the requirement that claims had to be for the additional costs of staying in her constituency, Ms Smith said that her interpretation of this condition had always been that “the ‘additional element’ related to additional costs involved in having to have two homes in order to carry out both parliamentary and constituency duties.” She had never interpreted “additional” as being about whether a particular home was added after election to Parliament. When she was elected to Parliament, there was a genuine need for an additional residence and the nomination for which was to be her main residence only changed when she became a Minister, in line with the rules of the time. The fact that she had maintained a home in her constituency—in addition to her home in London—was directly related to her role as a Member of Parliament. Ms Smith said that if she was not an MP, she would need only one home and she might have sold her Redditch home to move elsewhere. She therefore believed that the costs she had claimed for her Redditch home had been precisely to enable her to stay overnight in her constituency.
47. Turning to my request for information from the police, Ms Smith said I would wish to judge whether to approach the Metropolitan Police Service, and through them, West Mercia Constabulary along the lines I had proposed. Having no familiarity with the type of records which might be held, however, she was in no position to judge how accurate they might be. As I would appreciate, accuracy in these matters was of paramount importance to her. Ms Smith said that in her view the most accurate records for her movements were her ministerial and personal diaries, supported by her own personal recollection. She understood it would be an unprecedented step to provide access to a Home Secretary’s ministerial diary but she would be “very happy to arrange an opportunity for us to go through this and [her] other diaries for the years in question.”
48. Ms Smith said that she had considered carefully my request for permission to approach the police. In view of the important issues it raised for the relationship between protection officers and the principals whom they protected, and in view of the potential implications my request might have for others who were covered by protection arrangements, she had sought advice from the Home Office Permanent Secretary. She forwarded his letter to her
60 WE 10
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of 25 March,61 with a letter to him of the same date from the Director of the Propriety and Ethics Team in the Cabinet Office.62
49. In her letter, the Director noted that there had been only one occasion she could recall when they had provided an external body with access to a Minister’s diary. However, she could appreciate in this case how a ministerial diary could provide an evidence base to establish the Home Secretary’s movements. She therefore agreed it should be provided to me for the purposes of my investigation. The Director said that she was not aware of any instances where police protection logs had been provided. She thought the Permanent Secretary would be better placed than she to comment on the impact of providing access on overall policy on personal protection, but she would have thought it raised difficult issues. Her preference, therefore, would be to rely on the Ministerial diary in the first instance and to fall back on the protection logs if at the end of the process, I felt further clarification was needed.
50. The letter of 25 March to the Home Secretary from the Permanent Secretary to the Home Office63 said that he agreed with the Director’s advice.64 It would be an unusual and—so far as he knew—unprecedented step for police records to be used in this way but, following discussions with the Cabinet Office Director, he had agreed with the Home Secretary that, in line with her wish to be as helpful as possible to me, I could have access to the Home Secretary’s Home Office diary. While “they would no doubt require some interpretation and commentary” they were, unlike police records, an official account, prepared by civil servants, of the Home Secretary’s movements. The Permanent Secretary thought they would provide the basis for verifying the Home Secretary’s stays in London, in Redditch, and elsewhere. But the Permanent Secretary stressed that they would never normally make the diaries accessible to anyone.
51. On the question of access to police records for a similar purpose, the Permanent Secretary commented that in terms of personal protection within government, the Home Office did not normally “even confirm or deny whether individuals receive protection” and they certainly never revealed any details about the nature of that protection. The police were responsible for the provision and operation of protection, and it was entirely a matter for them what records they kept. The Permanent Secretary did not know how full these records were or what police resource might be involved in collating usable information. He added that it would be a highly unusual step to reveal any information relating to personal protection, even to the Parliamentary Standards Commissioner. Personal protection was provided to protect the individual. It was not designed to provide a record of an individual’s movements and private arrangements. He commented “Many senior politicians accept protection as a necessary consequence of the job they do, but dislike the intrusion into their and their families’ privacy which it necessarily involves. If, in the future, they thought that it might be used to provide personal information to a third party, I fear they may look at protection in a completely different way.”
61 WE 11 62 WE 12 63 WE 11 64 WE 12
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52. The Permanent Secretary’s overall view was: “We would greatly prefer it, if all other avenues for resolving this matter could be used before asking the police to release their records.”
53. Having considered Ms Smith’s letter, the letter from the Director of Propriety and Ethics in the Cabinet Office, and the letter from the Permanent Secretary in the Home Office, I wrote to Ms Smith on 30 March.65 I said I was mindful of both Ms Smith’s own security and that of others who might require police protection. I noted that both Ms Smith’s Permanent Secretary and the Cabinet Office had suggested that access to police records should only be used as a last resort. I thought it would be helpful, therefore, if I took up Ms Smith’s offer to go through her ministerial and other diaries. I said that I suspected this could take a little time and that I would be happy to discuss the logistics of this with anyone she designated with the aim of ensuring that the work could be carried out as quickly and securely as possible.
54. Following contacts with Ms Smith’s Special Adviser, Ms Smith, that Adviser, myself and a member of my staff met on 1 and 3 April to go through Ms Smith’s ministerial and personal diaries to identify her overnight locations. I had a further meeting with her Special Adviser on 6 April to conclude the work on Ms Smith’s diaries for March 2009. At that meeting, Ms Smith’s Special Adviser provided me with photographs which Ms Smith had told me were taken at her London home on Christmas Day 2008, and at a London location on Boxing Day 2008 and on the House of Commons Terrace on New Year’s Eve. Her Special Adviser subsequently sent me on 21 April the digital properties file for each of these photographs identifying the date and time they were taken. Ms Smith’s Special Adviser also provided me some information about missing diary dates.
55. Having considered carefully the diary information which I had collected, the degree of certainty which I considered it was able to provide, and the advice Ms Smith had received from the Permanent Secretary to the Home Office and from the Cabinet Office, I decided that it would be helpful if I could also have information from the police about Ms Smith’s overnight stays. This was because, despite our careful analysis of Ms Smith’s diaries, there were unavoidably a number of nights where it was necessary to make a judgement because, theoretically, Ms Smith could have travelled to Redditch between her last appointment in London on one day and her first appointment there the following day, and there were other days where the evidence was not sufficient to form a wholly reliable judgement. These days were enough significantly to affect the final figures.
56. I therefore wrote to Ms Smith on 22 April.66 I enclosed a summary of the overnight stays which we had identified following our analysis of her diaries. I noted that the figures were very close to the ones which she had sent me in her letter of 26 March; that a comparatively small number of nights spent in Redditch (or, in the final year, in London) would have a significant effect on the overall figures; that a significant proportion of the conclusions were based on a reasonable estimate of where Ms Smith was likely to have spent the night; and that for a small number of nights the diaries alone provided insufficient evidence to make a wholly reliable judgement. For 2007–08 and 2008–09 the
65 WE 13 66 WE 14
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number of nights for which there was insufficient diary evidence could affect significantly the overall balance across the year. In the light of this, I concluded that it was necessary for me to ask the police whether they could reliably provide such information. Whilst I noted that I would not describe it as a last resort, this information was, I believed, necessary in view of the comparatively narrow gap between the London and constituency locations in the final two years, the proportion of nights which were necessarily estimated from her diaries and the potential impact the most uncertain nights would have on the overall figures.
57. Accordingly, I wrote to the Commissioner of Police of the Metropolis on 22 April requesting his help in identifying the number of nights Ms Smith had spent at her London residence compared to the number of nights at her constituency residence.67 I noted that Ms Smith had emphasised to me that accuracy in these matters was of paramount importance to her. These figures would only be of value to me if they could be produced with a high degree of assurance as to their accuracy, and if they could be produced within a reasonable timescale. Nor would I want to incur a disproportionate use of police resources. I noted that I had consulted Ms Smith to seek her agreement to my approaching the police for this information. I summarised the advice that she had received from senior officials and noted that Ms Smith had said that it was for me to judge whether to approach the Metropolitan Police Service, and through them, West Mercia Constabulary with this request.
58. I received on 30 April a response from an Assistant Commissioner in the Metropolitan Police.68 She said that they had consulted the West Mercia police who shared their views. She said that “the privacy versus security concerns could cause principals, where risk decrees that they need to be protected, to understandably reconsider their position over concerns of a breach of privacy if material were to be released. This could cause significant problems around future protection arrangements.” Regarding Freedom of Information, the Assistant Commissioner said that the Metropolitan Police regularly received requests asking for details of protection provided to individuals, and their policy had been to use a “neither confirm or deny” response. She was concerned that supplying the details requested could “undermine that position when considering future FOIA requests”. Security arrangements were a serious and ongoing concern.
59. On Data Protection, the Assistant Commissioner said that she had been advised that the details of the whereabouts, movements and timings of the Home Secretary amounted to ‘personal data’ within the meaning of the Data Protection Act, and said that “such information should only be released with the express and clear written consent of the subject”.
60. The Assistant Commissioner concluded that:
“Whilst I am keen to provide appropriate assistance, having taken all these issues into account my view is I am not in a position to release the information requested upon the basis of considerations as they pertain at this time. Should the position change, I would be content to reconsider that view.”
67 WE 15 68 WE 16
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61. I responded to the Assistant Commissioner’s letter on 7 May.69 I noted that I would need to consider whether my request was so central to my inquiry that I had to refer the matter to the Committee on Standards and Privileges for it to consider whether to exercise its power to ask for papers and records. But, before considering this further, I asked if the Assistant Commissioner could give me some further guidance on the reference in her letter to reconsidering her view “should the position change”. I asked her to let me know what changed conditions she considered would be necessary in order for her to reconsider her view. I asked her also to let me know what reassurances from me might help to meet her security and privacy concerns, given that I was asking only for annualised returns, and assuming that the appropriate level of consent was provided by the data subject (Ms Smith).
62. I received a response from the Assistant Commissioner on 4 June.70 She said that, as she thought she had made clear in her letter of 30 April,71 the main concern that the police had related to Data Protection. She believed that it was a matter between me and Ms Jacqui Smith as to whether she relinquished her right to privacy and whether I would seek “her express consent” for the Metropolitan Police Service (and the West Mercia police) to release the data I had requested. The Assistant Commissioner said that:
“Data supplied in a summarised format would not compromise our current position on the security of protected persons.”
63. Having considered the matter again, I continued to believe that accurate data provided from police logs would help my inquiry. Accordingly I wrote to Ms Smith on 8 June.72 I asked her to consider giving me her express consent to the Metropolitan Police Service and the West Mercia Constabulary releasing to me in a summarised format the information they held relating to her overnight stays in London and Redditch between 28 June 2007 when she became Home Secretary; and her police protection started and 31 March 2009.
64. Ms Smith responded with her letter of 15 June73 giving me her consent. She noted that she had not opposed me seeking this information with respect to her specific circumstances. Her only stipulation was that this information should be as accurate as that provided from other sources. She was, therefore, content for me to receive this information from the Metropolitan Police and the West Mercia Constabulary “on the condition that they can supply me with the night by night analysis that forms the basis of the summary.” She was writing to the Commissioner and the Chief Constable to make this request.
65. Accordingly, I wrote to the Assistant Commissioner on 18 June74 to request the release of this data on the basis of Ms Jacqui Smith’s express consent. I attached her letter of 15 June.75 I asked the Assistant Commissioner to let me know when she sent me the
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information, whether there were any points she would wish to make about the accuracy of the summaries the police had produced.
66. The Assistant Commissioner replied on 3 July.76 Her letter represented the position of both the Metropolitan Police Service and the West Mercia Constabulary. The Assistant Commissioner confirmed that she had received a letter dated 15 June from Ms Smith providing her written consent to the provision of this data to me. She said that her officers and West Mercia officers had collated data for Ms Smith’s London and Redditch residences. This had then been checked for consistency with another data source. Data had been collated by the relevant departments and checked by independent officers. It was consistent with the other source on all but two occasions.
67. The figures provided by the police suggested that for the period from 28 June 2007 to 31 March 2008, the police guarded Ms Smith for 101 (or 102) nights in London and 128 nights in Redditch; and from 1 April 2008 to 31 March 2009, the police guarded Ms Smith for 137 nights in London and 173 (or 174) nights in Redditch.
68. The police figures differed significantly from the diary estimates. For the period from 28 June 2007 to 31 March 2008, police figures suggested that Ms Smith had spent 26 more nights in her Redditch home than she had in her London home, whereas her diary suggested that the difference was two nights over the same period. For 2008-09, the police figures suggested that Ms Smith had spent 37 more nights in Redditch than she had in London, whereas her diary estimates suggested that the difference was 9 nights.
69. I wrote to Ms Smith on 7 July, enclosing a copy of the Assistant Commissioner’s letter and drawing Ms Smith’s attention to the difference in the balance of her overnight stays between her own diary estimates and the police information.77 I also indicated that I proposed to class one of the dates for which the police had no firm records as an overnight stay in London, and the other as an overnight stay in Redditch.
70. Ms Smith responded with her letter of 14 July.78 She said “I have now gone through again day by day my personal and Ministerial diaries to check any discrepancies with the Metropolitan Police summary.” In her letter, she included a table which provided in most cases strong circumstantial evidence from her diary records of her location where it differed from the police records. I have not included this information in the evidence, to protect Ms Smith’s privacy and that of her family. The references related to ministerial and political engagements or personal commitments in other parts of the country or abroad, which either placed her away from both residences or which strongly suggested that she had spent the night in London.
71. I considered carefully the analysis in Ms Smith’s letter. I replied to her on 21 July, suggesting that the objective was to produce the best estimate we could of her overnight stays and that I proposed to accept her analysis of her overnight stays where the comments she had made substantiated the amendment to the location which she proposed.79 But
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where she had not been able to provide such evidence, I thought it right to accept the police analysis. I attached a revised schedule as the best estimate of her pattern of overnight stays in each of the years in question. I asked Ms Smith to confirm her agreement to this analysis.
72. Ms Smith responded with her letter of 24 July.80 She pointed out that “The various exercises that we have now completed have identified the difficulty of arriving at a fully accurate record of where I spent every night over the last four years.” She added, “…I accept your recommendation that we should now agree on a best estimate and I am willing to accept your table as that estimate.” The agreed table is as follows:
Rt Hon Jacqui Smith: summary of overnight stays
London Redditch Elsewhere Total for Difference year between London and Redditch nights
1. 2005-06 (from 11 May)
Number of nights 139 128 58 325 11 (diary estimate)
2. 2006-07
Number of nights 151 131 83 365 20 (diary estimate)
3. 2007-08
a. Number of nights 43 29 14 (diary estimate) up to and including 27 June
b. Number of nights 109 122 -13 (diary estimate and police figures) from 28 June
c. Number of nights 152 151 63 366 1 (diary estimate and police figures)
4. 2008-09
Number of nights 143 161 61 365 -18 (diary estimate and police figures)
73. Obtaining the police information had taken from 2 March, the date of my initial request to Ms Smith, until 3 July, the date of the Assistant Commissioner’s letter with the
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requested information. During the period when I was seeking and analysing the information about Ms Smith’s overnight stays, I had made enquiries of a number of witnesses to see if I could obtain some eyewitness evidence which could, once it had been received, be used to reinforce the statistical data.
74. I wrote to the complainant, Mrs Taplin, on 22 April.81 I noted that I had been examining carefully documentary evidence to establish the nights which Ms Smith had spent at her London residence, at the residence in Redditch, and elsewhere. I noted that the number of nights spent elsewhere would, of course, affect the overall arithmetic. I asked whether, on reflection, the complainant had any further evidence in addition to her letters to me of 16 February. In particular, I said it would be helpful to know whether she had any further evidence to suggest that Ms Smith did not spend some Thursday nights at her London residence up to March 2009; and any further evidence she had which suggested that she did not spend some nights in her London residence during the summer and over the Christmas and New Year of 2008–09, including Christmas Day.
75. Mrs Taplin responded with her letter of 6 May.82 She said that she had no written diary or log of the police presence but noted that normal police presence was from Monday mid- morning to Thursday mid-morning and only when Parliament was sitting. She said that this had increased since my inquiry had begun, with the police now there more frequently, sometimes appearing on Sunday night and sometimes being there until Friday rather than Thursday morning. Referring to my specific reference to evidence suggesting that Ms Smith did not spend some of her nights at her sister’s house in the summer and over Christmas and New Year, Mrs Taplin said that she could “only say that during the summer recess there is no regular police presence”. At Christmas, she and her husband had been abroad, “only returning on 3 January. From memory there was no police presence for a good week or two after our return, only resuming when Parliament was sitting.”
76. Mrs Taplin concluded: “I hope this helps, but surely the police activity log provides evidence of where Ms Smith actually spends the night?”
77. I also wrote on 22 April to Ms Smith’s sister, Ms Sara Smith, with whom Ms Smith stays in London.83 I set out Ms Smith’s description of the arrangement for her accommodation in London as described in her letter to me of 24 February. I asked Ms Sara Smith to confirm her sister’s description, to confirm with any evidence she had to support it that most weeks, including the parliamentary recess, Ms Smith stayed with her from Monday to Wednesday, with some Thursday nights and a few part weekends. Finally, I asked her to confirm that Ms Smith and her family had spent the nights of 24–26 December inclusive and 31 December 2008 at their shared address, with any evidence she had to support this.
78. Ms Sara Smith wrote on 30 April.84 She said that she and her sister shared a house, as they had done for many of the years during which her sister had been a Member of Parliament. She confirmed her sister’s description of the way they shared the
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accommodation. She also confirmed that her sister spent “three, four, five or more nights a week here, depending on where her duties as a Minister and constituency MP take her” but she was not sure she could provide evidence for this “further than my word”.
79. Turning to the Christmas 2008 period, she enclosed a photograph of Ms Jacqui Smith and her son in front of a Christmas tree and evidence that it was taken in the early morning of Christmas Day 2008. Ms Smith said that their next door neighbour would be happy to confirm that Ms Jacqui Smith was at the property for Christmas and the New Year, as the photograph that Ms Jacqui Smith had shown me demonstrated.
80. Turning to the evidence which she believed Mrs Taplin had given me, Ms Smith said that it implied that Mrs Taplin or her husband had checked the outside of the Smiths’ home every night. This was “quite a commitment” as they lived around thirty metres away “…on the same side of the road and behind a fir tree”. Ms Sara Smith said that “The idea that weeks and months have gone by when Jacqui has been away from London—and away from our home here—is not true.” Ms Smith concluded her letter with a number of comments on the way the media had reported Mrs Taplin’s allegations and the inquiries which she believed newspapers were making about her (Ms Sara Smith). She suggested that by giving her “facts” to a newspaper first, her neighbour “may have encouraged a few people to have made up their minds already”.
81. I noted Ms Sara Smith’s reference to possible evidence from another neighbour. She kindly provided me with contact details. I therefore wrote to that neighbour on 14 May.85 I asked him to confirm the report of Ms Jacqui Smith’s presence in the London property on 24 to 26 December and on 31 December. I asked him also to comment on the evidence that Ms Smith had stayed overnight in London from Monday to Wednesday, with some Thursday nights and a few part weekends, including during the parliamentary recesses, and more specifically, last summer.
82. The neighbour, Mr David Gordon, responded on 30 May.86 He said that he could confirm the presence of Ms Jacqui Smith at the London house over both the Christmas and New Year periods, 2008–09. He had witnessed a number of family members present at that address for several days during that time and “Ms Jacqui Smith was one of that company”. Mr Gordon said he was present at his own address from 24 to 26 December inclusive and on 31 December 2008. Their houses overlooked one another to some degree and so he had occasion to have sight of Ms Jacqui Smith during these periods. He stated that police officers were on duty throughout the Christmas and New Year periods which indicated the presence of Ms Jacqui Smith there. With regard to Ms Smith’s presence generally at the London address, while he did not keep a record of events, dates or days of the week, it was his firm impression that, on balance, Ms Jacqui Smith was present there “at least 60% of the time”. It was more usual that she was there for a significant part of the working week, although he had noticed “occasional periods of extended presence, lasting a full week or even, on occasion, consecutive weeks.” There had been several weekends when he had been aware of her presence at the house, although this was less usual. He had no impression of any significant change of pattern during the parliamentary recess.
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83. Turning to the summer of 2008, Mr Gordon said that he could vouch for regular police attendance at the house, which indicated Ms Jacqui Smith’s presence. Occasionally there was no indication of her presence at the house for about a week, but “my observation and impression supports the view that she was present there more often than not”.
84. In summary, therefore, Mr Gordon said that his “own observation and impression” would support Ms Jacqui Smith’s account which I had given him.
85. I wrote to the Director of Operations in the Department of Resources on 22 April.87 I showed the Director the relevant correspondence and the table of Ms Smith’s overnight stays which I had drawn up in discussion with her following my initial analysis of her diaries. I invited the Director’s help on the interpretation of Section Three of the Green Book. I asked whether Section 3.1.1 of the rules, read with the Frequently Asked Questions about the Additional Costs Allowance, enabled the cost of accommodating a Members’ family in their second home to be met; whether the Department considered that Ms Smith had more than one home within the terms set out in the Green Book; whether he considered that it was open to Ms Smith to identify her Redditch home as her main home, even though she spent more nights in London, than in any other place, given this part of the rule appeared to provide for exceptions. I invited the Director’s comments on the exchange of letters between Ms Smith and the Department in June and July 200788 and asked for any information the Director had from his records about the conversation which Ms Smith reported in a letter of 19 June 2007 that the Fees Office had had with her husband.
86. The Director of Operations responded on 15 May.89 He addressed first my question about the interpretation of the 2006 Green Book, and in particular whether the scope of the allowance extended to costs attributable to family members. The Director said that while the Green Book (3.14.1) said that living costs for anyone other than the Member were not allowable, this had to be construed against a general premise elsewhere in the Green Book that support was available to Members in part to facilitate family life in both London and the Member’s constituency. He cited the example of travel allowances providing for spouses and children and the reference to a joint mortgage elsewhere in Section 3 of the Green Book. The advice was: “In the day-to-day administration of the ACA the Department has adopted a pragmatic approach such that, for example, utility bills are generally paid in full and not apportioned in respect of a spouse/partner in residence… our general approach is that costs exclusively or disproportionately for family members are not allowable. So, I am satisfied that the cost of Ms Smith accommodating her family in her second home was acceptable under the rules.”
87. In respect of whether the Department considered that Ms Smith had more than one home within the terms set out in the Green Book, the Director said that he had “no reason to doubt that [… Road] is Ms Smith’s residence whilst in London.” He noted that according to her letter of 24 February Ms Smith paid rent, contributed to running costs and bought fixtures and fittings and furniture.90 The Department could not verify any financial
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transactions because they were not in themselves a subject of any claim against parliamentary allowances: “Bearing in mind the demands of being a Member of Parliament, I can only conclude that [… Road] is indeed a home in the terms set out in the Green Book.”
88. The Director then considered the question as to whether it was open to Ms Smith to identify her Redditch home as her main home, even though she spent more nights in London than in any other place, given that the rules appeared to provide for exceptions. He said, that “The simple answer to this is that it was indeed open to Ms Smith to nominate her constituency home as her main home if the overall facts justified it.” He noted that, at the time of the complaint, Departmental records showed Ms Smith’s main home as being at her previous address in London. He said that they had received a “backdated nomination form” for the current address in March 2009.
89. The Director said that “Advice on the main home nomination was offered by the Department on at least two relatively recent occasions when sought by Ms Smith.” The letter of 11 July 2007 from the Head of the Validation and Enquiry and Advice Team91 did, he considered, “set out the position fairly. The main home is not always where a Member’s family resides because this can be ‘trumped’ by the prime condition in the Green Book, which is where one spends most nights. However, my office would always advise that where a Member’s family lives is a relevant consideration. Such a fact is not of no consequence.”
90. The Director noted that the Department’s letter followed telephone advice that Ms Smith’s husband had received from another member of staff on 18 June 2007. He attached the electronic record of this advice.92 This recorded that the query was “Can you clarify the rule about family members benefiting from ACA payments please?” The advice is reported as: “Told her that she could not claim any form of rent or mortgage to a family member for renting said property.”
91. In the meantime, I had received, unsolicited, a letter of 7 May from Mr Ben Wallace, the Member for Lancaster and Wyre.93 He asked me to take into account responses to a series of Freedom of Information (FOI) requests to Redditch Borough Council. He noted that the Council had confirmed that “full Council Tax has been paid in respect of the property and that no claim was made for either a second home discount or a single person discount.” He noted that Redditch Borough Council offered a reduction in Council Tax liability of 25% if there was only one adult living in the property as their main home, and a discount of 50% if no one lived there. He concluded, “Given that the Home Secretary has claimed the Additional Costs Allowance on the basis that her main home is meant to be London, I believe this latest revelation is worthy of further consideration by your office.” He attached the responses to the FOI request to his letter and, following a request from me, subsequently sent me on 18 May the questions which were submitted to Redditch Borough Council. Mr Wallace noted that the request had been made in the name of another person.
92. I reviewed in early June the evidence I had received from witnesses and the work which I was undertaking on identifying the location of Ms Smith’s overnight stays. I wrote to Ms
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Smith on 18 June94 to let her know that, subject to the information I was then seeking from the police, I proposed to proceed to an interview with her before concluding my inquiry. In my letter of 21 July95 I confirmed the date of the interview, and that I proposed to submit a memorandum to the Committee covering both this complaint and the complaint about her media package claims (my inquiries into which are described in the following section).
93. I met Ms Smith for our interview on 1 September.96 She reiterated that her letter of 24 February97 had summarised her arrangements for sharing accommodation in London with her sister, and their history. She said, “The living arrangements are that we have always just shared the house. One of the things that makes me angry is the interpretation of how we live. It is my home in London. There was a short period when I had a flat, but I didn’t like it and it didn’t feel like home”. Decisions had been taken early on not to move the children from Redditch to London and, “we actually had a conversation when I said that I am going to spend more of my time in London. We decided to separate the family home from my main home”.
94. The London property, Ms Smith said, was a three bedroom Victorian town house. She had one bedroom, her sister and her partner another, and there was one for the children, although they did not leave things there. It was also used twice a month by another child. Ms Smith commented, “It is more than visiting a sister or the children visiting an aunt. They wouldn’t have to ask permission or to be invited.” The living areas, kitchen and dining area were shared. She did not have a separate study, and worked on the kitchen table, commenting “I like people around me”. She entertained in the house, but not frequently— every couple of months, and her sister and partner sometimes joined in. She said that the utility bills were probably in her sister’s name—the arrangements were “slightly informal”—and she did not contribute to the council tax. She occasionally gave money on top of her rent to get repairs done, and listed a range of fixtures, fittings and furniture she had bought for the property. Her sister decided on the decoration of all rooms except her bedroom, but she was consulted.
95. Often at the weekends when she was in London, Ms Smith said, the children visited, but this was not frequent, and was happening less as the children had grown up. Her husband visited more often—once a fortnight during the week. She commented, “My children are based in Redditch—my family is based in Redditch. What we explicitly did was to separate my family life from my work life”. She accepted that this was difficult for people to understand, and for this reason she had checked up with the Fees Office.
96. Ms Smith saw the key element of the use of her London home as for her Ministerial business. In 1999, she had become a Minister, and was thus required to claim London as her main home until February 2004. In 2004, when Ministers’ London homes ceased automatically to be their main homes, she realised that, as a Minister, most of her life was her work, and most of her time she spent where her work was. She “decided that something needed to qualitatively change to justify a change of designation. I didn’t think it likely that I
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would spend less time in London. Nothing big enough had changed”: London was “my home for parliamentary/ministerial duties”. She accepted that she had failed in her responsibility to inform the Department of Resources promptly of her move in London in April 2008 and had breached the rule in that respect.
97. Ms Smith described her Redditch property as a large detached four bedroom house. She confirmed the range of items she had claimed against the Additional Costs Allowance, but had not claimed for every month in every category. She did not claim for food or subsistence, and commented “the costs are greater than the maximum of the allowance. It is a matter of choosing what to claim for when we reach the ceiling”. Her husband chose the furniture and decoration, but she was consulted. It had never crossed her mind to apply for a council tax discount on the grounds that she did not live in Redditch, “It would be weird to take money from my constituents to make a saving for the mass of taxpayers”. She thought of herself as living there. She accepted that quite a few of her constituents, if they were aware of all the facts, would probably have said that her main home was where her family was. She nonetheless maintained that “if you are Home Secretary you do and should spend most of your time in London. I was making claims on the basis of my individual circumstances, not my family circumstances”.
98. Ms Smith said that she had not at the time counted up where she spent her nights, although when the rule ceased to require Ministers to treat their London home as a main home she had thought about her likely overnight stays there as a London based Minister: “the most important thing from 1999 until June this year has been my Ministerial role and my Ministerial work. The default position is that I am doing my Ministerial work; that I am in London and working”. She accepted that, once she became Home Secretary, the availability of a car had meant it became easier to get back to Redditch and that “when I could, I travelled to Redditch to spend the night there”. However, she went on to say, “it seemed to me that you needed a justification to change. If asked the question, would I really have said that as Home Secretary I spent more time in Redditch than in London?”. She later commented “When I became Home Secretary something qualitative would have to happen to make me change the designation. Nothing did happen.” Ms Smith accepted that in 2008- 09 she had spent more nights in Redditch than in London, a process that had started earlier, but maintained that she could not have known this in advance; she had made her best judgement, looking forward, on where she expected to stay.
99. As to the exchanges with the Fees Office initiated by her husband’s telephone conversation on 18 June 2007, Ms Smith said that this had arisen from thoughts of moving house in London. She had realised that she would be criticised for her arrangements, and was trying to ensure that she stuck with the rules. She wanted to carry on living with her sister, and the most financial benefit to her would have been to share the London mortgage with her, but she decided not to do this. While she would not have been able to claim for rent if she had nominated her sister’s property as her second home, Ms Smith pointed out that she could have claimed a range of other items which would in her opinion have added up to much the same as she had claimed for Redditch “I don’t believe I would have claimed less the other way round”.
100. Ms Smith’s overall conclusion was that, having gone through the process, it would have been difficult to have justified having her homes the other way round. She subsequently told me that, while she was currently making no second-home claims against
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the ACA, had Parliament not decided that Members should not change their designation, she would now have done so and designated Redditch as her main home under the 2009 rules, because she had ceased to be Home Secretary. To the suggestion in oral evidence that she had had discretion under the rules to nominate Redditch as her main home and that, on a balanced analysis of the facts it was her main home and should therefore have been identified as her main home for ACA purposes, Ms Smith said this was “based on a lack of understanding of the rules and a complete misunderstanding of my living arrangements,” and that had she nominated Redditch, she would have been criticised as a “part time Home Secretary”. She had stuck by the spirit of the pre–2004 rules; tested them by checking with the Department; fulfilled their objective requirements; and made a reasonable judgement that prospectively she was likely to spend more nights in London than in Redditch.
Media Package
Background
101. In its edition of 30 March 2009, the Daily Mail reported98 that Ms Smith had submitted a bill “for blue movies watched at her family home in Redditch, Worcestershire, as part of a £67 television package claimed under MPs’ controversial second home allowance.” It reported that Ms Smith had said that “I am sorry that in claiming for my internet connection, I mistakenly claimed for a television package alongside it. As soon as the matter was brought to my attention, I took immediate steps to contact the relevant parliamentary authorities and rectify the situation. All money claimed for the television package will be paid back in full.” Her husband was quoted as saying: “I am really sorry for any embarrassment I have caused Jacqui. I can fully understand why people might be angry and offended by this.”
The Complaint
102. On the same day, 30 March 2009, Mr Robert Waterhouse wrote to me. He drew my attention to the Daily Mail article, and asked me both to investigate its allegations and to “consider making a thorough examination of her other claims during her [Ms Smith’s] employment in this Parliament, so that the taxpayer can be reassured that this was—as is suggested—an isolated case.”99 I subsequently received a number of other complaints to the same effect.
103. I responded to Mr Waterhouse on 3 April.100 I accepted his complaint that Ms Smith had claimed against the ACA for films, the cost of which was not permitted under the rules of the House. I did not, however, accept his suggestion that I undertake examination of all Ms Smith’s claims, on the grounds that my role in this respect is confined to consideration of complaints based on evidence of a breach provided by the complainant.
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Relevant Provisions of the Code of Conduct and the Rules of the House
104. The Code of Conduct for Members of Parliament provides in paragraph 14 as follows:
“Members shall at all times ensure that their use of expenses, allowances, facilities and services provided from the public purse is strictly in accordance with the rules laid down on these matters, and that they observe any limits placed by the House on the use of such expenses, allowances, facilities and services.”
105. The rules in relation to Ms Smith’s claims against the Additional Costs Allowance for these films and the related media package are set out in Section 3 of the July 2006 edition of the Green Book on Parliamentary Salaries, Allowances and Pensions. Section 3.1.1 provides:
“The Additional Costs Allowance (ACA) reimburses Members of Parliament for expenses wholly, exclusively and necessarily incurred when staying overnight away from their main UK residence (referred to below as their main home) for the purpose of performing Parliamentary duties. This excludes expenses that have been incurred for purely personal or political purposes.”
106. Section 3.2.1 provides:
“You can claim ACA if:
a You have stayed overnight in the UK away from your only or main home, and
b This was for the purpose of performing your Parliamentary duties, and
c You have necessarily incurred additional costs in so doing, and
d You represent a constituency in outer London or outside London.”
107. Section 3.3.1 of the Green Book provides:
“You must ensure that arrangements for your ACA claims are above reproach and that there can be no grounds for a suggestion of misuse of public money. Members should bear in mind the need to obtain value for money from accommodation, goods or services funded from the allowances.”
108. The Green Book gives a number of examples of expenditure which can and cannot be claimed under the Additional Costs Allowance. Section 3.13.1 gives examples of expenditure allowed, including:
“
• Telecommunications charges • Furnishings • … • electrical equipment
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• … • Other • TV licence…”
Section 3.14.1 sets out expenditure which is not allowable, including: “Living costs for anyone other than yourself”.
109. The July 2006 version of the Green Book was superseded by a new version on 1 April 2009. This complaint, however, relates to claims under the provisions of the July 2006 Green Book.
My Inquiries
110. I wrote to Ms Smith on 3 April 2009.101 I noted that the essence of the complaint was that she had claimed against the Additional Costs Allowance for films, the cost of which was not permitted under the rules of the House. I also noted that I had declined to accept the complainant’s suggestion that I undertake an examination of all her claims. I further noted that I was aware of the comments she had made to the press, and of her husband’s statement. I asked Ms Smith specifically to let me know the circumstances in which she came to include the film items in the claim which had been publicised in the media; whether there were similar claims which she had made for paid films against the allowance; and the actions she had taken to rectify the position.
111. Ms Smith replied on 23 April.102 She commented:
“As I know you are aware from media reports, I have made clear publicly on several occasions that as soon as I became aware of the inclusion of film items in the expenses claim in question I recognised that this claim should never have been submitted. I apologised immediately and took immediate steps to repay all monies relating to the television package at my Redditch home.”
112. Ms Smith attached a letter of 8 April from the Director of Operations, Department of Resources, acknowledging the repayment.103 The letter confirmed receipt of a cheque for £400 and noted: “this reimburses the House for amounts paid towards a Virgin Media package for your constituency home, less the cost of the basic broadband package available from Virgin.”
113. In response to my request for details of the circumstances in which she came to claim the film items, Ms Smith said that, as part of a claim in respect of 1 April–1 May 2008, she had submitted a claim for a Virgin Media package which comprised telephone line rental, broadband connection and television services. The bill she submitted in support of that claim set out advance charges for the period 20 May–19 June (relating to the provision of the basic services) and event charges for films watched on demand. Ms Smith added that:
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“these event charges should never have been claimed for and were inadvertently and mistakenly included in the claim submitted for 1 May–1 June 2008, dated 4 June 2008.”
114. As to similar claims made for paid-for films against the allowance, Ms Smith stated that she had submitted claims for the Virgin Media package in March, April, June, July, September, October, November and December 2008. As to the action she had taken to rectify the situation, Ms Smith commented that she deeply regretted the mistake and took full responsibility for it. She apologised as soon as she became aware of the mistake and took immediate steps to pay back “all monies relating to all television services provided by Virgin Media at my Redditch home.” Ms Smith sought and received confirmation from the Department of Resources that the total amount claimed for this media package including television and broadband was £553.20. Excluding broadband services, the total was, she said, £393.20. On 28 March 2009, she had written a cheque for £400 for the Department of Resources to cover the cost of the television element of the package in its entirety, thus reimbursing the House for amounts paid towards a Virgin Media package, less the cost of “the basic broadband package available from Virgin”, provided to her Redditch home.
115. I responded to Ms Smith on 28 April,104 thanking her for her explanation and putting two further questions to her. The first was whether, when paying back the cost of all her Virgin Media television services for the financial year 2008–09, she did so because she considered the claims for these services were in breach of the rules; if not, which of the services, including the film items, she considered were claimed for in breach of the rules. The second was what claims, if any, she had made for films and television services in each financial year from 1 April 2004 to 31 March 2008, and which of these, if any, she considered were claimed for in breach of the rules.
116. I explained that the reason I needed this information was that I would need to come to a view on the extent of the breach of the rules in respect of these claims before I decided how best to resolve the complaint. I also informed Ms Smith that, once I had received her response, I was likely to consult the Department of Resources for their advice on the interpretation of the rules and on the actions she had taken to resolve the position.
117. Ms Smith replied to me on 30 April.105 In respect to my first question, she commented:
“The Green Book explicitly examples electrical goods, TV licences and telecommunication services as allowable claimable costs. I don’t believe that basic cable or satellite television packages are unreasonable related costs in that context. The Fees Office didn’t question the nature or extent of the Virgin Media package that was claimed for at any time over several months.”
118. She continued: “However, in considering the scale of my repayment of claims I was guided by advice within the Green Book that:
‘You must ensure that arrangements for your ACA claims are above reproach and that there can be no grounds for a suggestion of misuse of public money.’’106
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“I wanted to be perfectly clear about the settlement I was making— in conjunction with my immediate apology for my mistake. I decided to pay back all that I had claimed for in relation to Virgin Media’s package except for the most basic broadband and telephone package available.”
119. In response to my second question, about claims made for film and television services in each financial year from 1 April 2004 to 31 March 2008, Ms Smith stated that, apart from annual claims for a television licence, she had made no claim for any such items beyond those identified in her letter of 23 April.107
120. I wrote to the Director of Operations in the Department of Resources on 7 May, seeking advice on the complaint.108 In particular, I asked if the Department considered Ms Smith to be in breach of the rules in respect of any of the claims she made for her Virgin Media package from March to December 2008 inclusive; to confirm both that she made no claims for any television packages or films before March 2008, and that the only claim made for paid-for films was that submitted in June 2008. I also said it would be helpful if the Department could include copies of the relevant claim forms and supporting documentation.
121. The Director of Operations responded on 27 May.109 He noted that the July 2006 Green Book stated that “telecommunication services” were an eligible expense against the ACA, and added “beyond this it is silent”. He went on to say that the telecommunications product market was relatively complex with a variety of products and packages available to the consumer. The advice the Department gave to Members when guidance was requested was that they might claim only for a basic subscription to digital suppliers, which might include, for example, BBC News 24, Sky News, Bloomberg, etc. The Department would further advise that any additional services, such as access to Sky Movies or Sky Sports “would not be appropriate”. However, the Director noted that additional services such as these could sometimes be rolled into a single low value package, with the marginal cost of the additional subscription becoming relatively inexpensive, if not zero.
122. The Director also commented that, “In administrative terms, it has not seemed a good use of staff time to investigate in detail the digital package in use by an individual Member unless we had cause for concern.” He noted that it was often unclear from Members’ claims whether additional subscription charges were included, and it could also be difficult to distinguish between telephone, mobile, broadband and digital packages.
123. In relation to Ms Smith’s letter to me of 23 April,110 the Director noted that she had had a Virgin Media package which comprised telephone, line rental, broadband connection and television services. He commented, “As a basic package this would be an acceptable claim against her ACA.” He went on to say: “However, in common with many Members, we received from Ms Smith only the monthly summary bill for payment, apart from one month which included an extra page in respect of ‘on demand’ items.”
106 Green Book, Section 3.3.1 107 WE 42 108 WE 46 109 WE 47 110 WE 42
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124. In response to my request for details of Ms Smith’s claims for telecommunications services, the Director reported that she had claimed for her Virgin Media package during 2008 only. The claims had covered eight months and she sought reimbursement for a total of £553.20. They were all paid in full.
125. The Director reported that the Department held only summary invoices for all months apart from the claim for May 2008. This claim had with it supporting documentation that identified the cost of ‘on demand’ films. He commented, “In my view, this is not eligible expenditure against ACA, a point Ms Smith has accepted in her letter to you of 23 April 2009.”
126. The Director included with his response a list of the five ACA claims which had included claims for the Virgin Media package and copies of those claims. The first, dated 4 May 2008, covered the period 1 April to 1 May 2008. The front page of a Virgin Media bill dated 28 March, which gave the total amount due and was to be paid by direct debit around 21 April 2008, was submitted in support of the claim for £68. The second claim, received on 6 June 2008, covered the period 1 May to 1 June 2008. A complete bill dated 25 April 2008, due for payment around 20 May and which included a detailed breakdown of advance charges (for telephone line rental, broadband, and television services) and event charges in arrears (for on-demand and other events) was submitted in support of a claim for £67.
127. The third claim, submitted on 6 October 2008, covered the period 1 September to 1 October 2008. A copy of the front page only of the 25 April bill was submitted in support of a claim for £67. The fourth claim, submitted on 4 November 2008 and covering the period 1 October to 1 November 2008, was also for £67 and was also supported by a copy of the front page of the 25 April bill.
128. The fifth and final claim, submitted on 5 March 2009, covered the period 1 April 2008 to 1 March 2009. It included a claim for telephone and telecommunications, which included £284.20 in respect of the Virgin Media package. The claim was supported by copies of the front pages of bills dated 25 June 2008 (£77.45), 25 July 2008 (£73.50), 26 November 2008 (£76.00) and 30 December 2008 (£57.25).
129. The Director commented that a member of staff had written to Ms Smith in November 2008 pointing out that her claims for September and October had been made with the same supporting invoice received with her May claim.111 The letter asked Ms Smith to submit “updated documents, i.e. a direct debit schedule or a bank statement showing monthly payments.” It went on to say that on this occasion the claim had been paid in full and added, “we look forward to receiving the relevant documents in the near future.”
130. Finally, the Director noted that he had written to Ms Smith on 8 April 2009 confirming repayment by her of the full cost of television services previously reimbursed.
131. Following receipt of the Director’s letter, I wrote again to Ms Smith on 2 June.112 I noted from the itemised bill dated 25 April that the total service charge of £67 was made up
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of £46 advance charges and £21 event charges, and that the claims for other months varied between £57.25 and £77.45. I asked her to clarify why there was this difference between the advance charges and total service charges, if possible by submitting copies of the itemised bills for the other months. I also asked, since it appeared that the summary page of the April invoice from Virgin Media was re-presented with the two subsequent claims, if these claims were revised following the Department of Resources’ letter of 11 November 2008.113
132. Ms Smith replied on 22 June.114 She explained that the charges varied because the Virgin Media package comprised a basic package and then additional charges for events such as films. She did not have copies of the itemised bills. As to the submission of a duplicate of the 25 April 2008 bill in the two subsequent months, she commented:
“I had thought that providing a recurring copy of an invoice for a typical month would be acceptable. However, the Fees Office contacted me by letter on 11 November to say that they needed month by month invoices so any further claims were made against individual invoices. No adjustment was asked for and I am afraid I took the request for ‘receiving the relevant documents in the near future’ to refer to subsequent claims not those covering duplicated months. In hindsight, this led to claims in these two months that may not have exactly matched the actual expenditure. It is, of course, not clear as to whether it resulted in a lower or higher claim than would otherwise have been submitted.”
133. I wrote again to Ms Smith on 25 June.115 I told her that I was considering whether I should submit the matter to the Committee on Standards and Privileges, and I set out my understanding of the facts of this case and invited her to agree with my summary. I also asked how the mistaken inclusion of the event items in the eight months claims occurred, including whether she checked each month’s claim before signing it and how far she checked the supporting documents; whether she accepted that, had she claimed only for the package of advance charges, there would have been no variation in her claims and thus no uncertainty about whether she had under-claimed or over-claimed; and whether she accepted that her claims for event charges which totalled £185.20 were in breach of the rules of the House.
134. Ms Smith replied on 5 July 2009.116 As to my summary of the facts, Ms Smith commented:
“In the main your understanding is correct. The one point of clarification would be that, as I understand it, not all of the ‘event’ charges made in the eight months were ‘namely films’. There were occasions when pay-per-view sport was purchased. I think a description of "charges for additional entertainment elements including films and sport” would be more accurate. Such a description would also echo wording in the Green Book where it prohibits ACA claims for entertainment.”
113 WE 49 114 WE 51 115 WE 52 116 WE 53
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As to how event charges came to be included in the claims, she commented:
“I am afraid I did not see the supporting documents setting out the make up of the charges. If I had I hope that I would have picked up on their unsuitability.
“I accept that there should have been no variation in the amounts claimed had I simply claimed for the basic broadband Virgin services. Variations month by month were reasonably small, typically by less than £11. However that there were any differences should have set alarm bells ringing. I am afraid it did not.”
As to whether Ms Smith accepted that the events were claimed in breach of the rules of the House, she commented:
“I have accepted that claims for entertainment are not allowed against the ACA. I am, of course, sorry that such claims were made and sorry that they were not picked up by the Fees Office when they first occurred. It is a matter of great regret and embarrassment to me that I did not check this element of my claims in more detail.”
135. I replied to Ms Smith on 9 July, accepting her clarification of the description of the event charges.117
136. When I met Ms Smith for our interview on 1 September,118 she repeated her acceptance that she had breached the rules; she had made a mistake which she had rectified as soon as she became aware of it. The entertainment items, which had not been used by her, should not have been claimed in any event. The mistake had occurred on a number of occasions as a result of her not looking at the breakdown of the bills when submitting the summaries in support of her claims; she commented “I didn’t look at the claim carefully enough”. She had not noticed that the claims varied monthly, and had thus not thought about the potential significance of this. She said that, as a result of her experience, she was ensuring that she was more careful with future claims, for example with office costs from the Incidental Expenses Provision. As to the repayment she had made, this deliberately went beyond the entertainment items as she wanted to avoid arguments about other parts of the package that were used by her family.
Findings of Fact
Second Home
137. When Ms Smith entered Parliament in 1997 she already owned a home in Redditch with her husband. She subsequently moved home in Redditch twice, in May 1998 and in May 2004. Her husband and two children are based in Redditch. Her current constituency home is a four bedroom detached house bought for £295,000, on which she and her husband have a joint mortgage.
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138. When Ms Smith entered Parliament she also established a London home, which— apart from a period between 1998 and 2001—has been shared with her sister. (During the first part of this period she was effectively on maternity leave, and then she moved to a flat on her own because her sister had moved to a job that meant she lived outside London.)
139. The location of Ms Smith’s London home has changed on a number of occasions: in 1997 it was a house which she rented jointly with her sister; at some point in 1998 she moved to a flat on her own; in 2001 she and her sister moved to a different address, and they moved again to her current London home in April 2008. In March 2009 Ms Smith sent to the Department of Resources a backdated notification of this change of address.
140. Ms Smith’s current London home is a three bedroom house in South London which she shares with her sister and her sister’s partner. The house was bought for £450,000. Her sister has a mortgage on the home and Ms Smith guarantees the mortgage. Ms Smith also pays £700 per month in rent and contributes £150 a month towards food. She has bought furniture, fixtures and fittings and has contributed to other maintenance costs. Her sister pays the council tax.
141. Members whose constituencies are outside London have (since 1971) been able to claim against the Additional Costs Allowance for the costs of overnight stays in a second home in their constituency or in London, their choice being restricted by the location of their main home. From 1997 to 1999, when she first became a Minister, Ms Smith identified her home in her constituency as her main home. At the time she became a Minister, all Ministers were deemed to have their main homes in London for ACA purposes. Ms Smith accordingly changed the nomination of her main home to London, and claimed against the Additional Costs Allowance for the cost of her overnight stays in the constituency.
142. In early 2004, the Head of the Fees Office wrote to all Ministers to let them know that the rule which deemed that their London home was their main home for ACA purposes was to end. This ministerial requirement was taken out of the next edition of the Green Book in April 2005. Ms Smith left in place the designation of her residence in London as her main home. Accordingly, from 2001 Ms Smith has designated her main home as being a house she shares with her sister and currently her sister’s partner in London.
143. Ms Smith’s claims against the Additional Costs Allowance for her Redditch home were £22,110 in 2006–07; £22,948 in 2007–08 and £19,182 in 2008–09. She has claimed in the categories of mortgage interest, utility bills, council tax, telephone, servicing and maintenance, repairs and cleaning.
144. Ms Smith entered the Cabinet in May 2006 and on 28 June 2007 she became Home Secretary. In June 2007 Ms Smith sought advice from the Fees Office about whether her family home should automatically be her main home for the purposes of the Additional Costs Allowance. On the basis of the information she provided, she was advised that the location of a Member’s main home might not always be where their family resided, and that it was reasonable for her to continue to claim the allowance against her Redditch home given her ministerial responsibilities required her to spend the majority of her time in Westminster.
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145. There are some differences of view between the witnesses as to the number of nights Ms Smith has spent in her London home since moving there in April 2008. Ms Smith’s evidence is that she is present at her London address for the bulk of the week and that over the 2008 summer recess and the 2008 Christmas holiday period she spent a significant proportion of her time there. This is supported by her sister and her next-door neighbour. On the other hand, the complainant—who lives slightly further down the road—believes, on the basis of her recollection of the visible police presence in the road, that Ms Smith stays at her London address on Monday, Tuesday and Wednesday nights whilst Parliament is in session, and does not reside at the property for months and weeks during the summer, at Christmas or at other times when Parliament is in recess.
146. Ms Smith believes that the best evidence of her overnight stays is derived from her ministerial diaries, supported by her personal recollections. The resultant figures, which take some account of the police evidence, are as follows:
Financial year Nights spent in Nights spent in Difference London constituency
2005-06 (from 139 128 11 11 May 2005)
2006-07 151 131 20
2007-08 152 151 1
2008-09 143 161 -18
The police figures, taken with the diary estimates up to 27 June 2007, would suggest a difference of -12 nights in 2007–08 and -37 nights in 2008–09.
147. The Director of Operations in the Department of Resources has confirmed that the cost of Ms Smith accommodating her family in her second home was, in the Department’s view, acceptable under the rules. But it was open to Ms Smith to nominate her constituency home as her main home if the overall facts justified it. He has pointed out that while paragraph 3.11.1 of the Green Book sets out the presumption that a main home is where a Member spends more nights than any other, this is qualified by the word “normally” and Members are invited to consult the Department if in doubt.
148. Ms Smith’s view is that she made the best judgement she could: that she was likely to be spending more nights in London than in Redditch; that she had explicitly separated her family life in Redditch from her work life in London; that London was where she spent most of her time on her parliamentary and ministerial duties; that she would have been wrong to change the designation of her main home at any time from 1999, when she became a Minister, because nothing had qualitatively changed in her circumstances; and that it would have been more difficult to justify having her homes the other way around.
Media Package
149. In the course of the financial year 2008–09, Ms Jacqui Smith made claims against the Additional Cost Allowance for a total of 8 monthly payments for a Virgin Media
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broadband package supplied to her Redditch address. The basic package consisted of telephone line rental, and television and broadband services. In addition to the cost of the basic package, each of the claims also included charges for additional entertainment elements, including films and sport. The first such claim was submitted in May 2008 and included advance charges for April-May 2008. The last such claim was submitted in March 2009, and the last bill claimed for was dated 30 December 2008. Each claim was supported by a summary bill, except for the claim submitted on 4 June 2008, which was supported by an itemised bill, which included a detailed list of charges and which separately identified the costs of the basic package and of the additional entertainment elements. The claims covered eight months within the period from April 2008 to January 2009. There is no claim recorded for the months of June or November 2008. The total sum claimed by Ms Smith in respect of this package amounted to £553.20, of which some £185.20 was attributable to charges for the additional entertainment elements. All these claims were met. The Department of Resources did not identify the mistaken claim for film items in the claim submitted on 4 June 2008.
150. The summary page of the bill submitted in support of the 4 June 2008 claim was re- submitted with the following two claims for September and October. The supporting documents subsequently requested by the Department of Finance and Administration in November 2008 were not supplied, since Ms Smith took the request to be in respect of future claims.
151. The view of the Department of Resources is that Members may claim against the Additional Costs Allowance only for a basic subscription to digital suppliers, and that claims in respect of any additional services would not normally be appropriate. In its view, Ms Smith’s basic Virgin Media package of telephone line rental, broadband connection and television services would be an acceptable claim against the Allowance. The Department takes the view that the additional cost of ‘on demand’ films, as included on the bill submitted in support of Ms Smith’s Additional Costs Allowance claim submitted on 4 June, is not eligible expenditure against the Allowance.
152. Ms Smith fully accepts that claims for entertainment are not allowed against the Additional Costs Allowance, has taken full responsibility for her mistake, and has apologised on several occasions for the fact that she wrongly claimed for the additional entertainment elements. On 28 March 2009, she repaid to the Department of Resources on her own initiative the sum of £400. This payment was made in recognition of her desire to repay her claims in respect of all television services supplied to her Redditch address through the Virgin Media package, namely, both the additional entertainment elements which she accepted should not have been claimed, and also the television element of the basic package, leaving the Additional Costs Allowance to meet the cost of only the most basic broadband and telephone package available.
Standard of Proof
153. I have adopted the civil standard of proof in the course of this inquiry. Most of the facts are not in dispute. It has been necessary, however, to form a judgement in establishing the facts in relation to the location of Ms Smith’s overnight stays. Given the inevitable uncertainties, I think it is reasonable that the standard of proof I have adopted is the normal civil standard, the balance of probabilities.
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Conclusions
154. I deal first with my conclusions on the complaint about Ms Smith’s claims for her media package and then my conclusions on the complaint about the identification of her main home for the purposes of her claims against the Additional Costs Allowance.
Media Package
155. Ms Smith has readily accepted that she should not have included claims for entertainment items, including paid-for films, in the claims she made for her media package against her Additional Costs Allowance. This was because such items were clearly not provided or necessary for the performance of her parliamentary duties. It was unfortunate that this mistake was not picked up by the Department of Resources on the one occasion when Ms Smith submitted a detailed bill showing these items with the claim.
156. But this claim for additional items was not a one-off occurrence. Ms Smith made claims above the basic package costs in each of the eight claims she made since signing up to this media package. She failed to notice that additional entertainment items were being claimed for. She did not see the itemised bill when it was included with her claims, and by her own admission, did not check that claim carefully enough. I recognise that she had many heavy responsibilities at the time, but nevertheless she clearly did not treat her claims with the care expected of all those who look for reimbursement from the public purse. She told me that she was now checking her claims more carefully.
157. Ms Smith has already paid a heavy price for these lapses, in terms of her public standing and the intrusion into her family life. She has also already paid back £400 of the £550 claimed over the period of the contract, which is considerably in excess of the sums represented by the additional entertainment items, which I assess to be about £185. She has apologised.
158. I conclude that Ms Smith was clearly in breach of the rules of the House in claiming for additional entertainment items on her media package in eight separate months in 2008- 09 since these items were not necessary in the performance of her parliamentary duties. I therefore uphold the complaint.
Second Home
159. I need to reach a conclusion on whether Ms Smith acted within the rules of the House in deciding to identify her residence in London as her main home from 2004 to 2009 for the purpose of the claims she made for her constituency home in Redditch.
160. The rules as they applied from April 2004 to April 2009 meant that Members could only claim for a home under the ACA if they had more than one home. The location of their main home was held normally to be a matter of fact; it was normally the one where they spent the most nights in the year. But the rules very clearly allowed for exceptions. The normal expectation relating to the number of nights could be set aside, and this, in my judgement, meant that the rules did not require a Member to identify a residence as their main home when that was manifestly not the case. They allowed the Member to take account of their particular circumstances. In this respect they differed fundamentally from
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the rule applicable to Ministers before April 2004, which deemed them to have their main homes in London, whether or not that accorded with the facts. The principle that Members should take account of their own circumstances is confirmed in the current rule, which first came into effect in April 2009.
161. In considering the decisions made by Ms Smith, therefore, I need to answer two questions:
i. Did Ms Smith have two homes? and
ii. Did she correctly identify her main home?
Did Ms Smith have two homes?
162. On the basis of all the evidence I have received, I consider that, for the purposes of her ACA claims, Ms Smith has two homes – a home which she shares with her sister and her sister’s partner in London; and a home which she shares with her husband and children in her constituency. The arrangement she has for sharing her sister’s home in London is more than some sort of temporary room in a stranger’s house. With one break, it has been a longstanding arrangement that Ms Smith lives with her sister and shares her home when they are both in London. She has the run of the house. She pays a monthly rent and contributes to the household expenses. She has underwritten her sister’s mortgage application. While her sister owns the house, in any normal understanding of the term it is Ms Smith’s home when she is in London.
163. Ms Smith’s constituency residence is clearly also her home. She has a mortgage on the property. It is a substantial property which she shares with her husband and their children. It is the home which she lives in when she is in her constituency.
164. I conclude therefore, that for the purposes of her ACA claims, Ms Smith had two homes – a home which she shares with her sister and her sister’s partner in London; and a home which she shares with her husband and children in her constituency.
Did Ms Smith correctly identify her main home?
165. Since Ms Smith had more than one home during the period in question—2004 to 2009—and given that one was in the constituency and one was in London, she needed to identify which was her main home, and which was her second home on which she would make ACA claims. Ms Smith identified her London residence as her main home. She made claims on her house in Redditch.
166. Ms Smith believed that the identification of her London home as her main home was consistent with her role as a Minister; that it reflected where, as a Minister, she spent and was likely to spend most of her time (including most of her nights); that she would have been criticised if, as a Cabinet Minister, she had sought to have her main home in her constituency because it would imply she was a “part time Home Secretary”. And she considered that she should only have changed the identification of her main home when the ministerial rules changed in 2004 if there had been a qualitative change in her circumstances, which in her view there had not been. Ms Smith has accepted that she had a choice. She considers that the choice she made was fully within the rules of the House as
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they were at the time, and that this choice properly reflected her personal circumstances and her ministerial commitments.
167. I agree that Ms Smith had a choice, but I consider that the choice she made was not consistent with the rules of the House. I consider that was because her decision gave insufficient weight to the nature and use of her two homes and the balance of nights she was to spend in London and in Redditch.
168. The rules provided that when the location of a Member’s main home was not a simple matter of fact (because the Member had more than one home), the objective test was that their main home was normally the one where the Member spent more nights than any other. Ms Smith has said that she judged that, as a Minister, she would be spending more nights in her London home than in her Redditch home. On the evidence I have seen, this proved to be a correct prediction for the period until she was appointed Home Secretary in May 2007. But even so, she had the option of identifying Redditch as her main home had she considered the normal expectation did not fit her personal circumstances. She did not do so. She also had the option of changing her designation once it became clear to her, as it would seem likely to have become clear some time towards the end of 2007, that as Home Secretary she was spending more nights with her family in Redditch than she was spending in her London home. That would have meant accepting the objective test as meeting her personal circumstances. She did not do so. In my view, this was because Ms Smith did not give sufficient weight either to the objective overnights test or to the need to consider whether she was an exception to the rule.
169. Instead, Ms Smith seems to have put her main emphasis on where she felt she was spending most of her time as a Minister, which was clearly London. This conclusion is reinforced by Ms Smith’s telling me after our concluding interview that, if she could, she would now identify Redditch as her main home because she had ceased to be Home Secretary. That decision is, in my judgement, right, but, I believe, for the wrong reasons. It is not the change of job which should count, but the nature and use of the Member’s accommodation and the pattern of their overnight stays. Ms Smith’s emphasis on her ministerial jobs as the determining factor in identifying her main home led to her drawing a conclusion that was both contrary to the rules and inconsistent with a normal understanding of the term “main home”. The question is not where a Member spends their working life. It is where the Member spends most time when they are at home and whether that location is, in reality, their main home. The nature of the accommodation and how it is used, are both significant factors in determining where a Member’s main home is situated.
170. In coming to a conclusion, therefore, on this matter, Ms Smith’s pattern of overnight stays is an important factor, but not the sole consideration. Had it been, then she would have been in breach of the rules from some point after she became Home Secretary in May 2007 because from then she started to spend more nights in Redditch than she did in London.
171. The police figures suggest a considerably greater use of the Redditch home for overnight stays than the estimates based on Ms Smith’s diaries. I have accepted the diary based figures as being, on the balance of probabilities, the most likely reflection of her overnight stays. But since these were not the sole determining factor, I do not believe the
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choice of figures substantially affects my conclusions. The direction is clear. After becoming Home Secretary, Ms Smith spent more nights in her home in Redditch than she did in her home in London.
172. Since the number of nights is not the sole determining factor, it is necessary to consider whether the exception provided by the rules should have been used by Ms Smith to reflect more accurately her personal circumstances. And it is to that I now turn.
173. The home Ms Smith owned is the home in Redditch, not the home in London. Her husband lives in Redditch. Her children are being brought up there. They are a close-knit nuclear family. When her ministerial duties and her parliamentary duties in London allowed, she returned to Redditch overnight. She was able to spend a substantial number of nights there throughout the period in question. From 2007, she started to spend more nights there than in her London home.
174. On the other hand, the London home is not owned by Ms Smith, but by her sister. It is the full-time residence of her sister and her sister’s partner. She lives there when she has to stay overnight for her work in London, but not substantially or frequently for other reasons. While clearly Ms Smith is close to her sister, her life outside her work (limited though I am sure it had to be) is not based in her sister’s home in London; it is based in her family home in Redditch. The gravitational pull in terms of family and property is, on the basis of all the evidence I have seen, Redditch and not London.
175. I consider therefore that the difference between the nature of the two properties and the use to which they were put by Ms Smith, including the balance of nights she spent in both properties, is such as to require me to conclude that Ms Smith’s decision to identify as her main home from April 2004 to March 2009 the home which she shared with her sister and her sister’s partner in London was not in accordance with the rules of the House at the time.
176. I come to this conclusion because I consider the purpose of the rule was to help the Member establish the location of their main home. It did not require them to reach an unnatural interpretation of that term. In my judgement, Ms Smith misdirected herself by focusing on the nature and location of her job (where she spent her long working day) and not the nature and location of her overnight accommodation (where she went whenever her working life allowed). As a result, Ms Smith reached a mistaken interpretation of the term ‘main home’ which, on any objective view, did not fit her personal circumstances and which was therefore contrary to the purpose as well as to the letter of the rule.
177. I add the following postscripts to my conclusion:
1. Ms Smith should have identified to the Department of Resources the change in the address of her main home in London when she and her sister moved in 2008. She did not do so until after this inquiry began. Failing to notify the Department properly of such a change was a breach of the rules. Ms Smith has accepted that she breached the rules in this regard. I have no evidence, however, that it would have made a material difference to any of her expenses claims.
2. Ms Smith has argued that, when the rule for Ministers changed in 2004, there was no reason for her to change her designation since there had been no change in her
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circumstances. There was, of course, a change in her circumstances on becoming Home Secretary, since, importantly, the pattern of her overnight stays changed and she should have responded to that. In any event, when rules change (as they now have with the new Green Book for 2009) then Members do need to check their circumstances against the new rules, even if those circumstances have not changed, to ensure that they remain compliant. It is imprudent for Members to assume that the changes in the rules will not affect them as long as their own circumstances do not change.
3. Ms Smith has argued that her expenses claims for her Redditch property provided better value for money than her likely claims for her London home. I have no way of knowing what Ms Smith’s claims might have been, although it might be difficult to see how they could, under the current ownership arrangements for the London home, match those for Redditch, since Ms Smith could not have claimed for mortgage interest or rent on that home. But in any event, given that until 2008-09 Ms Smith’s Redditch claims were near the maximum amount available each year, it is difficult to see how these could have been significantly exceeded by her claims on a London property.
178. I conclude, therefore, that Ms Smith was in breach of the rules of the House from 2004 to 2009 in identifying the London residence she shared with her sister as her main home. She should have exercised the discretion given in the rules to identify the residence she shared with her family in her constituency as her main home. This would have reflected properly her personal circumstances, the nature and use of her accommodation, and the pattern of her overnight stays, in particular from May 2007, from when she spent more nights in her Redditch home than she did in London. I therefore uphold the complaint. Ms Smith was also in breach of the rules in failing to notify the House authorities promptly of the change of her address in London in April 2008.
11 September 2009 John Lyon CB
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Written evidence received by the Parliamentary Commissioner for Standards
1. Extracts from article in the Mail on Sunday, 8 February 2009 HOME SECRETARY Jacqui Smith has claimed more than £116,000 in Commons expenses for a 'second home' while effectively lodging with her sister.
Ms Smith claims the maximum parliamentary second-home allowance, currently a tax-free £24,006 a year, on her £300,000 detached house in her Redditch constituency in the Midlands, where her husband and two young children live.
She is able to do so because she has told the Commons authorities that her 'main home' is a house in London owned solely by her sister, Sara, where she stays on some weekdays.
…
Ms Smith last night denied she had done anything wrong. Her spokeswoman said: “Jacqui has documentation to prove that everything is completely above board. It has been cleared by the...Commons Fees Office.”
She denied that Ms Smith was benefiting by nominating her London address as her “main home” instead of her constituency home.
The spokeswoman said Ms Smith spends “the bulk of the week” at her sister's home in London. Asked how many nights she stayed there, the spokeswoman said: “She tends to go home Thursday evenings and returns on Sunday or Monday.” When it was pointed out that this suggested an average of three-and-a-half days a week, the spokeswoman replied: “She doesn't count the number of nights.”
Nor would Ms Smith disclose if she paid her sister rent. The Home Secretary “makes a contribution to the household”, said the spokeswoman, who refused to provide further details.
The spokeswoman denied Ms Smith was “lodging” with her sister, and said the two “shared the house”.
…
Jacqui Smith is also on the electoral roll in her Redditch constituency, where she and husband Richard own a large detached house in an exclusive residential area.
…
On her parliamentary website, the Home Secretary emphasises her Midlands roots. Far from stating that her main home is in London, her official biography suggests that her Redditch house is the one she regards as her real home.
It states: “Jacqui grew up in Malvern, Worcestershire, before moving to [her constituency] in 1986. She still lives in [ her constituency] with her husband […] and sons [...].”
2. Letter to the Commissioner from Mrs Jessica Taplin, 16 February 2009
My husband and I wish to make a complaint about Ms Jacqui Smith's claim that her sister's house on […] Road is her primary residence. And ask that this claim be investigated to the full extent by the Parliamentary Commissioner for Standards. I have previously sent an email to the Houses of Parliament stating this but have not heard back.
As I understand it under the rules, the main residence is where the MP "spends more nights than any other". Since Ms Smith moved into the street last April it has been very clear to all living on the road that she resides
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there for less than half the week. Like clockwork she stays on Monday, Tuesday & Wednesday nights whilst Parliament is in session.
Neither my husband or myself can remember an occasion when there were police positioned outside the house on a Sunday night or Monday morning, apart from this morning (16th February) when they were outside the house. As there are always police stationed outside the property when she is in residence this is a very clear and simple indicator.
During the summer and at Christmas, and other times Parliament are in recess the policemen disappear altogether for months and weeks respectively at a time, again a very simple indication of her not residing at the property.
Having done the simple maths based on 3 days a week minus at least a full month at summer and at least 2 weeks complete absence over the Christmas period—there seems to me to be no confusion as to the simple truth of the matter since moving into the property Ms Smith does not as the guidance states is required “spends more nights than any other” at the address. And as such her claim that this is her primary residence should be investigated further. Surely a very simple and open way of this being done is to look at the police log for the period from April 2008 - as this will provide the exact information as to what is the truth of the situation.
When Ms Smith started staying on the road, my husband & I felt this was a very positive reflection on her— but to now find out that in reality the nature of the whole situation is based on untruths, her office’s claim cited in the papers is misleading at the very least, shines a very poor light on someone who should as Home Secretary be setting the nation a good example.
16 February 2009
3. Letter to the Commissioner from Mrs Jessica Taplin, 16 February 2009
This letter follows hot on the heels of my previous letter of the same date, as I have just seen a video clip of Ms Smith interviewed about this on the BBC news website in which she paints a misleading picture: http://news.bbc.co.uk/1/hi/uk/7892219.stm
Ms Smith states within it that:
"The place that you spend the most time should be the place that you allocate as your main home".
She then states she spends the majority of time working in London.
"People have said things that are just plain wrong... about the amount of time I spend in London".
The people who she must be referring to above are myself and the other residents of [… Road] who were interviewed this weekend. What is quite incredulous is that Ms Smith is the one who is being misleading—my husband and I clearly stated she spends 3 nights staying at the house on [… Road] for the majority of weeks when parliament is in session & is not present at the address when parliament is in recess to our knowledge - we did not refer to her staying in London in general.
She may very well spend most of her time in London—but being "in London" does not equate to spending the majority of nights at the property she claims to be her primary residence.
Not once in the interview does she clearly and unequivocally state that she spends the majority of nights at the address in [… Road]—and this is core to the whole issue.
It is imperative that this is the question that is answered directly and without avoidance and impartial evidence then provided that support her claim (ie police logs) so that the public and parliament know the truth of the situation. Rather than allowing her to manipulate the press coverage by omission and use of language rather than fact.
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We the general public must put our faith in your department's role & ability to discover and reveal the unambiguous truth of the situation with regards to the nights she spends in both her primary and secondary properties.
16 February 2009
4. Letter to Rt Hon Jacqui Smith MP from the Commissioner, 17 February 2009
I would welcome your response to a complaint I have received from Mrs Jessica Taplin about the identification of your residence in London as your main home for the purposes of your claims against the Additional Costs Allowance.
I attach a copy of Mrs Taplin’s two letters to me of 16 February. In essence her complaint is that your London residence is not your main home as defined by the rules of the House, and that you should not, therefore, have so designated it for the purposes of your claims against the Additional Costs Allowance.
The Code of Conduct for Members of Parliament provides in paragraph 14 as follows:
“Members shall at all times ensure that their use of expenses, allowances, facilities and services provided from the public purse is strictly in accordance with the rules laid down on these matters, and that they observe any limits placed by the House on the use of such expenses, allowances, facilities and services.”
Section 3 of the Green Book on Parliamentary Salaries, Allowances and Pensions published in July 2006 sets out the rules for the operation of the Additional Costs Allowance. Section 3.1.1 sets out the scope of the allowance as follows:
“The Additional Costs Allowance (ACA) reimburses Members of Parliament for expenses wholly, exclusively and necessarily incurred when staying overnight away from their main UK residence (referred to below as their main home) for the purpose of performing Parliamentary duties. This excludes expenses that have been incurred for purely personal or political purposes.”
Paragraph Section 3.2.1 sets out the eligibility requirements as follows:
“You can claim ACA if:
a) You have stayed overnight in the UK away from your only or main home, and
b)This was for the purpose of performing your Parliamentary duties, and
c)You have necessarily incurred additional costs in so doing, and
d) You represent a constituency in outer London or outside London.”
The principles of the allowance are set out in paragraphs 3.3.1 as follows:
“You must ensure that arrangements for your ACA claims are above reproach and that there can be no grounds for a suggestion of misuse of public money. Members should bear in mind the need to obtain value for money from accommodation, goods or services funded from the allowances.” and in 3.3.2:
“You must avoid any arrangement which may give rise to an accusation that you are, or someone close to you is, obtaining an immediate benefit or subsidy from public funds or that public money is being diverted for the benefit of a political organisation.”
Section 3.11.1 gives the definition of the main home as follows:
“Main home
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When you enter Parliament we will ask you to give the address of your main UK home on form ACA1 for the purposes of ACA and travel entitlements. Members are expected to locate their main homes in the UK. It is your responsibility to tell us if your main home changes. This will remain your main home unless you tell us otherwise.
“The location of your main home will normally be a matter of fact. If you have more than one home, your main home will normally be the one where you spend more nights than any other. If there is any doubt about which is your main home, please consult the Department of Finance and Administration.”
I would welcome your response to the complaint, taking account of the rules which I have summarized above. In particular, it would be helpful if you would:
1. set out the arrangements you have made for your accommodation in London, and in your constituency, including any changes to those arrangements in the last seven years;
2. explain the nature of this accommodation in London; why you consider it to be one of your homes; and also why you consider it to be your main home;
3. explain the nature of your accommodation in your constituency and why you consider it not to be your main home;
4. set out separately for each of the last three years, and to the best of your recollection, the number of nights you have spent in your London residence, in your constituency residence, and elsewhere;
5. explain what costs arising from your constituency residence you claim from parliamentary allowances;
6. set out the nature of the discussions you have had with the House authorities about your arrangements.
Any other points you may wish to make would, of course, be very welcome.
I attach a note which sets out the procedures I follow. I am letting the complainant know that I have accepted her complaint and am writing to you about it. I shall also confirm this in response to any press enquiries and in replying to those who have written to me. It would be most helpful to have a response to this letter within the next three weeks. If there is any difficulty about that or you would like a word about any matter, do please get in touch with me at the House.
I would be very grateful for your help on this matter.
17 February 2009
5. Letter to the Commissioner from Rt Hon Jacqui Smith MP, 24 February 2009
Thank you for your letter of 17 February 2009 in which you ask for my response to a complaint received from Mrs Jessica Taplin dated 16 February and to respond to a series of questions.
Thank you for enclosing a copy of Mrs Taplin’s two letters. I hope it will be helpful for you if I address the elements of Mrs Taplin’s letter—and her interview reported in the Mail on Sunday which predated her complaint—which are clearly incorrect.
Mrs Taplin states that “During the summer and at Christmas, and other times Parliament are in recess the policemen disappear altogether for months and weeks respectively at a time, again a very simple indication of her not residing at the property.”
I can state that over the 2008 summer recess and the 2008 Christmas holiday period I spent a significant proportion of my time at my London home.
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Mrs Taplin places great store by the visibility of the police presence outside my home to support her assertions. Whilst it is clearly inappropriate to give detail about the nature of my protection, I am happy to discuss these arrangements with you in greater depth if you require. It may be helpful if I make clear that
• I have specifically asked the Metropolitan Police to be as unobtrusive as possible to minimise disruption to my neighbours. [ … ]
• [ … ]
• [ … ]
Mrs Taplin states that “Since Ms Smith moved into the street last April it has been very clear to all living on the road that she resides there for less than half the week, like clockwork she stays on Monday, Tuesday and Wednesday nights whilst Parliament is in session.”
• As I point out above, it would not be clear on the basis of a visible police presence alone whether I was resident at my London home. Furthermore, given the unpredictable nature of events that I deal with as Home Secretary, there is no set pattern to my arrangements.
However, I am confident that I have abided by both the letter and the spirit of the guidance laid down by Parliament for the claiming of ACA. To respond specifically to the points that you have asked me to cover:
1. set out the arrangements you have made for your accommodation in London, and in your constituency, including any changes to those arrangements in the last seven years;
2. explain the nature of this accommodation in London; why you consider it to be one of your homes; and also why you consider it to be your main home;
3. explain the nature of your accommodation in your constituency and why you consider it not to be your main home.
In 1997 after my election to Parliament, I rented a house in London with my sister Sara. I already owned a home in my constituency with my husband. I made this decision as I realised that being an MP would involve me having two homes—one in London and one in Redditch, and being away from my young family. I, therefore, wanted my London home to be more than simply a bolt hole, I wanted it to be a real family home and I have a close relationship with my sister.
In May 1998, I moved into [… Road]... This was just before the birth of my second son and we moved in order to provide more space.
Later in 1998, when I returned to Parliament from effective maternity leave, I moved in London to a flat on my own. During this period, my sister moved to another job that meant that she lived outside London so we could not share.
In October 2001, I moved in London to […Road] to once again share with my sister.
In May 2004, I moved in [the constituency] to [… Road]. This is my current constituency home. It is a four bedroom detached house which we bought in 2004 for £295,000. I have a joint mortgage on this property with my husband. I have not had any reason to have it valued recently. We have not carried out any major improvements or renovations since we bought the house.
In April 2008, I moved in London to […Road] where I currently live with my sister and her partner. This is a three bedroom house which was bought for £450,000. My sister has a mortgage on the house. I am a guarantor of the mortgage. There have been various newspaper descriptions of my living arrangements in this house—most of which are wholly inaccurate. I do not “rent a room”, I share the house. I pay rent of £700 a month on which my sister pays tax. In addition, I contribute to other bills such as utilities and cleaning. I buy the TV licence. We eat together and I contribute about £150 a month towards food. I have bought fixtures, fittings and furniture throughout the house. I recently paid £1000 as a share of having a new boiler. I have entertained friends and other family members there. In particular, we chose to have a third bedroom partly so
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that my children can have a room to sleep in when they come up in school holidays and for weekends. We provide emotional support to each other when photographers are camped outside!
For all these reasons and most importantly because it is my base for most of the week, I consider this to be my main home in the terms set out in ACA guidance.
It may be helpful if I clarify my interpretation of the ACA guidance and how I sought advice on this interpretation.
In July 1999, I was appointed as a Minister. Up to February 2004, when the Fees Office circulated a letter,119 I understood that Ministers had no choice over which of their homes to nominate as their main home. It had to be their London home as it was assumed that Ministers would spend the majority of their time in London. I consider this to be a wholly rational assumption for the majority of Ministers. In judgements that I have made about the nomination of my main home, this precedent seems to me to be an important factor. It weighed strongly with me in the decision not to change the designation of my main home after 2004 when the rules changed to allow Ministers to nominate either their constituency or their London home. Furthermore, by 2005 I was a senior Minister and entered the Cabinet in May 2006. I believed that I would be spending more time in London as a Cabinet Minister, as has in fact been the case.
However, I am also aware that some people have argued that as my children live in Redditch, this must be my main home.
When I became a Minister, my husband and I did consider whether to move our children to London. However, they were born in Redditch, go to school there and have established friends and activities there. We, therefore, took the decision that I would travel backwards and forwards and the children would be settled in Redditch with their father to look after them in the week. We took a conscious decision to split the main family home from my main home. I noted that in your report on Ed Balls and Yvette Cooper it was the location of the individual Member that was decisive in determining where time was spent—not where the family were based.
I also understand the need to “seek advice in cases of doubt” as spelt out in Mr Speaker’s introduction to the Green Book. That is why my husband, Richard Timney, on my behalf, made contact with the DFA in June 2007 to seek further advice. I enclose a copy of the letter that I then sent to follow up the phone call and a copy of the response.
4. set out separately for each of the last three years, and to the best of your recollection, the number of nights you have spent in your London residence, in your constituency residence, and elsewhere.
In order to provide you with details for each of the last three calendar years, I have requested copies of my Ministerial diaries from Jan 2006. I have compared these with my constituency and personal diary and with my recollection where the diaries are not clear or are incomplete. My best estimates are that:
In 2006, I spent 159 nights in London, 135 nights in Redditch and 71 nights away on Ministerial business or holiday.
I spent 183 days in London, 107 days in Redditch and 75 days away.
In 2007, I spent 153 nights in London, 146 nights in Redditch and 66 nights away on Ministerial business or holiday.
In 2007, I spent 177 days in London, 122 days in Redditch and 66 days away on Ministerial business or holiday.
In 2008, I spent 150 nights in London, 154 nights in Redditch and 62 nights away on Ministerial business or holiday.
119 WE 6
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In 2008, I spent 166 days in London and 131 days in Redditch and 69 days away on Ministerial business or holiday.
From consulting my diary there are two factors that may be helpful in explaining these figures.
Firstly, I have undertaken more overnight and overseas ministerial trips during 2008. It turns out that they have taken place on nights that I would usually have been in London.
Secondly, some of the discrepancy between the number of days and nights spent in each location is due to my being able and prepared to travel to Redditch very late at night and to set out from [the constituency] very early in the morning in order to conduct Ministerial business.
If you require further clarification on any of these details, I am happy to provide it. I am also happy to provide you with details for each of the last three financial years if you prefer. Similarly I can provide you with information about the number of nights I have spent in each location so far in 2009.
As Home Secretary, I need to be prepared to respond quickly to events and to spend extended periods of time in London—as was the case immediately after I took up the job in 2007. At that point, I could not predict how many nights I would need to spend in London, but it was a reasonable assumption for me to have made that I would spend more nights in London.
In total in this period, I have spent 462 nights in London and 435 nights in Redditch.
5. explain what costs arising from your constituency residence you claim from Parliamentary Allowances.
In the last three years I have claimed £22,110 in 2006/7; £22,948 in 2007/8 and my claims so far this financial year are at a slightly lower level.
I have claimed in the categories of mortgage interest, utility bills, council tax, telephone, servicing and maintenance, repairs and cleaning. I would be happy to provide claim forms and receipts for each of these years.
6. set out the nature of the discussions you have had with the House authorities about your arrangements.
I hope that I’ve covered this above and in enclosing the letters that I sent and received from the DFA.
Thank you for giving me the opportunity to respond to Mrs Taplin’s complaint. I have attempted to be as frank as possible about my circumstances. However, I would want you to know that we have been subject to incidents at both my addresses in recent days and that it is very important that disclosures about my movements and security arrangements do not facilitate further difficulties or concerns.
I would be happy to provide any further information that you need and to come to talk to you in more detail about the background.
24 February 2009
6. Letter to all Ministers and Office Holders receiving the Additional Costs Allowance, from the Director of Operations, Department of Finance and Administration, 26 February 2004
I am writing to you about a change in the rules governing additional costs allowance (ACA) for Ministers and paid Office Holders.
Under the Resolutions of 20 December 1971, Ministers and paid Office Holders have been deemed to have their main homes in London, whether or not it accorded with the facts. This has prevented their claiming reimbursement of costs associated with overnight stays in the capital. This restriction has now been removed.
This change means that in future the ACA rules will now he the same for all Members. If you have not done so since July 2003, you now need to complete form ACA1 (available via the Intranet at […]) in order to designate a main home. Please submit this form by the end of March.
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Your main home will normally be the home where you spend more nights than any other. You will be able to claim the additional costs allowance only if you are staying away from this address. If you spend more nights in your constituency home than in any other, you may be now able to claim for overnight stays in London.
If you want to change the nomination of your main home, please contact me or […], my deputy, so that we can advise you on the implications and on the documentation we will require.
26 February 2004
7. Letter to Head of Validation Team, Fees Office, House of Commons from Rt Hon Jacqui Smith MP, 19 June 2007
My husband, Richard, had a very useful conversation with [an official] in your office last week about arrangements for my ACA claims. I wanted to write to confirm my arrangements.
When I first became a Minister in 1999 it was deemed that Ministers had their main home in London as a matter of course. I, therefore, claimed my London home as my main residence and have continued to. In recent years that "rule" has been relaxed with Ministers now able to say that their main home is not in London.
My ministerial duties continue to extend my residence time in London but I was concerned that I hadn't clarified my "main residence" designation formally. In particular, I asked for advice about whether the home where my family live should automatically be my main home. The advice of your office was that this wasn't relevant. I would welcome a confirmation of this.
Certainly, whilst I remain a Minister (with the extra London and non-constituency-based duties this entails) it seems reasonable to continue to deem my "main home" as being in London. Should my job change I will take further advice as the amount of time I spend based in London may reduce. Please could you confirm that this fulfils the conditions of the ACA.
Thank you for your help.
19 June 2007
8. Letter to Rt Hon Jacqui Smith MP from Head of Validation and Enquiry & Advice Teams, Department of Finance and Administration, House of Commons, 11 July 2007
Nomination of main residence - Additional Costs Allowance 2007/08
Thank you for your letter, dated 19 June 2007, regarding the nomination of your main residence under the Additional Costs Allowance.
The Members' Green Book on Parliamentary Salaries, Allowances and Pensions states "your main home will normally be a matter of fact". This, however, is not always the case so the Green Book provides a further definition of your main home as "the one where you spend more nights than any other" (p11, section 3.11.1).
I can confirm therefore that the location of a Member's main home may not always be where their family reside. I agree with your assertion that is reasonable to continue to claim the allowance against your constituency home given your ministerial responsibilities require you to spend the majority of your time in Westminster.
Should your circumstances change please do not hesitate to contact us for further advice as any change in the location of your main home may have wider implications for your travel arrangements.
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11 July 2007
9. Letter to Rt Hon Jacqui Smith MP from the Commissioner, 2 March 2009
Thank you very much for your letter of 24 February responding to mine of 17 February about this complaint in respect of the identification of your residence in London as your main home for the purposes of your claims against the Additional Costs Allowance.
I was most grateful to receive such a full and prompt response. This will be very helpful to me in the resolution of this complaint and I do appreciate it. I appreciate also the need to protect your security. If I decide to prepare a memorandum for the Committee on Standards and Privileges, I will both take close account of that consideration and show you all the factual material I would propose to submit to the Committee in advance so that you can comment on the security aspects of any disclosures in that material. It would then be open to me to redact any references which raise issues and which are not essential for the understanding of the evidence. There is also an additional stage where a Member can ask the Committee not to publish evidence which I have submitted to it.
Turning to your letter, you kindly offered to let me have the days and nights information on the basis of each of the last financial years. It would, indeed, be helpful to have that if you are able to produce it for me. It would also be helpful to have both the number of nights so far this financial year and so far in 2009 as you suggest. Thank you for your help with this.
Since it is widely known that you receive police protection, I would like to ask your permission to approach the Metropolitan Police Service, and, through them, the West Mercia Constabulary to ask for information based on their logs. Again, I do not need information in more detail than you have provided to me and would not wish to put your personal security at risk in any way, but I think it would be helpful for me to have this information. I hope therefore you might agree to me approaching the police to ask if they could provide it to me. I hope also you might agree that I may share with the police the statistical information about the number of nights and days spent in each location which you have given me.
Finally, I set out in my letter of 17 February the provision in Section 3.1.1 of the Green Book describing the scope of the Additional Costs Allowance. In explaining that section, the answer to the frequently asked question “what can I claim?” given in the preamble to Section 3 is as follows:
“Only those additional costs wholly, exclusively and necessarily incurred to enable you to stay overnight away from your only or main UK residence, either in London or in the constituency. If you receive the London Supplement you will not be eligible.”
Could you let me know whether you considered your claims under the Additional Costs Allowance against the criterion that your claims must only be for those additional costs which enable you to stay overnight in your constituency, given that I take it from your letter that you have owned a home in the area with your husband since before you were elected to the House in 1997?
I would be happy to have a separate response to this final point if it enables you to respond more quickly to the earlier matters raised in this letter. I can then get on, if you agree, with contacting the police service.
Thank you again for your prompt help on this matter.
2 March 2009
10. Letter to the Commissioner from Rt Hon Jacqui Smith MP, 26 March 2009
I am pleased to provide you with the information you request about the number of nights I have spent in London and in Redditch on the basis of each of the last financial years. My best estimate, having referred to both ministerial and personal diaries and according to my own recollection, is as follows.
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2005/06 (Starting after the General Election—May 10th 2005—March 31st 2006)
142 nights in London
130 nights in Redditch
55 nights on ministerial or personal trips
2006/07
150 nights in London
133 nights in Redditch
82 nights on ministerial or personal trips
2007/08
157 nights in London
147 nights in Redditch
62 nights on ministerial or personal trips
2008/09 (includes projections to the end of March 2009)
146 nights in London
155 nights in Redditch
64 nights on ministerial or personal trips
In terms of the figures for the current financial year (2008/09), you will note that had one more night per month been spent in London rather than in Redditch the balance would have been more than reversed.
On the basis of these figures, I maintain the position I set out in my letter to you of 24 February that I made a wholly reasonable judgement that I would spend more nights in London than at any other property. I based that judgement on:
1. Previous rules, in place until February 2004, that assumed a Minister's main home would be in London.
2. My experience of previous financial years, in which I spent more nights in London than in Redditch.
3. My expectation, as Home Secretary, that I would need to be in London with no warning and could therefore spend more rather than less time in my London home.
My letter of 24 February also identified two important factors in how my role as Home Secretary has affected the balance of nights spent in London and in Redditch. The first is that I have undertaken more Ministerial trips overseas. As these largely take place during the working week, they will tend to reduce the number of “London nights”. The second is that there are many times when I have departed very early from Redditch or arrived very late in Redditch. These days have obviously been spent in London, and had I not been able to depend on a ministerial car in Redditch, I certainly would have spent these nights in London as well.
You raise the issue of my police protection. I have considered your request carefully, in view of the important issues it raises for the relationship between protection officers and the principals whom they protect, and in view of the potential implications your request may have for others who are covered by protection arrangements.
Given these wider implications for protection arrangements, I sought advice from Sir David Normington, the Home Office Permanent Secretary, on how to respond to your request. Having discussed the matter with the
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Cabinet Office, Sir David's response is attached. You will wish to judge whether to approach the Metropolitan Police Service and, through them, the West Mercia Constabulary, along the lines you propose.
Having no familiarity with the type of records which may be held, however, I am not in a position to judge how accurate they may be. As you will appreciate, accuracy in these matters is of paramount importance to me.
My own view is that the most accurate records for my movements are my Ministerial and personal diaries, supported by my own personal recollection. In the instance of providing access to a Home Secretary's Ministerial diary—a document maintained and owned by the Home Office—I understand this would be an unprecedented step, but I would be very happy to arrange an opportunity for us to go through this and my other diaries for the years in question.
You ask in your letter whether I consider my claims under the Additional Cost Allowance criterion are justified given that I already owned a home in Redditch. My interpretation of this condition has always been that the “additional” element related to additional costs involved in having to have two homes in order to carry out both parliamentary and constituency duties. I have never interpreted “additional” as being about whether a particular home was added after election to Parliament.
When I was elected to Parliament I needed to have a residence in London too—the distance for commuting is too great. There was a genuine need for an additional residence and the nomination for which was to be my main residence only changed when I became a Minister in line with the rules at the time.
However, the fact that I have maintained a home in Redditch—in addition to my home in London—is of course directly related to my role as a Member of Parliament. If I wasn't an MP, I would only need one home and may well have sold my Redditch home to move elsewhere. I, therefore, believe that the costs that I have claimed for my Redditch home have been precisely to enable me to stay overnight in my constituency.
I hope that you find this clarification and the new figures helpful. Please do not hesitate to contact me again should you require further information. As ever I am very keen for this matter to be resolved as quickly as possible.
26 March 2009
11. Letter to Rt Hon Jacqui Smith MP from the Permanent Secretary, Home Office, 25 March 2009
You asked me for my views on the principle of using police records, collected in the course of your personal protection, to verify the number of nights you have spent in London and in Redditch.
I have discussed this with [the Head of Propriety and Ethics] in the Cabinet Office. Her advice is attached.
I very much agree with that advice. It would be an unusual and, as far as we know, an unprecedented step for police records to be used in this way. We would greatly prefer it, if all other avenues for resolving this matter could be used before asking the police to release their records.
The Home Office is, as you know, responsible for the policy on personal protection within Government. […] We do not normally even confirm or deny whether individuals receive protection and certainly never reveal any details about the nature of that protection.
The police, of course, are responsible for the provision and operation of protection. They decide on its details, in consultation with the individual concerned and the Home Office and also place a high priority on confidentiality and privacy. It is entirely a matter for them what records they keep. I do not know how full these records are or what police resource might be involved in collating usable information.
It would therefore be a highly unusual step to reveal any information relating to personal protection, even to the Parliamentary Standards Commissioner. Personal protection is provided for just that—the protection of the individual. It is not designed to provide a record of an individual's movements and private arrangements. Many senior politicians accept protection as a necessary consequence of the job they do, but dislike the
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intrusion into their and their families' privacy which it necessarily involves. If, in the future, they thought that it might be used to provide personal information to a third party, I fear they may look at protection in a completely different way.
For all these reasons I, like [the Director of Propriety and Ethics] would much prefer it, if police records were only used as a last resort. Following discussions with her, I have, however, agreed with you that, in line with your wish to be as helpful as possible to the Standards Commissioner, he can have access to your Home Office diary. These are official diaries prepared by civil servants and, although they would no doubt require some interpretation and commentary, they are, unlike police records, an official account of your movements. I should have thought that they will provide the basis for verifying your stays in London, Redditch and elsewhere. But as [the Director] points out, this release is in itself a rare occurrence for Ministers with a high level of personal protection, and I would want to stress that we would never normally make the diaries accessible to anyone.
25 March 2009
12. Letter to the Permanent Secretary, Home Office from the Director of Propriety and Ethics Team, Cabinet Office, 25 March 2009
You and I have discussed the issue of access to police protection records in relation to the complaint received by the Parliamentary Commissioner for Standards relating to the Home Secretary. […] also phoned me about the issue.
Throughout our discussion, we have been clear that the investigation is a matter for Parliament and we would not wish to do anything which could be seen to be obstructing the inquiry. We have also been acutely aware of the Home Secretary's wish to be as helpful as possible to the Parliamentary Commissioner as he conducts his investigation. However, it is also the case that there is a read across to the Home Secretary's ministerial responsibilities as both the official diary and provision of protection relate to her ministerial role. Therefore, both the Cabinet Office and Home Office have an interest.
In terms of Ministers' diaries, I can think of only one occasion where we have provided access to an external body to a Minister's diary and that was to the Information Commissioner […] It was agreed to allow access rather than provide a copy on grounds of privacy and security. This request raises similar issues as [ … ] the Home Secretary […] in receipt of protection and as a result […] diaries will contain some very personal information. However, I can appreciate in this case how a ministerial diary may provide an evidence base to establish the Home Secretary's movements, and therefore agree it should be provided to the Commissioner for the purposes of his investigation.
However, I am not aware of any instances where protection logs have been provided. This is not information which departments have access to and of course they are not assembled for the purposes of providing an official record (unlike ministerial diaries). You would be better placed than me to comment on the impact of providing access on overall policy on personal protection, but I would have thought it raised difficult issues. Therefore, my preference would be to rely on the ministerial diary in the first instance and to fall back on the protection logs if at the end of the process, the Commissioner feels further clarification is needed.
25 March 2009
13. Letter to Rt Hon Jacqui Smith MP from the Commissioner, 30 March 2009
Thank you very much for your letter of 26 March responding to mine of 2 March about a number of matters in relation to this complaint.
It was very helpful to have the diary information by financial year, as you had offered, and to have your additional commentary on it. Thank you too for your interpretation of the provision in Section 3.1.1 of the Green Book and the answer to the frequently asked question given in the pre-amble to Section 3.
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I was grateful for the careful thought you, and senior government officials, have given to my request that I should ask the police for access to their logs to confirm your overnight stays. I am mindful both of your own security and that of others who may require police protection. I am grateful too that you have secured agreement to me having access to your ministerial diaries and for your own suggestion that I should have access to these and to your other diaries to go through them with you. I see that both your Permanent Secretary and the senior Cabinet Office official suggest that access to police records should only be used as a last resort.
I think it would be helpful, therefore, if I took up your kind offer to go through your Ministerial and other diaries. I imagine that this could take a little time and I appreciate that given your ministerial and parliamentary duties, you must have very little of that. I would be very happy, therefore, to discuss the logistics of this with anyone you designate with the aim of ensuring that this work can be carried out as quickly and as securely as possible.
If you agree, it might be quickest if you gave me a telephone call so that we can set in train the necessary arrangements. When I have seen your diaries, I will be better able to decide whether it is necessary for me to ask for access to the police records.
I am most grateful to you and to senior officials for your and their assistance on this matter.
30 March 2009
14. Letter to Rt Hon Jacqui Smith MP from the Commissioner, 22 April 2009
Thank you very much for all the help you gave in identifying your overnight stays from your official and personal diaries.
I enclose a summary of the position as we discussed it on the basis of an analysis of these diaries and the information provided by your office on 21 April. As you will see, the figures are very close to the ones which you sent me with your letter of 26 March. You will see also that, as you pointed out in that letter, a comparatively small number of nights spent in Redditch (or in the final year in London) would have a significant effect on the overall figures. You will know also that, because understandably your diaries often did not specifically identify where you spent each night, a significant proportion of the conclusions were based on a reasonable estimate of where you were likely to have spent the night and, for a small number of nights the diaries provided insufficient evidence to make a wholly reliable judgement based on the diaries alone. For 2007–08 and 2008-–09 the number of nights for which there is insufficient diary evidence could affect significantly the overall balance across the year.
In the light of all this, I have considered further whether I need to ask the police to check whether they have any reliable information about your overnight stays during your period as Home Secretary. I recognize and was grateful for the advice which you secured from senior officials about this. I recognize too their preference that police records should be used only as a last resort, and your own view that the most accurate records available are your Ministerial and personal diaries, supported by your recollections.
After careful consideration, I have concluded that it is necessary for me to ask the police whether they can reliably provide such information. While I would not describe this as a last resort, it is, I believe, necessary in view of the comparatively narrow gap between the London and Redditch locations in 2007–08 and 2008–09, the proportion of overnight stays which were necessarily estimated from your diaries and the potential impact the most uncertain nights could have on the overall figures. I have therefore written to the Commissioner to ask for his help on this aspect of my inquiry. I have emphasised to him that I would only want this information if it can be produced with a high degree of assurance as to its accuracy and if it can be produced within a reasonable timescale and at a manageable cost.
I am also writing to your sister as I mentioned when we met. I am showing her the relevant information you gave me in your letter of 24 February and inviting her to confirm it with any evidence she may have to help me.
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I am writing also to the complainant for any additional evidence she may wish to submit, and to the Department of Resources for their advice as to the interpretation of the relevant rules in the light of the analysis of your overnight stays which we have produced and which I am forwarding to them.
I shall let you know when I receive responses to these further inquiries.
22 April 2009
Analysis of overnight locations for Rt Hon Jacqui Smith MP
Difference between Total Total Total Total for London and London Redditch elsewhere year Redditch nights
2005-06 (from 10 May 2005) Original figures 142 130 55 327 12 Revised figures 139 128 58 325 11 2006-07 Original figures 150 133 82 365 17 Revised figures 151 131 83 365 20 2007-08 Original figures 157 147 62 366 10 Revised figures 157 145 64 366 12 2008-09 Original figures 146 155 64 365 -9 Revised figures 145 154 66 365 -9
15. Letter to the Commissioner of the Metropolitan Police Service from the Commissioner, 22 April 2009
I am writing to seek your help in enquiries I am making into a complaint against Rt Hon Jacqui Smith MP in respect of the identification of her London residence as her main home for the purposes of claims she has made against the House of Commons Additional Costs Allowance.
In essence, the complaint I am investigating is that Ms Smith's London residence is not her main home as defined by the rules of the House and that she should not, therefore, have so designated it for the purposes of her claims against the Additional Costs Allowance.
A central feature in defining a Member's main home for the purposes of the rules for the allowance which applied at the time is that a Member's main home, if they have more than one home, will normally be the one where they spend more nights than any other.
I need, therefore, to identify as accurately and reliably as I can the number of nights which Ms Smith has spent at her London residence compared to the number of nights she has spent at her Redditch residence, recognizing that some nights of the year she will have spent at neither residence.
Exceptionally, senior officials have made available to me Ms Smith's official diaries. I have carefully checked with Ms Smith both these and her personal diaries. Together, these have given me a reasonable estimate of the number of nights Ms Smith has spent at each location in recent financial years. But if the police service had
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records which allowed you to identify with confidence the number of nights Ms Smith has spent in her London residence, and the number of nights she has spent in her Redditch residence between 28 June 2007 when she became Home Secretary and 31 March 2008, and also between 1 April 2008 and 31 March 2009, that could be most helpful in establishing the full pattern of Ms Smith's overnight stays during that period. I do not need to know the number of nights spent elsewhere as these are not central to the calculation.
Ms Smith has emphasised to me that accuracy in these matters is of paramount importance to her. These figures would only be of value to me if they could be produced with a high degree of assurance as to their accuracy, and if they could be produced within a reasonable timescale. I would not want to incur a disproportionate use of police resources.
I have consulted Ms Smith to seek her agreement to approaching you for this information. She has consulted senior officials. They have noted that they do not normally even confirm or deny whether individuals receive protection and certainly never reveal any details about the nature of that protection. They note it would be a highly unusual step to reveal any information relating to personal protection. They advise that senior politicians who accept protection as a necessary consequence of the job they do might look at it in a completely different way if in the future they thought that protection could be used to provide personal information to a third party. Senior officials therefore advised that they would much prefer it if police records were used only as a last resort. Ms Smith has said it is for me to judge whether to approach the Metropolitan Police Service and through you the West Mercia Constabulary with this request.
Given the central importance of this issue and against the possibility that the police may have wholly reliable information about Ms Smith's overnight stays, I have concluded that I should put this request to you so that I can, if possible, have as accurate a picture as possible of Ms Smith's overnight stays. I have informed Ms Smith that I am doing so.
I appreciate that some of this information may be held by another police force and, if that is so, I would be grateful if you could liaise with them as necessary.
I enclose a note which sets out the procedure I follow in seeking evidence from witnesses. As you will see, this request is classified personal and confidential and my request and your reply is subject to Parliamentary privilege. It should not be disclosed more widely. I would expect, however, to show your response to Ms Smith, and to include it, with any necessary redactions, in any memorandum I prepare for the House of Commons Committee on Standards and Privileges, who would normally expect to publish it with any report they produce.
I would very much welcome your help on this matter. If you consider that it will not be possible to produce figures to a sufficient degree of accuracy or within a reasonable timescale or at a manageable cost, I would appreciate early notification of this.
22 April 2009
16. Letter to the Commissioner from Assistant Commissioner Janet Williams QPM, 30 April 2009
Thank you for your letter dated 22 April 2009 regarding help you seek for your enquiries relating to Rt. Hon. Jacqui Smith MP and her claims against the House of Commons Additional Costs Allowance in respect of identifying her London residence as her main home.
This request raises some important issues and needs careful consideration. In considering your request I have taken into account Data Protection and Freedom of Information issues as well as the interrelationship between the privacy and security of the person protected. It is further complicated by the fact that the data has been created primarily for an accounting purpose for other reasons and is not in a format to immediately produce the answers you seek.
Before replying we have consulted with West Mercia Police who share our views.
Dealing with these issues in turn, the privacy versus security concerns could cause principals, where risk decrees that they need to be protected, to understandably reconsider their position over concerns of a breach
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of privacy if material were to be released. This could cause significant problems around future protection arrangements.
Regarding Freedom of Information, the MPS regularly receives FOIA requests to reveal details of protection provided to individuals. The MPS and ACPO's position has been to use a neither confirm or deny response with exemptions applied under National Security, Law Enforcement and Health and Safety. I am concerned that supplying the details requested could undermine that position when considering future FOIA requests. Security arrangements are a serious and ongoing concern.
The next issue is Data Protection. I am advised by our legal department that details of the whereabouts/movements/timings of the Home Secretary amount to “Personal Data” within the meaning of the Data Protection Act and that such information should only be released with the express and clear written consent of the subject. Otherwise there is a clear danger of the MPS breaching the Data Protection Act.
Whilst I am keen to provide appropriate assistance, having taken all these issues into account my view is I am not in a position to release the information requested upon the basis of considerations as they pertain at this time. Should the position change I would be content to reconsider that view.
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I trust this letter will be treated in confidence unless you advise me otherwise.
30 April 2009
17. Letter to Assistant Commissioner Janet Williams QPM from the Commissioner, 7 May 2009
Thank you for your recent letter which I received on 30 April in response to mine of 22 April about my request for help in identifying the location of Ms Smith's overnight stays in London and Redditch since her appointment as Home Secretary.
I was grateful to receive your advice. In the light of what you say, I will need to consider whether my request is so central to my inquiry that I must refer this matter to the Committee on Standards and Privileges for it to consider whether to exercise its power to ask you for your papers and records in relation to this matter. But, before, considering this further, it would be very helpful if you could give me some further guidance on what you say in the penultimate paragraph of your letter. You refer there to not being able to release the information I have requested on the basis of considerations at this time, but should the position change, you would be content to reconsider that view. Could you let me know what changed conditions you consider would be necessary in order for you to reconsider your view? Could you also let me know what reassurances from me might help to meet your security/privacy concerns, given that I am asking only for annualized returns and assuming that the appropriate level of consent is provided by the data subject.
You asked about the confidentiality of our correspondence. I dealt with this point in the penultimate paragraph of my letter to the Commissioner of 22 April. In effect, our correspondence is in confidence at this stage. I may need to report to the Committee if I were to decide that I needed them to consider whether to call upon you for papers and information, otherwise, I would, as I explained in my previous letter, expect to show our correspondence to the Rt Hon Jacqui Smith MP and to include it, with any suitable redactions, in the evidence I would submit to the Committee on Standards and Privileges in any memorandum I prepared for that Committee, which the Committee would expect to publish with its report. It is open to you to ask me not to submit all the evidence to the Committee and to ask the Committee not to publish the evidence I show them.
I look forward to hearing from you. If you would like to discuss this further, please let me know.
7 May 2009
18. Letter to the Commissioner from Assistant Commissioner Janet Williams, QPM, received 4 June 2009
Thank you for your letter dated 7th May 2009.
I think that I made clear our position in my letter of 30th April 2009 that the main concern that we have relates to Data Protection. I have considered the contents of your letter and I believe that it is a matter between you and the Home Secretary as to whether she relinquishes her right to privacy and whether you seek her express consent for the MPS to release the data you have requested.
Again, before replying we have consulted with West Mercia police who share our views.
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Data supplied in a summarised format would not compromise our current position on the security of protected persons.
Received 4 June 2009
19. Letter to Rt Hon Jacqui Smith MP from the Commissioner, 8 June 2009
This letter is to ask you for your agreement to the police providing me with summarised information about your London and Redditch homes on the basis of police records and to let you have a copy of the evidence I sought and received from one of your neighbours.
As you will know from my letter to you of 22 April, I decided that it was necessary for me to ask the police for information they might hold which would help identify your overnight stays in London and in Redditch. I attach a copy of my letter to the Commissioner of Police of 22 April; a copy of the Assistant Commissioner's reply which I received on 30 April; my letter to the Assistant Commissioner of 7 May; and her response which I received on 4 June.
As you will see, the Metropolitan Police Service have concluded that data supplied in a summarised format would not compromise their current position on the security of protected persons. They suggest that it is for me to decide whether to seek your express content for the Metropolitan Police Service to release the data which I have requested—which, as you know, would be in a summarised format.
For the reasons set out in my letter of 22 April to the Commissioner, I consider that it would be helpful to my inquiry if I did have the information I had sought from the Metropolitan Police Service, and, through them, from the West Mercia Constabulary. I would therefore ask that you consider giving me your express consent to the Metropolitan Police Service and the West Mercia Constabulary releasing to me the information they hold relating to your overnight stays in London and Redditch which I have sought. If you agree to the police releasing such information to assist me with this inquiry, it would be very helpful if you could write to me giving your consent to the Metropolitan Police Service and the West Mercia Constabulary releasing to me for the purpose of my inquiry data in a summarised format held by the Metropolitan Police Service and the West Mercia Constabulary in relation to your overnight stays in London and Redditch between 28 June 2007, when you became Home Secretary, and 31 March 2009.
When I wrote to you on 21 May I noted that I was awaiting a response from the neighbour whom your sister suggested I ask about your overnight stays in London. I attach a copy of that neighbour's letter of 30 May.
I look forward to hearing from you as soon as convenient about the police data issue.
8 June 2009
20. Letter to the Commissioner from Rt Hon Jacqui Smith MP, 15 June 2009
Thank you for your letter of 8 June 2009 in which you ask for my permission for the Metropolitan Police, and through them, West Mercia Police to release data in 'a summarised format' relating to my overnight stays in London and in Redditch.
As you are aware, there are broader issues of policy in approaching the police for information relating to the protection of an individual as spelt out in the letters from Sir David Normington and [the Director of the Propriety and Ethics Team] of the Cabinet Office that I enclosed with my letter of 26 March.
However, I have never opposed your seeking this information with respect to my specific circumstances.
The only stipulation I made was that this information should be as accurate as that provided from other sources. You have been scrupulous in your consideration of my Ministerial and personal diaries. We have, of course, spent a significant period of time going through night by night my whereabouts using these diaries. I
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have provided extra photographic and other evidence to support my recollection in some cases. The letter from my immediate neighbour supports the conclusions of this analysis.
The summarised information that you have produced for the number of nights spent in Redditch or London that accompanied your letter of 22 April was the result of this night by night analysis.
I am, therefore, content for you to receive the information that you have requested from the Metropolitan Police and West Mercia on the condition that they can supply me with the night by night analysis that forms the basis of the summary. I am writing to the Commissioner and the Chief Constable to make this request.
15 June 2009
21. Letter to Rt Hon Jacqui Smith MP from the Commissioner, 18 June 2009
Thank you for your letter of 15 June about the Metropolitan and West Mercia Police releasing to me data about your overnight stays in London and Redditch.
I was most grateful to receive this. I am now writing to the Metropolitan Police to show them your letter and to ask them and through them the West Mercia Police, to release this data. I have asked them to provide the data as soon as possible and to identify in their response any points they may have about the accuracy of the summaries they are providing. I will be back in touch as soon as I have received this data and subject to what it shows, would hope then to proceed to an interview with you and to the conclusion of this inquiry.
Thank you again for all your help with this
18 June 2009
22. Letter to Assistant Commissioner Janet Williams, QPM, from the Commissioner, 18 June 2009
Thank you for your letter which I received on 4 June about my request for summarised data held by the Metropolitan Police and the West Mercia Constabulary in respect of the overnight stays by the Rt Hon Jacqui Smith MP in her London and Redditch residences from 28 June 2007 to 31 March 2009.
I set out the reasons for this request in my letter to the Commissioner of the Police of the Metropolis of 22 April. I received your initial response on 30 April and wrote to you again about this on 7 May. Your letter which I received on 4 June makes it clear that, while data supplied in a summarised format would not compromise your current position on the security of protected persons, you believed it was a matter between me and Ms Smith as to whether she relinquished her right to privacy and whether to seek her express consent for the Metropolitan Police Service (and West Mercia Police) to release the data I had requested.
I decided that I should seek Ms Smith’s express consent to the Metropolitan Police Service and West Mercia Police releasing to me this data. Ms Jacqui Smith has now given her consent to that release. I attach a copy of her letter to me of 15 June. You will see that Ms Smith would like the night by night analysis that forms the basis of your summary and that she is writing to the Commissioner and to the Chief Constable to request this information. I hope this will not cause you any difficulty.
In the light of Ms Jacqui Smith’s express consent, I would be grateful if you could provide me with the summarized information which I requested in my letter to you of 20 May. I know Ms Smith would be grateful—as would I—if it were possible to produce this information as soon as possible and ideally within the next two weeks. If there is any difficulty about this, please let me know. Could you also let me know when you let me have the information whether there any points you would wish to make about the accuracy of the summaries you have produced.
I would be most grateful for your help on this matter.
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18 June 2009
23. Letter to the Commissioner from Assistant Commissioner Janet Williams, QPM, 3 July 2009
Thank you for your letter dated 18th June 2009. I can confirm that this letter represents the position of both the Metropolitan Police Service (MPS) and West Mercia Constabulary (WMC).
I have also received a letter dated 15 June 2009 from Jacqui Smith MP where she has provided her written consent to the provision of this data to you, albeit this consent being conditional on the 'night by night analysis' that forms the basis of the summary being supplied to her.
Although the primary reason for the data being collected is for accounting purposes, I am able, on the basis of this consent, to supply you with the data that you have requested.
In providing the answers to your request contained within your letter dated 22 April, my officers and West Mercia officers have collated data [for] the Member’s London and Redditch residences. This data has then been checked for consistency with [another data source]. The data has been collated by the respective departments and then checked by independent officers.
…
[The residence data] is consistent with the [other source] on all but two occasions. That is to say that the data consistently supports the breakdown of the number of nights, but that on two occasions only, the data is unclear.
Dates Nights guarded at London Nights guarded at Redditch 28 June 2007 to 31 March 101 (or 102) 128 2008 1 April 2008 to 31 March 2009 137 173 (or 174) Total (28 June 2007 to 31 238 (or 239) 301 (or 302) March 2009)
[Those occasions were] 13 February 2008 [and] 7 January 2009.
…
3 July 2009
24. Letter to Rt Hon Jacqui Smith MP from the Commissioner, 7 July 2009
I have now heard back from the Metropolitan Police with the outcome of their analysis of your overnight stays in your London and Redditch residences from 28 June 2007 to 31 March 2009.
As you know, I wrote to them with this request on 18 June, following your letter of 15 June. The Metropolitan Police responded in their letter of 3 July. I enclose copies of both letters. I enclose also a summary of the information we have collected about your overnight stays, reflecting the estimates we made from your diaries, and the information provided by the police, distributing one of the uncertain nights to London and the other to the constituency.
As you will see, there is a significant difference in the balance of your overnight stays between your diary estimates and the police information, based on an analysis of their records as described in their letter to me of 3 July.
The Metropolitan Police have provided to you, but not to me, a night-by-night analysis on which these total figures are based. You will, therefore, be able to see how far differences between the police record and the
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diary estimates relate to nights where we recognised that the diary evidence was not conclusive and that a judgement needed to be made.
I would welcome your views on whether you would accept the police analysis. While the precise numbers are unlikely to be conclusive, the wider gap in the balance between your stays in London and in your constituency over the last two years may have some significance and may be something which we might explore in the interview which I propose, once this matter is out of the way, we now hold before I conclude this inquiry.
Could you, therefore, let me know whether you accept the police analysis, or would wish to challenge it and, if so, on what basis? A response in the next two weeks would be most welcome. If you would like a word about this, do please get in touch.
Analysis of where Rt Hon Jacqui Smith MP spent her nights
Total Total Total Total Difference London Redditch elsewhere for between London year and Redditch nights
2005-06
Number of nights 139 128 58 325 11
2006-07
Number of nights 151 131 83 365 20
2007-08
Number of nights (up to and 43 29 16 88 14 including 27 June)
Number of nights (from 28 114 116 48 278 -2 June)
Police analysis (from 28 June) 102 128 -26
2008-09
Number of nights 145 154 66 365 -9
Police analysis 137 174 -37
Note: Agreed figures for 2007-08 have been broken down into those relating to the period up to and including 27 June, and those for the period beginning 28 June. This is to aid comparison with the police figures, which relate only to the latter period.
7 July 2009
25. Letter to the Commissioner from Rt Hon Jacqui Smith MP, 14 July 2009
Thank you for your letter of 7 July enclosing a letter from the Metropolitan Police and your table of analysis of my overnight stays in London and Redditch.
I have today received the night by night analysis from the Metropolitan Police that I asked for as a condition of their providing you with summarised information. For your information, this is in the form of a
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spreadsheet which simply notes whether the night was covered (in their view) in Redditch or in London. They have also enclosed a summary of […] for each day.
I have not seen the records that have led to these conclusions although I do note that AC Janet Williams has stated that these records were collected for accounting purposes. I presume she means financial accounting rather than accounting for my whereabouts!
However I have now gone through again day by day, my personal and Ministerial diaries to check any discrepancies with the Metropolitan Police summary. I have recorded my view of these discrepancies in the following table:
[…]
I still believe that my original estimates using both ministerial and personal diaries that we went through together are likely to be the most accurate record and are the basis on which I would have made judgements about which was my main home. However, I note below my understanding of what the above (if accepted) would mean for the police summary and your summary:
[…]
I hope that this is helpful. […]
26. Letter to Rt Hon Jacqui Smith MP from the Commissioner, 21 July 2009
Thank you very much for your letter of 14 July with your response to the analysis of the Metropolitan Police Service which I sent you on 7 July.
If you agree, I suggest the objective is to produce the best estimate we can of the pattern of your overnight stays. But they are no more than best estimates, based on all the evidence we have been able to produce. I agree that it is reasonable to check the police analysis, which, as you say, was produced for a different purpose, against your Ministerial and private diaries. Equally, where those diaries are not able (entirely understandably) to produce evidence which clearly points to the location of you overnight stay, then I suggest that the police analysis should be given weight.
I have carefully gone over the analysis in your letter on that basis. I propose to accept your analysis where the comments you have made substantiate the amendment to the location which you propose. Where, however, you have not been able to provide evidence, I think it would be right to accept the police analysis. And there are two dates when no amendment is needed since we have made it already. These are 13 February 2008 and 7 January 2009. You will see from their letter of 3 July that the police were unable to supply firm information for these dates. I had, therefore, already classed 13 February 2008 as a London night and 7 January 2009 as a constituency night.
On that basis, I attach a revised schedule which I hope we can accept as the best estimate of your pattern of overnight stays in each of the years in question. The result is that my figures show a difference between London and your constituency of three more nights than your figures suggest for 2007–08 and four nights more for 2008–09. But, taking account of your final table, which differs a little from your chart, the conclusions are the same as you have suggested—for 2007–08, 13 more nights in your constituency than in London for the period beginning 28 June 2007, but one more night in London than in the constituency for the whole year. And for 2008-09, 18 more nights in the constituency than in London.
For the reasons I have set out in this letter, I hope that we can agree to this analysis as the best estimate we can make of the pattern of your overnight stays over the relevant years. I would be grateful if you could confirm your agreement—and, of course, let me have any further comments you may wish to make.
I am grateful that you have agreed to a meeting for an interview at 3 pm on Tuesday 1 September. Subject to that interview, I would hope that will conclude my inquiry. I would write to you during August to let you have in advance the areas which I suggest we need to discuss.
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As you know, I have been considering whether I should submit a memorandum to the Committee on Standards and Privileges following my inquiries into this complaint. I have decided that I should do so. You should draw no inferences from this decision. I have decided also that I should cover in that memorandum the separate complaint about the claims you made for your media package. I would propose to ask you about that at the same interview and, again, would give you notice of the areas I suggest we cover.
I am grateful for your help with this complaint and hope that we can now move to concluding the work on it. I look forward to hearing from you.
Analysis of where Rt Hon Jacqui Smith MP spent her nights
Total Total Redditch Total Total for Difference London elsewhere year between London and Redditch nights
1. 2005-06 (from 11 May)
Number of nights (diary estimate) 139 128 58 325 11
2. 2006-07
Number of nights (diary 151 131 83 365 20 estimate)
3. 2007-08
a. Number of nights 43 29 16 88 14 (from diary estimate) (up to and including 27 June)
b. Number of nights 114 116 48 278 -2 (from diary estimate) (from 28 June)
c. Total nights from diary 157 145 64 366 12 estimate (a+b)
d. Police analysis for 102 128 -26 nights from 28 June
e. Member’s figures 111 121 -10 (corrected) for nights from 28 June
f. Proposed figures for 109 122 -13 nights from 28 June
g. Proposed revised total 152 151 63 366 1 (a+f)
4. 2008-09
a. Number of nights 145 154 66 365 -9 (diary estimate)
b. Police analysis 137 174 54 365 -37
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c. Member’s figures 144 158 63 365 -14 (corrected)
d. Proposed figures 143 161 61 365 -18
Note 1: The table shows police figures of 102 nights in London in 2007-08, and 174 in the constituency in 2008-9
Note 2: Agreed figures for 2007-08 have been broken down into those relating to the period up to and including 27 June, and those for the period beginning 28 June. This is to aid comparison with the police figures, which relate only to the latter period.
21 July 2009
27. Letter to the Commissioner from Rt Hon Jacqui Smith MP, 24 July 2009
Thank you for your letter of 21 July following mine of the 14 July with my comments on the police summary of my overnight stays.
The various exercises that we have now completed have identified the difficulty of arriving at a fully accurate record of where I spent every night over the last four years. However I accept your recommendation that we should now agree on a best estimate and I am willing to accept your table as that estimate.
I look forward to receiving your further letter covering the areas for discussion at our interview and to meeting you on 1 September
24 July 2009
28. Letter to Mrs Jessica Taplin from the Commissioner, 22 April 2009 I am writing to you in confidence to ask whether you have any further or fuller evidence you would wish me to consider in respect of your complaint against the Rt Hon Jacqui Smith MP about the identification of her main home for the purposes of her claims against Parliamentary allowances.
Since I am, as you know, undertaking an inquiry into this matter, this letter and your response is subject to parliamentary privilege. I would be very grateful therefore if you would not disclose this letter or your reply or the fact or contents of our communication to any other person. I would expect both letters, however, to be included among the evidence attached to any memorandum I prepare on your complaint to the Committee on Standards and Privileges and, if I do submit such a memorandum, this exchange would be likely to form part of the evidence published by the Committee with any report it produces. I am likely also to show our correspondence to Ms Smith during the course of this inquiry.
I have been examining carefully documentary evidence to establish the nights which Ms Smith has spent at the London residence, at the residence in Redditch, and elsewhere. The purpose has been to establish whether in each of the past few years Ms Smith has spend more nights in London than in any other location. The time spent away from either residence, for holiday, business, or any other purpose does, of course, affect the overall arithmetic.
It would be very helpful to know whether on reflection, you have any further evidence in addition to that set out in your letters to me of 16 February which you would like me to consider. In particular, it would be helpful to know whether you have any further evidence to suggest that Ms Smith did not spend some Thursday nights at her London residence up to March 2009; and any further evidence you have to suggest that she did not spend some nights in her London residence during the summer and over the Christmas and New Year of 2008/2009, including Christmas day.
Jacqui Smith 78
It may be that you have no further information to that which is included in your earlier letter. In that case I would quite understand. But I hope you will forgive me for checking the position again with you at this stage in my inquiry.
I enclose a note setting out the procedure I follow for receiving evidence from witnesses. If you could let me have a reply to this letter within the next three weeks, I would be most grateful. Thank you for your help on this matter.
22 April 2009
29. Letter to the Commissioner from Mrs Jessica Taplin, 6 May 2009 I am writing following your recent letter regarding further or fuller evidence regarding my complaint against Rt Hon J Smith MP.
On the assumption that the presence of Ms Smith at [… Road] coincides with the police presence on the road, whether that is by police in cars or positioned as is more normally the case outside her sister's house, I have noted the following.
I have no written diary or log of the police presence but would attest to the fact that the normal police presence is from Monday mid morning to Thursday mid morning and only when Parliament is sitting. This has increased since your inquiry began and indeed the police are now there more frequently sometimes appearing on Sunday night and sometimes being there till Friday rather than Thursday morning.
With regards to your specific reference to evidence suggesting that Ms Smith did not spend some of her nights at her sister's house on [… Road] during the summer and over Christmas and New Year, I can only say that during the summer recess there is no regular police presence on [… Road]. At Christmas my husband and I were [away] for the latter part of December only returning on the 3rd of January. From memory there was no police presence for a good week or two after our return, only resuming when Parliament was sitting.
I have never actually seen Ms Smith on or around [… Road].
I hope this helps, but surely the police activity log provides evidence of where Ms Smith actually spends the night?
6 May 2009
30. Letter to Ms Sara Smith from the Commissioner, 22 April 2009 I would welcome your help with a complaint I have received against your sister, Rt Hon Jacqui Smith MP, in respect of the identification of the house she shares with you as her main home for the purposes of her claims against the House of Commons Additional Costs Allowance.
I would be very grateful if you could describe for me the arrangements you have with Ms Smith for her accommodation in London. In a letter to me, Ms Smith has written as follows:
“I… wanted my London home to be more than simply a bolt hole, I wanted it to be a real family home and I have a close relationship with my sister.”
…
“I can state that over the 2008 Summer recess and the 2008 Christmas holiday period I spent a significant proportion of my time at my London home.”
…
“In April 2008, I moved in London to [… Road] where I currently live with my sister and her partner. This is a three bedroom house which was bought for £450,000. My sister has a mortgage on the house. I am a guarantor of the mortgage. There have been various newspaper descriptions of my living
Jacqui Smith 79
arrangements in this house – most of which are wholly inaccurate. I do not ‘rent a room’, I share the house. I pay rent of £700 a month on which my sister pays tax. In addition, I contribute to other bills such as utilities and cleaning. I buy the TV licence. We eat together and I contribute about £150 a month towards food. I have bought fixtures, fittings and furniture throughout the house. I recently paid £1000 as a share of having a new boiler. I have entertained friends and other family members there. In particular, we chose to have a third bedroom partly so that my children can have a room to sleep in when they come up in school holidays and for weekends. We provide emotional support to each other when photographers are camped outside!”
I would be very grateful if you could confirm for me your sister’s description of the way she shared the accommodation.
The evidence your sister has given me from her diaries suggests that in most weeks, including in the parliamentary recess, she has overnighted at your shared address from Monday to Wednesday inclusive, with some Thursday nights and a few part weekends. I would be grateful if you could confirm this with any evidence you may have to support this.
It would be helpful too if you could confirm that Ms Smith and her family spent the nights of 24–26 December inclusive, and 31 December 2008, at your shared address again with any evidence you may have to support this.
Any other points you would wish to add explaining how the arrangements work and the use your sister has of the accommodation would be most helpful.
I enclose a note which sets out the procedure I follow in inviting evidence from witnesses. You will see that this letter is marked private and confidential and remains subject to Parliamentary privilege, as does your reply, which should not be disclosed more widely. If I decide to prepare a memorandum for the Committee on Standards and Privileges on this matter it would be likely to form part of the evidence I attach to that memorandum and it is likely to be published by the Committee alongside its report. I am also likely to show your response to Ms Smith during the course of this inquiry.
Jacqui Smith 80
If you were able to let me have a response within the next three weeks, I would be particularly grateful. Thank you for your help.
22 April 2009
31. Letter to the Commissioner from Ms Sara Smith, 30 April 2009 Thank you for your letter. I see that you require the words of the Home Secretary to be corroborated and I am happy to do that for you.
My sister and I share a house, as we have done for many of the years during which she has been a Member of Parliament.
I can, as you request, confirm her description of the way we share the accommodation.
I can also confirm that she spends three, four, five or more nights a week here, depending on where her duties as a Minister and constituency MP take her. But no, I'm not sure that I can provide evidence for this, further than my word.
As for the Christmas period, I didn't think I would be able to offer more conclusive proof than the picture I understand she has submitted to you of the two of us and a huge turkey in our kitchen... but I can!
My [related individual] is a professional photographer and he spent Christmas with us. He gave me a long and complicated explanation of how the digital pictures he took, including one of Jacqui and her son in front of a Christmas tree, can be proven to have been taken at the time indicated on the computer file and not doctored (ie: he hasn't photoshopped in the Norwegian spruce) but I'll spare you that and just include the picture. Let me know if you would like more details.
The picture of us on the terrace of the House of Commons on New Year's Eve I can't improve on, I'm afraid... although I understand through my experience of court reporting that mobile telephone records can show the location of particular phones at particular times. Also, the security guard on duty that night might well remember having seen us.
Our next door neighbour would also be happy to confirm that Jacqui was here in […] at those times.
I see in her letter to you that Mrs Taplin insists that she and her husband understand exactly what the arrangements are for policing our home—although I would be surprised to hear that the Met has made that known to them. She also makes it clear that each and every night she or Mr Taplin—perhaps even both of them—check the outside of our home for proof of Jacqui's presence. That is quite a commitment as they live five doors—around thirty metres—away on the same side of the road and behind a fir tree.
Despite their best efforts and I assume late night trips up to our home to investigate who's in and who isn't, they have clearly got themselves confused.
The idea that weeks and months have gone by when Jacqui has been away from London—and away from our home here—is not true. The police may have disappeared for the two week holiday that we all took last August but the complainant's "clear and simple indicator" for when my sister "is in residence" has obviously let her down.
I see from the date on Mrs Taplin's letter that she only chose to write to you after contacting the Conservative Party for advice and after her extensive interview about us appeared in that great organ of truth and social justice, the Mail on Sunday.
As a journalist I have been amazed to see her story, unchecked, repeated so many times since you announced you would be carrying out the investigation.
Mrs Taplin describes the whole situation as being "based on untruths". I hope you will understand the damage that these words, not backed up by facts themselves, have caused,
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These false allegations have had a direct impact on me. In the two and a half months this inquiry has already taken, three newspapers have attempted to run stories about my own finances, suggesting I don't pay income tax on money I receive from my sister. I do, although my accountant reckons I'm about the only person in Britain who does.
None of these papers have come to check this story with me. In fact only today the Evening Standard was due to run it. It's only because their photographer was taking pictures of our home late last night that we found out about their plans and were able to let them know that whoever is hawking this story around—with no doubt increasing desperation—is making it up.
Our … neighbour has said she would like the matter of Jacqui's primary residence to be fully investigated by you. I wonder if by giving (not selling, surely) her "facts" to a newspaper first, she may have encouraged a few people to have made up their minds about this matter already?
I hope this information helps.
30 April 2009
32. Letter to Mr David Gordon from the Commissioner, 14 May 2009 I would welcome your help with a complaint I have received about the identification by Rt Hon Jacqui Smith MP of [… Road] as her main home for the purposes of the claims from parliamentary allowances which she makes for her constituency home.
This letter is marked private and confidential. The information I request and receive during the course of my enquiries is subject to parliamentary privilege. I would be very grateful, therefore, if you would not disclose the contents of this letter or the contents of your reply to anyone else. I am likely to show your reply to the Rt Hon Jacqui Smith MP during the course of my inquiry and your response would be likely to be included as evidence in any memorandum I prepare for the House of Commons Committee on Standards and Privileges who would expect subsequently to publish it along with their report. Until that time, however, our exchanges are confidential.
The reason I am writing to you is because Ms Sara Smith has suggested that you would be happy to confirm that Ms Jacqui Smith MP was at her London address over Christmas and New Year 2008/09. I hope you may also be able to help me on the overall frequency of Ms Jacqui Smith’s overnight stays at the same house.
In respect of Christmas/New Year 2008/09, Ms Jacqui Smith has said that she and her family spent the nights of 24-26 December inclusive and 31 December 2008 at the London house, [… Road]. I would be very grateful to know whether you can confirm this and if so, how you are able to do so.
Ms Jacqui Smith has also given me evidence which suggests that in most weeks, including in the parliamentary recess, she has stayed overnight at the same address from Monday to Wednesday inclusive, with some Thursday nights and a few part weekends. I would be very grateful to know whether you are able to comment on or confirm this. In particular it would be helpful to know if you can confirm Ms Smith’s presence overnight at the London house during the parliamentary recesses, and more specifically, last summer. Again, it would be most helpful to know the basis on which you are able to provide such confirmation, if you can indeed do so.
I enclose a note which sets out the procedure I follow in inviting evidence from witnesses which I hope you may find helpful.
I would be most grateful for any assistance you can give me on the matters raised in this letter. It would be particularly helpful if I could have a response within the next three weeks.
Jacqui Smith 82
14 May 2009
33. Letter to the Commissioner from Mr David Gordon, 30 May 2009 Thank you for your letter dated 14 May 2009 requesting my help with your inquiries into this matter, and I welcome the opportunity to do so. The use and meaning of the term 'Private and Confidential' has been noted, and will be given due respect. I shall attempt to respond to your queries in the order in which you raise them.
I can indeed confirm the presence of Ms Jacqui Smith at the London house [… Road] over both the Christmas and New Year periods, 2008/09. I witnessed a number of family members present at that address for several days during that time, and Ms Jacqui Smith was one of that company.
I was present at my own address, [... Road], from 24–26 December inclusive, and on New Years Eve, 31 December 2008. This house shares a party boundary with Ms Smith's London property... In the course of normal movements I had occasion to have sight of Ms Jacqui Smith at the London house during these periods.
In addition, the presence of Ms Jacqui Smith at [… Road] is normally indicated by the presence of two police protection officers on duty to the front of the property both whilst she is staying there, and when her arrival is imminent. These officers were on duty during the Christmas and New Year periods.
In regard to Ms Smith's presence generally at the same address, you will understand that I do not keep a record of events, dates or days of the week. Bearing in mind the fact that Ms Jacqui Smith MP is a representative of a parliamentary constituency as well as holding a post as a senior cabinet minister, I would understand and expect that she has a need to balance these duties and commitments with some skill.
In this context it is my firm impression that, on balance, Ms Jacqui Smith is present at [… Road] at least 60% of the time. It is more usual that she is there a significant part of the working week, during weekdays/nights, although I have noted occasional periods of extended presence, lasting a full week or even, on occasion, consecutive weeks. There have been several weekends when I have been aware of her presence at the house, although this is less usual. I have no impression that there is any significant change of pattern during periods of parliamentary recess.
In support of these assertions, and because of residing next door, I have noted visually Ms Smith's arrival or departure in an official escorted car, either late at night or early mornings on a regular basis. Additionally, I have observed clearly the presence of her police protection to the front of the house, indicating when she is staying at the same London address, and have had occasional casual sight of her at the property.
As regards the summer of 2008, I can vouch for a regular attendance of police protection to the front of [… Road], indicating Ms Jacqui Smith's presence at the house. Occasionally there would be no indication of Ms Smith's presence at the house for approximately a week; however, my observation and impression supports the view that she was present there more often than not.
In summary, therefore, my own observation and impression would support Ms Jacqui Smith's account, which you indicate in your letter, of her presence at [… Road]; specifically during Christmas 2008, New Year 2008/09, and periods of parliamentary recess, and also generally from week to week.
I hope I have addressed adequately the issues you raise in your letter. If you require further information, I should be happy to help in as much as I am able.
34. Letter to the Director of Operations, Department of Resources from the Commissioner, 22 April 2009
I would welcome your advice on a complaint I have received against Rt Hon Jacqui Smith MP about the identification of her London residence as her main home for the purposes of her claims against the Additional Costs Allowances.
Jacqui Smith 83
I enclose a copy of the complainant’s two letters of 16 February; a copy of my letter of 17 February to Ms Smith; a copy of her response to me of 24 February with its attachments; a copy of my letter to her of 2 March and of her response of 26 March with its attachments.
I have since checked with Ms Smith her ministerial and personal diaries for financial years 2005-06 (starting in May 2005) to 2008-09. I attach a table showing what I believe to be a reasonable statement of where Ms Smith was overnight through each of those years. I am seeking further confirmation of these figures and would let you know if they were to change in any significant way.
I would welcome your help on the interpretation of Section 3 of the Green Book for the relevant years, in particular:
1. how your Department interprets paragraph 3.1.1 of the Green Book read with the first frequently asked question—“what can I claim?” In particular, does it enable the cost of accommodating a Member’s family in the second home, and if so, why?
2. Whether, given the nature of the accommodation for Ms Smith in London and in her constituency, you consider that Ms Smith has more than one home within the terms set out in the Green Book;
3. whether you consider it was open to Ms Smith to identify her constituency home as her main home even though she spent more nights than any other in London given that this part of the rule appears to provide for exceptions.
I would also welcome your comments on the exchange of letters between Ms Smith and the Fees Office in June and July 2007, which she attached with her letter to me of 24 February, including any information you may have from your records about the conversations which Ms Smith reports in her letter of 19 June 2007 that the Fees Office had with her husband.
Any other comments or points you may wish to make which you consider would help me with my inquiry would be most welcome.
It would be particularly helpful if I could have a response to this letter within the next three weeks. Thank you for your help.
22 April 2009
35. Letter to the Commissioner from the Director of Operations, Department of Resources, House of Commons, 15 May 2009
Thank your for your letter of 22 April 2009 in which you ask for my advice on a number of issues relating to the complaint against the Rt Hon Jacqui Smith MP.
First, you asked for my help in interpreting paragraph 3.1.1. of the 2006 Green Book in particular, how the Department interpreted the first frequently asked question, “what can I claim?,” and whether it extends to costs attributable to family members and if so why?
Whilst the Green Book says in paragraph 3.14.1 that living costs for anyone other than the Member are not allowable, this needs to be construed against a general premise elsewhere in the Green Book that support is available to Members, in part, to facilitate family life in both London and in Members’ constituencies. For example, the travel allowance provides for journeys for spouses and children between London and the constituency or main home. Similarly, one can infer from paragraph 3.7.2 (‘if you take out a joint mortgage with someone who is not your spouse..) that the ACA home (i.e. the additional home) is one in which a spouse could have an interest.
In the day-to-day administration of the ACA the Department has adopted a pragmatic approach such that, for example, utility bills are generally paid in full and not apportioned in respect of a spouse/partner in residence. White goods can be purchased in full from the allowance without a contribution even though other family members may use them; but we draw a line such that furniture for, say, children is not an eligible expense. Thus our general approach is that costs exclusively or disproportionately for family members are not
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allowable. So, I am satisfied that the cost of Ms Smith accommodating her family in her second home was acceptable under the rules.
Secondly, you ask whether, given the nature of the accommodation for Ms Smith in London and in her constituency, the Department considers that Ms Smith has more than one home within the terms set out in the Green Book. As you might expect, different Members have different overnight arrangements. I have no reason to doubt that [… Road] is Ms Smith’s residence whilst in London. According to her letter of 24 February she pays rent, contributes to running costs and buys fixtures, fittings and furniture. Bearing in mind the demands of being a Member of Parliament, I can only conclude that [… Road] is indeed a home in the terms set out in the Green Book. The Department is of course not privy to this information and cannot verify any financial transactions because they are not in themselves a subject of a claim against Parliamentary allowances.
Thirdly, you asked me to consider whether I believe it was open to Ms Smith to identify her constituency home as her main home even though she spent more nights than any other in London given that this part of the rules appears to provide for exceptions. The simple answer to this is that it was indeed open to Ms Smith to nominate her constituency home as her main home if the overall facts justified it. Paragraph 3.11.1 of the Green Book is clear that the presumption is that a main home is where a Member spends more nights than any other. However, it is qualified by the addition of the word ‘normally’ and Members are invited to consult the Department if in doubt.
At the time of the complaint our records showed Ms Smith’s main home as [another address in] London. We received a backdated nomination form for [… Road] in March 2009.
Advice on the main home nomination was offered by the Department on at least two relatively recent occasions when sought by Ms Smith. You already have [the Head of Validations, Enquiry and Advice Team’s] letter of 11 July 2007 in reply to Ms Smith’s of 19 June. This does, I consider, set out the position fairly. The main home is not always where a Member’s family resides because this can be ‘trumped’ by the prime condition in the Green Book, which is where one spends most nights. However, my office would always advise that where a Member’s family lives is a relevant consideration. Such a fact is not of no consequence.
[This official’s] letter followed telephone advice that Ms Smith’s husband received from [another official] a member of [the first official’s] staff, on 18 June 2007. I attach our electronic record of this.
15 May 2009
36. Note of telephone advice given to Ms Smith’s husband by the Department of Resources, 18 June 2007
MP/Supplier: MS JACQUI SMITH MP
Allowance: ACA
Query: Can you clarify the rule about family member benefiting from ACA payments please?
Advice: Told her that she could not claim any form of rent or mortgage payment to a family member for renting said property.
Date: 18/06/2007 10:07:37 Closed: 18/06/2007 10:07:37
18 June 2007
37. Letter to the Commissioner from Ben Wallace MP, Member for Lancaster and Wyre, 7 May 2009
Further to your investigation into the second homes allowance claimed by the Rt Hon Jacqui Smith MP I ask that you take into account the findings of the attached Freedom of Information requests.
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You will see that Redditch Borough Council have provided details of the Council Tax paid in respect of Ms Smith's constituency address. The Council confirm that full Council Tax has been paid in respect of the property and that no claim was made for either a second home discount or a single person discount.
I am sure you are familiar with the legislation surrounding reductions in Council Tax but for clarity I shall detail the arrangements operated by Redditch Borough Council. The Council offers a reduction in Council Tax Liability of 25% if there is only one adult living in the property as their main home and a discount of 50% if no one lives there.
Given that the Home Secretary has claimed the Additional Costs Allowance on the basis that her main home is meant to be London I believe this latest revelation is worthy of further consideration by your Office.
2. Response to Freedom of Information request
Thank you for your request for information below. The answers to your questions are:
Request # 1
The Home Secretary, Jacqui Smith, has not benefited from a “second home” council tax discount at [… Road]. The charge has been calculated on the basis of there being two adult residents in the property.
Request # 2
The Register of Electors is held by the Electoral Registration Officer (ERO) who is not a designated public authority for the purposes of the Freedom of Information Act 2000. However, in response to your question:
(a) Jacqui Smith is registered on the RoE and her registration details are freely available on the public version of the Register (she has not opted out) in relation to her address in [the constituency]. (N.B. The ERO would not normally reveal the address to any enquirer; but would only confirm the registration at a given address, as in this instance.)
(b) The ERO does not collect this information as it is not required for electoral purposes.
(c) This is not something the ERO makes available or currently holds (as electors can now re-register by phone or e-mail).
Request # 3
Details for 1997/98 to 2003/04 have not been provided as these years pre-date Jacqui Smith’s liability at this address.
The amount of council tax paid in respect of this property since 28 May 2004 to date is:
28 May 2004 to 31 March 2005 £1,225.80
1 April 2005 to 31 March 2006 £1,508.47
1 April 2005 to 31 March 2007 £1,578.82
1 April 2005 to 31 March 2008 £1,655.20
1 April 2005 to 31 March 2009 £1,727.86
1 April 2005 to 31 March 2010 £1,788.10
Request # 4
Payments have been made by the residents of the property, not a third party.
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Request #5
The council tax band that [… Road] was placed in by the Valuation Office Agency was Band E.
7 May 2009
38. Letter to the Commissioner from Mr Robert Waterhouse, 30 March 2009
Thank you for the acknowledgement which [the Registrar of Members’ Financial Interests] sent me on 26 February regarding the expenses of the Rt Hon Jacqui Smith MP.
I am sure you will have seen the latest news in the media concerning her expenses, this time involving the charging of allegedly pornographic films to the taxpayer (Daily Mail March 2009, front page, first paragraph).
I would like to request that you investigate these latest allegations, and that you also consider making a thorough examination of her other claims during her employment in this Parliament, so that the taxpayer can be reassured that this was— as is suggested—an isolated case.
30 March 2009
39. Extract from Article in the Daily Mail, published 30 March 2009 […]
JACQUI SMITH faces the threat of a humiliating demotion after she was forced to apologise yesterday for using House of Commons expenses to pay for pornographic movies watched by her husband.
[…]
Miss Smith submitted the bill for blue movies watched at her family home in […], Worcestershire, as part of a £67 television package claimed under MPs' controversial second home allowance.
She signed it off and, incredibly, it was passed by the Commons authorities.
[…]
Miss Smith's claim for the cost of two porn films came when she 'mistakenly' submitted an invoice for a TV package when billing for an internet connection. An itemised receipt handed to the Commons authorities showed the films had been watched on channels offered by the Virgin Media cable TV service.
Subscribers can watch adult only movies on the Playboy Channel, the Adult Channel and Television X. Films available include Sweaty Sex and Happy Husbands And Willing Wives.
The bill revealed the blue movies each cost £5 and were watched on April 1 and April 6 last year. It also include two pay-per-view screenings of the film Ocean's 13, each costing £3.75, and another £3.50 to watch the movie Surf's Up.
The £67 claim was submitted in June last year.
Although Mr Timney puts in her expenses claims as part of his job as her assistant, Miss Smith must personally sign a form each month declaring they were 'wholly, exclusively and necessarily' incurred for her duties as an MP.
It was paid under the discredited additional costs allowance (ACA), which allows MPs to claim £24,000 a year to run homes in their constituency and another close to Parliament. Television subscriptions are permissible and it once emerged that Gordon Brown claimed for his monthly Sky Sports fees.
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Yesterday 46-year-old Miss Smith—whose majority of 2,716 in Redditch is the slenderest of any cabinet minister—said: “I am sorry that in claiming for my internet connection, I mistakenly claimed for a television package alongside it.
“As soon as the matter was brought to my attention, I took immediate steps to contact the relevant parliamentary authorities and rectify the situation. All money claimed for the television package will be paid back in full.”
Outside their detached home, Mr Timney said: “I am really sorry for any embarrassment I have caused Jacqui. I can fully understand why people might be angry and offended by this.”
[…]
30 March 2009
40. Letter to Mr Robert Waterhouse from the Commissioner, 3 April 2009
Thank you for your letter of 30 March with your complaint against Rt Hon Jacqui Smith MP in respect of her expenses claim.
In essence, your complaint is that Ms Jacqui Smith claimed against the Additional Costs Allowance for films, the cost of which was not permitted under the rules of the House. I have accepted the complaint and I enclose a note which sets out the procedure I follow.
I have not accepted your suggestion that I undertake examination of all Ms Smith’s claims, since my role in this respect is confined to consideration of complaints based on evidence of a breach provided by the complainant.
I am writing to Ms Smith to invite her response to your complaint about the claims for the films. Once I have received her reply, I shall consider how best to proceed.
3 April 2009
41. Letter to Rt Hon Jacqui Smith MP from the Commissioner, 3 April 2009
I would welcome your help on a complaint I have received from Mr Robert Waterhouse about the expenses claim you made for paid items for films on your television account.
I attach a copy of the complainant's letter of 30 March. The complaint is one of a number I have received to the same effect. I also attach a copy of the on-line article in the Daily Mail of 30 March to which he refers. In essence, the complaint is that you claimed against the Additional Costs Allowance for films, the cost of which was not permitted under the rules of the House.
I have not accepted the complainant's suggestion that I undertake examination of all your claims, since as you know, my role in this respect is confined to consideration of complaints based on evidence of a breach provided by the complainant.
The Code of Conduct for Members of Parliament provides in paragraph 14 as follows:
“Members shall at all times ensure that their use of expenses, allowances, facilities and services provided from the public purse is strictly in accordance with the rules laid down on these matters, and that they observe any limits placed by the House on the use of such expenses, allowances, facilities and services.”
The rules for the Additional Costs Allowance published in July 2006 provides in Section 3.1.1 as follows:
“The Additional Costs Allowance (ACA) reimburses Members of Parliament for expenses wholly, exclusively and necessarily incurred when staying overnight away from their main UK residence (referred to
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below as their main home) for the purpose of performing Parliamentary duties. This excludes expenses that have been incurred for purely personal or political purposes.”
Paragraph Section 3.2.1 provides as follows:
— “You can claim ACA if:
…
c) You have necessarily incurred additional costs in so doing, and
d) You represent a constituency in outer London or outside London.”
Paragraph 3.3.1 provides:
"You must ensure that arrangements for your ACA claims are above reproach and that there can be no grounds for a suggestion of misuse of public money. Members should bear in mind the need to obtain value for money from accommodation, goods or services from the allowances."
Section 3.13.1 gives examples of expenditure allowed under the Additional Costs Allowance including:
"…
• Telecommunications charges
• Furnishings
…
— electrical equipment
• Other
— TV licence ...”
Paragraph 3.14.1 sets out expenditure which is not allowable, including:
“…
Living costs for anyone other than yourself
…”
I am aware, of course, of the comments which you made to the press and of your husband's statement. It would be helpful for the purpose of this inquiry, however, if you could:
1. let me know the circumstances in which you came to include the film items in the claim which has been publicized in the media:
2. whether there are similar claims which you have made for paid films against the allowance.
3. the actions you have taken to rectify the position.
Any other points you wish to make to help me with this inquiry would, of course, be most welcome.
I attach a note which sets out the procedures I follow. I am writing to the complainant to let him know that I have accepted his complaint and am writing to you about it. It would be very helpful if you could let me have a response to this letter by the end of April.
Thank you for your help on this matter.
Jacqui Smith 89
3 April 2009
42. Letter to the Commissioner from Rt Hon Jacqui Smith MP, 23 April 2009
Thank you for your letter of 3 April 2009, in which you ask me to respond to a number of points arising from a complaint from Mr Robert Waterhouse.
As I know you are aware from media reports, I have made clear publicly on several occasions that as soon as I became aware of the inclusion of film items in the expenses claim in question I recognised that this claim that should never have been submitted. I apologised immediately and took immediate steps to repay all monies relating to the television package at my Redditch home. I attach a letter from [the Director of Operations] in the House of Commons Department of Resources which acknowledges this repayment.
In relation to the specific points you raise, I am pleased to provide the information you require:
1. the circumstances in which you came to include the film items in the claim which has been publicized in the media;
As part of a claim for the period 1 April 2008-1 May 2008, on 4 May 2008 I submitted a claim for a Virgin Media package which comprised telephone line rental, broadband connection and television services.
The Virgin Media bill I submitted as part of that claim also set out (i) advance charges for the period 20 May– 19 June and (ii) event charges for films watched 'on demand'. These event charges should never have been claimed for, and were inadvertently and mistakenly included in the claim I submitted for 1 May 2008–1 June 2008, dated 4 June 2008.
2. whether there are similar claims which you have made for paid-for films against the allowance;
I submitted claims for the Virgin Media package in March, April, June, July, September, October, November and December 2008.
3. the actions you have taken to rectify the position.
Clearly, event charges for films watched 'on demand' should not have been included in any claim made by me. As soon as I realised this error I took steps to pay back all monies relating to all television services provided by Virgin Media at my Redditch home.
I deeply regret this mistake, and take full responsibility for it. I apologised for the mistake as soon as I became aware of it, and I took immediate steps to repay all monies relating to the television package at my Redditch home.
I sought and received confirmation from the Department of Resources that the total amount I claimed for the months listed above for a media package including television and broadband was £553.20. Excluding broadband services, that total was £393.20.
On 28 March 2009, I wrote a cheque for £400 for the Department of Resources to cover the costs of claims for the television package in its entirety. [The Director of Operations’] letter of 8 April, attached, confirms receipt of this cheque to reimburse the House for amounts paid towards a Virgin Media package, minus the cost of the basic broadband package available from Virgin, for my constituency home
Thank you for giving me the opportunity to respond to Mr Waterhouse's complaint. Please do not hesitate to contact me again if you require further clarification in relation to this matter.
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23 April 2009
43. Letter to Rt Hon Jacqui Smith MP from the Director of Operations, Department of Resources, 8 April 2009
We spoke recently about payments made from the Additional Costs Allowance (ACA). I can confirm receipt of your cheque of 28 March 2009 for £400.00 and I can also confirm that this has been re-credited to your 2008/09 ACA budget.
As discussed subsequently, this reimburses the House for amounts paid towards a Virgin Media package for your constituency home, less the cost of the basic broadband package available from Virgin.
8 April 2009
44. Letter to Rt Hon Jacqui Smith MP from the Commissioner, 28 April 2009
Thank you very much for your letter of 23 April responding to mine of 3 April about this complaint in respect of the expenses claim you made for film items.
I was most grateful to receive your explanation. I note that you have decided to repay the allowances for all the Virgin Media charges except those relating to basic broadband and, I assume, telephone line rental. There are, however, two further points on which I would welcome your help. I need first to know whether when paying back the cost of all your television services for the financial year 2008–09, you have done so because you considered all the claims for these services were in breach of the rules or, if not, which of the services, including the film items, you consider were claimed for in breach of the rules in that financial year.
Secondly, I need to know what claims, if any, you have made for film and television services in each financial year from 1 April 2004 to 31 March 2008 and which of these, if any, you consider were claimed for in breach of the rules.
The reason I need this information is that I will need to come to a view on the extent of the breach of the rules in respect of these claims before I decide how best to resolve the complaint.
Once I have received your response, I am likely to consult the Department of Resources for their advice on the interpretation of the rules and on the actions you have taken to resolve the position. I may also need to ask them for copies of your claim forms.
I would be very grateful for your further help on this matter.
28 April 2009
45. Letter to the Commissioner from Rt Hon Jacqui Smith MP, 30 April 2009
Thank you for your letter of 28 April 2009 in relation to the complaint from Mr Robert Waterhouse.
You ask whether, in paying back the costs for all television services from Virgin Media (except for their most basic broadband package), I believe that all the extra services were in breach of the rules.
The Green Book explicitly examples electrical goods, TV licences and telecommunication services as allowable claimable costs. I don't believe that basic cable or satellite television packages are unreasonable related costs in that context. The Fees Office didn't question the nature or extent of the Virgin Media package that was claimed for at any time over several months.
However, in considering the scale of my repayment of claims I was guided by advice within the Green Book that:
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"You must ensure that arrangements for your ACA claims are above reproach and that there can be no grounds for a suggestion of misuse of public money." (3.3.1. Principles)
I wanted to be perfectly clear about the settlement I was making—in conjunction with my immediate apology for my mistake. I decided to pay back all that I had claimed for in relation to Virgin Media's package except for the most basic broadband and telephone package available.
Secondly, you wished to know about claims made for film and television services in each financial year from 1 April 2004 to 31 March 2008. Apart from annual claims for a television licence I made no claim for any such items. The only claims made for television packages and films were those identified in my earlier letter to you.
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I hope you find this information helpful.
30 April 2009
46. Letter to the Director of Operations, Department of Resources, from the Commissioner, 7 May 2009
I would welcome your help on a complaint I have received against the Rt Hon Jacqui Smith MP about the expenses claim she made for film items.
I attach a copy of the complainant’s letter of 30 March; my letter to Ms Smith of 3 April; her letter to me of 23 April with a copy of your letter to her of 8 April; my follow up letter to her of 28 April and her response of 30 April.
I would welcome your advice on this complaint. In particular, it would be helpful if you could let me know whether the Department considers that Ms Smith was in breach of the rules in respect of any of the claims she made for her Virgin Media package from March to December 2008 inclusive; confirm that she made no claims for any television packages or films before March 2008; and confirm that the only claim made for paid for films was that submitted in June 2008. If possible, it would be helpful if you could include copies of the relevant claim forms and supporting documentation. Any other comments you would wish to make, would, of course be very welcome.
I would be most grateful if you could let me have a response within the next three weeks or earlier if possible.
7 May 2009
47. Letter to the Commissioner from the Director of Operations, Department of Resources, 27 May 2009
Thank you for your letter dated 7 May 2009. You sought advice as to whether Ms Smith was in breach of the rules in respect of claims for her Virgin Media package from March to December 2008 inclusive.
The July 2006 Green Book states in paragraph 3.13.1 that "telecommunications services" are an eligible expense against the Additional Costs Allowance (ACA). Beyond this it is silent.
The telecommunications product market is relatively complex with a variety of products and packages available to the consumer. The advice the Department gives to Members when guidance is requested is that they may claim only for a basic subscription to digital suppliers, which might include for example BBC News24, Sky News, Bloomberg etc. We would further advise that any additional services, such as access to Sky Movies or Sky Sports, would not be appropriate. However, additional services such as these can sometimes be rolled into a single low value package with the marginal cost of the additional subscription thus becoming relatively inexpensive if not zero.
In administrative terms it has not seemed a good use of staff time to investigate in detail the digital package in use by an individual Member unless we had cause for concern. It is often unclear from Members' claims whether additional subscription charges are included. It can also be difficult to distinguish between telephone, mobile, broadband and digital packages.
In her letter of 23 April 2009, Ms Smith notes that she has had a Virgin Media package which comprises telephone, line rental, broadband connection and television services. As a basic package this would be an acceptable claim against her ACA. However, in common with many Members, we received from Ms Smith only the monthly summary bill for payment, apart from one month which included an extra page in respect of 'on demand' items.
You asked for details of Ms Smith's claims for telecommunications services. Ms Smith claimed for her Virgin Media package during 2008 only. In that year she made claims covering eight months and seeking reimbursement for a total of £553.20. These claims were all paid in full. A summary of these claims and copies of the supporting documentation are attached.
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The Department holds only summary invoices for all months apart from Ms Smith's claim for May 2008, received on 6 June. The May claim had with it supporting documentation that identified the cost of 'on demand' films. In my view, this is not eligible expenditure against ACA, a point Ms Smith has accepted in her letter to you of 23 April 2009.
Ms Smith's subsequent claims for her Virgin Media package (for September and October) were made with the same supporting invoice received with her May claim minus the page detailing the 'on demand' items . A member of staff wrote to her in November pointing this out (letter enclosed). Ms Smith's next claim for the Virgin package, which was in March 2009, included supporting invoices for June, July, November and December 2008.
My letter to Ms Smith of 8 April 2009 confirms repayment by her of the full cost of the television services previously reimbursed. Please let me know if you need any more information.
27 May 2009
48. Summary of ACA claims for Virgin Media package
Virgin Media Payments
Date and period of ACA claim Date of Virgin bill Amount
05/03/2009 (01/04/2008 to 30/12/2008 £57.25 01/03/2009)
26/11/2008 £76.00
25/07/2008 £73.50
25/06/2008 £77.45
04/11/2008 (01/10/2008 to 25/04/2008 £67.00 01/11/2008)
06/10/2008 (01/09/2008 to 25/04/2008 £67.00 01/10/2008)
06/06/2008 (01/05/2008 to 25/04/2008 £67.00 01/06/2008)
04/05/2008 (01/04/2008 to 28/03/2008 £68.00 01/05/2008)
27 May 2009
49. Letter to Rt Hon Jacqui Smith MP from Assistant Validation Officer, Department of Resources, 11 November 2008
Thank you for your Additional Costs Allowance claim dated 4 November 2008.
The Department of Resources are required to seek receipts for items costing £25.00 or more. Although you have submitted a statement for payment to Virgin Media totalling £67.00, it relates to a one off payment and does not support monthly direct debits.
I should be grateful if you would submit updated documents, i.e. a direct debit schedule or a bank statement showing monthly payments.
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We have on this occasion processed your claim in full and we look forward to receiving the relevant documents in the near future.
If you have any questions about this matter please contact me on the numbers listed above.
11 November 2008
50. Letter to Rt Hon Jacqui Smith MP from the Commissioner, 2 June 2009
I have now heard back from the Department of Resources about this complaint in respect of your claims for film items against the Additional Costs Allowance.
I attach a copy of the Department of Resources’ letter of 27 May, together with copies of relevant claims forms and correspondence covering the financial year 2008-09. I see from the itemised bill dated 25 April 2008 that the total service charge in that month was £67, made up of £46 advance charges and £21 event charges. The claims for other months vary between £57.25 and £77.45. Could you help me on why there was this difference between the advance charges and the total service charges, if possible with copies of your itemised bills for the other months? In addition, since it would appear that the summary page of the April invoice from Virgin Media was re-presented with your subsequent two claims, would you let me know if these claims were revised following the Department’s letter of 11 November 2008, and if so what were the new amounts?
I am sorry to put you to further trouble, but I am sure that you will appreciate that I do need to have an understanding of the nature of your Virgin Media claims over this period. If it were possible to let me have a response within the next two weeks, that would be most helpful.
2 June 2009
51. Letter to the Commissioner from Rt Hon Jacqui Smith MP, 22 June 2009
You ask for an explanation as to why amounts for event charges varied month by month when I made my claims for my Virgin Media package. This is because the package comprises a basic package and then additional charges for events such as films. I do not have copies of the itemised bills for these months.
You ask about the duplication of the 25 April 2008 bill for the two subsequent months. I had thought that providing a recurring copy of an invoice for a typical month would be acceptable. However, the Fees Office contacted me by letter on 11 November to say that they needed month by month invoices so any further claims were made against individual invoices. No adjustment was asked for and I am afraid I took the request for "receiving the relevant documents in the near future" to refer to subsequent claims not those covering duplicated months. In hindsight, this led to claims in these two months that may not have exactly matched the actual expenditure. It is, of course, not clear as to whether it resulted in a lower or higher claim than would otherwise have been submitted.
What is clear is that any potential over-claim was repaid when I made my £400 payment to the Fees Office on 28 March 2009.
I hope that you find this explanation helpful.
22 June 2009
52. Letter to Rt Hon Jacqui Smith from the Commissioner, 25 June 2009
Thank you very much for your letter of 22 June responding to mine of 2 June about your claims for your Virgin Media package.
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It was most helpful to have this. I am now considering whether this is a matter which I should submit to the Committee on Standards and Privileges with a memorandum. I will also be considering whether this should be combined with a memorandum about the separate complaint on the identification of your London residence for the purposes of your claims against the Additional Costs Allowance.
In this context, it would be helpful to have a common understanding of the facts of this case. As I understand it:
• During 2008 you made eight monthly claims for your Virgin Media package. In each of these months you claimed for a package of advance charges plus additional charges for what are described as ‘event items’, namely films.
• Your first claim was submitted in May 2008 and included advance charges for April-May 2008. There was no comparable package or claim before that.
• Each of your claims was supported by a summary bill, except for the claim of 4 June 2008, which was accompanied also by a detailed list of charges.
• The summary bill submitted with your claim of 4 June 2008 was resubmitted with your next two claims, and the supporting documents subsequently requested by the Department of Finance and Administration in November 2008 were not supplied since you took this to be a request about future claims;
• You claimed a total of £553.20 for this package over the eight months, of which you repaid £400 on 28 March 2009.
• Assuming that the advance charges were £46 a month, as in the invoice which accompanied your claim of 4 June 2008, it would seem that over the course of 8 months the total cost of the event items was £185.20.
• The view of the Department of Resources (set out in their letter of 27 May) is that on-demand films (which comprise the event items claimed) are not eligible expenditure against the Additional Costs Allowance.
It would be helpful to know:
1. whether you agree with this summary of the facts;
2. how the mistaken inclusion of the event items in the 8 months’ claims occurred, including whether you checked each month’s claim before signing it and how far you checked the supporting documents;
3. whether you accept that, had you claimed only for the package of advance charges, there would have been no variation in your claims over the period and so there would not be the uncertainty about whether you over- or under-claimed, as suggested in your letter;
4. whether you accept that your claims for event charges which totalled £185.20 were in breach of the rules of the House.
Any other points you would like to me to consider at this stage would, of course, be very welcome. If you could let me have a response to this within the next two weeks, I would be very grateful. If you would like a word about any of this, do let me know.
Thank you again for your help.
Jacqui Smith 96
25 June 2009
53. Letter to the Commissioner from Rt Hon Jacqui Smith MP, 5 July 2009
Thank you for your letter of 25 June about the above complaint. You ask that I confirm your summarised understanding of the case.
In the main your understanding is correct. The one point of clarification would be that, as I understand it, not all of the "event" charges made in the eight months were "namely films". There were occasions when pay-per- view sport was purchased. I think a description of "charges for additional entertainment elements including films and sport" would be more accurate. Such a description would also echo wording in the Green Book where it prohibits ACA claims for entertainment.
You ask how event charges could have been included in the eight months of claims. I am afraid I did not see the supporting documents setting out the make up of the charges. If I had I hope that I would have picked up on their unsuitability.
I accept that there should have been no variation in the amounts claimed had I simply claimed for the basic broadband Virgin services. Variations month by month were reasonably small, typically by less than £11. However that there were any differences should have set alarm bells ringing. I am afraid it did not.
I have accepted that claims for entertainment are not allowed against the ACA. I am, of course, sorry that such claims were made and sorry that they were not picked up by the Fees Office when they first occurred. It is a matter of great regret and embarrassment to me that I did not check this element of my claims in more detail.
Thank you for your time in investigating this matter. As always, if you require further information I will be happy to provide it.
5 July 2009
54. Letter to Rt Hon Jacqui Smith MP from the Commissioner, 9 July 2009
Thank you very much for your letter of 5 July responding to mine of 25 June about this complaint.
I am most grateful for your very helpful explanation of the position. I am grateful, too, for your clarification of the description of the event charges, which I will adopt.
As I said in my letter to you of 25 June, I am likely to pick up this complaint in the memorandum I am considering preparing on the complaint about the identification of your main home. We are, as you know, in correspondence about that matter which I hope, with your agreement, to be able bring to a conclusion shortly.
Thank you again for your help with this.
9 July 2009
55. Agreed Note of Interview, 1 September 2009
Note of Interview with Rt Hon Jacqui Smith MP, 1 September 2009
Present:
Mr John Lyon CB (JL)
Rt Hon Jacqui Smith MP (JS)
Notetaker
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Introduction
JL Thank you for coming in. This is [the notetaker] who will take a note of our discussion and show it to you so you can be satisfied as to its accuracy. The note will not be verbatim but it will be reasonably full.
You have my letter of 6 August which sets out the procedure and gives you the main areas I wanted us to cover. Other matters may arise during the course of the interview. Are you content for me to go ahead?
JS Yes.
Event items
JL Can we start first with the complaint about your media package and claims for event items? As I understand it, you signed off your media package claims, including for entertainment items for eight months, using the same bills for three months. You have readily accepted that you should not have claimed for the event items, and you have apologised. Is that a fair summary?
JS Yes.
JL You said you shouldn’t have claimed for these items. Why was that?
JS I accept that I have breached the rules. It was acceptable to claim for telephone, broadband and television inasmuch as access to news channels is necessary for parliamentary duties. The entertainment items were not used by me, but even if they had been they don’t come within the category of things necessary for parliamentary duties.
JL Could you explain how you came to make this mistake eight times?
JS Let me show you an example of a Virgin Media bill. You have a summary on the front sheet. Behind it on the second sheet are the details—things that would have been justifiable—although I have repaid some of these— and the event items.
JL Did you look at the detailed sheet when it was included with your claim?
JS No, I didn’t look at the claim carefully enough.
JL The amounts you claimed changed each month. Did you notice that?
JS No. I may have thought that some costs might vary, such as phone costs – but I don’t think I noticed it or thought about it at the time.
JL What thoughts have you had on how to avoid such mistakes in future?
JS I am not claiming anything at the moment. But I am ensuring that I am more careful with future claims, for example with the office costs from the Incidental Expenses Provision.
JL Could I ask about your decision to pay back some of your media package claims? As I understand it, you decided to pay back £400 of the £553 you claimed for your media package—everything except the basic broadband package.
JS As you say, this repayment went beyond the entertainment items. Basic broadband is about £25 per month. I paid back more than simply cutting back to the broadband. I wanted to pay back anything relating to the television. I didn’t want arguments about the package including CBBC that my children watch.
It was a mistake, I rectified it as soon as I became aware of it. If I was trying to pull a fast one I doubt I
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would have chosen anything as personally embarrassing.
JL Thank you. Can we now therefore move on to your arrangements for your home in London?
Arrangements in London
JL Could we start with your living arrangements in London, which you have helpfully covered in your letter of 24 February to me? Could you give me a fuller description of the accommodation and how you and your sister share it?
JS My letter explains how we got there. When I was elected in 1997 I had an arrangement with my sister that I would share with her and her partner in London. From 1997 to 1999, the first two years, Redditch was my main home and I claimed for London as my additional home. Throughout my period as an MP except for a period of about two years when my sister worked outside London and I had maternity leave, we have shared. We have lived in three different places.
We decided early on that we didn’t want to move the children from Redditch to London. We actually had a conversation when I said that I am going to spend more of my time in London. We decided to separate the family home from my main home.
Then in 1999 when I became a Minister I had to claim London as my main home, until February 2004.
The living arrangements are that we have always just shared the house. One of the things that makes me angry is the interpretation of how we live. It is my home in London. There was a short period when I had a flat, but I didn’t like it and it didn’t feel like home.
It is a very nice three bedroom Victorian town house. One bedroom is mine, one is for my sister and her partner and there is one for the children. Downstairs there is a lounge, another reception room and a big kitchen and dining area—all of which we share. And there is a garden at the back.
JL Do you have a separate study?
JS No, I work on the kitchen table. I like people around me.
JL Our work on the diary did not identify many weekends or nights when your husband and your children joined you in your London home. Is that right?
JS Often at the weekends when I am in London the kids are with me. I would agree that this is not frequently—it has happened less as they have grown up. My husband comes more often; he comes once a fortnight during the week to see me.
JL Is it right to conclude from this that your family life is not based in your London home?
JS My children are based in Redditch—my family is based in Redditch. What we explicitly did was to separate my family life from my work life. This is difficult for people to understand and because of this I checked up with the Fees Office.
JL So is your principal use of the London home for your parliamentary business?
JS I would say that the key element has been for Ministerial business. When I became a Minister in 1999, London had to be your main home. In 2004 when I had to think about it I realised that if you are a Minister most of your life is your work and most of your time you spend where your work is. I thought, should I change? but decided that something needed to qualitatively change to justify a change of designation. I didn’t think it likely that I would spend less time in London. Nothing big enough had changed.
London is my home for parliamentary/ministerial duties.
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JL You said that there is a third bedroom partly so that your children can have a room to sleep in when they come up for school holidays and for weekends. How does that work?
JS When they come up that is where they sleep. It is one of the reasons why we moved—so that we could have somewhere proper for them to stay. But they don’t leave things there. Twice a month [another child] stays in it.
JL Do you use the house for entertaining?
JS Not very much. If I entertain I am more likely to do it at a restaurant. But famously—if you read the media—I have entertained some of my colleagues there. I also have friends who come and stay. We spent Christmas there and New Year. The kids bring their friends…my son brought a friend.
It is more than visiting a sister or the children visiting an aunt. They wouldn’t have to ask permission or to be invited.
JL But you don’t entertain very frequently?
JS In terms of frequency this happens every couple of months.
JL What happens to your sister and partner when you entertain?
JS Sometimes they go out; sometimes they join in; sometimes they are in the front room watching television while we eat.
JL You pay a rent, contribute to bills such as utilities and cleaning, you buy the TV licence, you have bought fixtures, fittings and furniture throughout the house, and you paid £1,000 as a share of having a new boiler. Is that right?
JS Yes.
JL Whose name are the utility bills in? How are they split between you and your sister?
JS They are probably in my sister’s name. Arrangements are slightly informal. Her partner pays for a cleaner. I give money on top of my £700 for example occasionally to get repairs done. I say “I’ll get this lot done. I’ll do one lot, you do another.”
JL What fixtures, fittings and furniture have you bought for the home?
JS I have bought two beds, a TV, washing machine, crockery, cutlery, two duvets and pillows, chairs; I have paid for decoration, towels, a chest of drawers, a boiler and repairs.
JL Who decides how the main rooms are decorated and painted?
JS Me and my sister. She is more artistic, so she would decide—except for my bedroom . But I am consulted.
JL What are the council tax arrangements?
JS I believe my sister pays. I haven’t contributed.
JL I see that you only reported the change in your main home to your current London address in March this year (11 months after you moved). Paragraph 3.11.1 of the Green Book says that it is the Member’s responsibility to tell the Fees Office if your main home changes. Paragraph 3.12.1 asks you to inform the Department promptly. How did you come to overlook that requirement?
JS I failed in my responsibility. When we moved I didn’t change my designation. I accept that I breached that rule.
JL How would your husband and children describe your London home in terms of whose home it is?
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JS I think they would just call it London. They don’t identify whose home it is. They just think of it as London.
Arrangements in Redditch
JL Can we now turn to your arrangements in Redditch? Can you describe the accommodation to me?
JS We have a lounge and dining room and a large kitchen. We have four bedrooms, and one bathroom (just as we do in London) but the garden is bigger in Redditch than in London. There is a drive and a garage. It is a nice large detached four bedroom house.
JL Your claims come under the headings of mortgage interest, utility bills, Council Tax, phone and telecommunications, service and maintenance, repairs and cleaning. Are there ACA items which you could claim but don’t in fact claim for?
JS Over the period that is what I have claimed for, but I haven’t claimed for every month in every category. I haven’t claimed for food or subsistence.
JL How do you decide what to claim for?
JS We always claim for mortgage interest and council tax and utilities although not always the whole utility bills. We claim for telephone, maintenance and cleaning. But the costs are greater than the maximum of the allowance. It is a matter of choosing what to claim for when we reach the ceiling.
JL Who chooses the furniture and decoration?
JS My husband—but I am consulted, similar to in London.
JL You claim for the full Council Tax from your ACA. Why do that if you don’t live there yourself?
JS It never crossed my mind to apply for a discount. It would be weird to take money from my constituents to make a saving for the mass of taxpayers. It never crossed my mind to do this. I always thought that the single person discount was for if there was one person in a home. I think of myself as living there.
JL Would your constituents, if asked, and knowing what you have told me, see you as having your main home in Redditch or in London?
JS That is quite interesting. Some think that the Home Secretary is in London the whole time. If I meet them on a Saturday they would say “Have you come down from London today?” They think I live in London.
JL But if they had the information we have been discussing today?
JS Probably quite a few would say your main home is where your children are. That is precisely why I checked with the Fees Office.
But if you are Home Secretary you do and should spend most of your time in London. I was making claims on the basis of my individual circumstances, not my family circumstances.
I honestly don’t know—it depends on how they were thinking about me.
The Green Book: Definitions
JL I would like now to turn to the rules in the Green Book. The first statement is that the location of your main home is normally a matter of fact. What do you say to the suggestion that it’s a simple matter of fact that your main home is in Redditch?
JS I don’t necessarily think that is the case. The most important thing from 1999 until June this year has been my Ministerial role and my Ministerial work. The default position is that I am doing my
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Ministerial work; that I am in London and working.
JL How much were you influenced in your decision about your main home by your judgement about where you were going to be spending your nights?
JS I knew the definition was about nights. I didn’t count up, except to think “Where do I have to be?” I thought timewise the demands on me were to be in London. But I didn’t count up the nights.
JL Did you take account of the fact that on becoming Home Secretary and had a driver you could now get back to Redditch more easily?
JS Yes, once I became Home Secretary and had protection and had a car it became easier to get back to Redditch. If I needed to be in London for 9am I could not manage before. But I could when I had the driver.
JL Would you agree that as soon as you could manage the travelling, there was a pull to spend more time with the family?
JS Yes, anybody would do that. When I could I travelled to Redditch to spend the night there.
JL You know that the Ministerial requirement about assuming your main home was London was abolished in 2004. So could you explain more fully than you did in your letter of 26 March why you said it influenced you in counting London as your main home? Why did you make the assumption that it was necessary to have a significant change rather than reverting back to your original designation?
JS I believed the change related more to Ministers with no real base in London, for whom the old rule was clearly wrong. I thought about what determined my home. And I thought about my likely overnight stays in the year, as a Minister based in London.
If I had changed designation when the rule was lifted I would have been asked why. Was it to save me money?
It was not just inertia. It seemed to me that you needed a justification to change. If asked the question, would I really have said that as Home Secretary I spent more time in Redditch than in London?
JL But the test is based on nights. You spent more nights in Redditch over the last two years.
JS It changed in the last year [2008–09]. I could not have known in advance.
JL Do you accept that it was starting to change earlier?
JS I agree it changed.
JL As a matter of principle do you accept that you were not bound to identify London as your main home?
JS Well, having gone through the process I considered it would be more difficult to justify having my homes the other way round.
JL Do you accept that the rule says “normally” , and the position on overnight stays does allow for exceptions?
JS I remember your report on Ed Balls and Yvette Cooper. The number of nights is a reasonable test.
JL At the same time the exception enabled Members to take account of their personal circumstances.
To recap, just to make sure I have got this right: your decision was not based on the number of nights but on your personal circumstances and your living arrangements. Even after you were spending more nights in Redditch, you still thought of your London home as your main home.
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JS I was living with my sister. That is why my arrangements have attracted criticism.
I had the opportunity to share with my sister. I wasn’t just renting a room. We have a close relationship.
JL After you became Home Secretary in 2007 did you consider that you were likely to spend more time in Redditch than in London?
JS Based on looking forward, I made my best judgement on the basis of where I expected to stay. But I didn’t count up the nights, and I couldn’t plan for unexpected events.
JL You will have considered the likely balance of stays between London and Redditch, and all your personal circumstances, with your family in Redditch and, as you said in a statement earlier this year, you are a close knit family. Is that not just the sort of circumstances which suggest you should have seen yourself as an exception to the general rule on overnight stays and located your main home in Redditch?
JS My sister is part of my close knit family.
JL Haven’t you also said that your “nuclear” family is close knit?
JS I like to think so, although looking back I realise in practice I have spent a lot of time away from them as a result of my ministerial duties.
I didn’t question the designation when I became Home Secretary. If I was aware of it I might have thought about changing my designation. But I would have to have thought about it carefully.
I would have to have thought carefully about where I would spend my nights as Home Secretary and the difference in where I spent the nights. I wasn’t in Redditch as much as I had been.
JL Were you aware that since becoming Home Secretary your pattern of overnight stays was changing in favour of your constituency home?
JS London was where I was most of the time.
JL Once you had to base your identification of your main home on the facts rather than the ministerial presumption, were you still right to identify your main home as London? The number of nights spent there grew smaller once you became Home Secretary.
JS At the time when I became Home Secretary something qualitative would have had to happen to make me change the designation. Nothing did happen.
JL Had you been aware, would you have considered changing the designation of your main home from London to the constituency?
JS I felt that I was spending much more time in London. I wanted somewhere that felt like a home.
JL But the police figures showed something different, with more nights spent in the constituency. Between the police figures and the diary estimates there is a big difference. Why do you think there is such a big difference?
JS The police figures were collected for a different purpose. I believe the combination of my Ministerial and personal diaries are likely to be more accurate.
JL The police figures are collected because they need to pay staff accurately, to show who is on duty when. With your figures we had to make certain assumptions.
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JS There were likely to have been similar issues with the police figures. There could be some double counting. The figures were kept for the purposes of accountancy not to identify police officers’ locations. They were accurate enough to show how many staff they had on protection teams at any point but not necessarily where they were allocated.
JL The definition of a main home changed significantly in April 2009. The number of nights is no longer the test. It is for the Member to decide with no qualifying criteria. Have you reconsidered the designation of your main home in the light of this change in the rules?
JS No, for the same reason that applied in 2004. There would need to have been a qualitative change in my circumstances.120
Consulting the DFA
JL May I turn to the telephone conversation your husband had with the Fees Office on 18 June 2007, recorded briefly in the file note I sent you on 21 May. Is this a reasonable summary?
JS Yes.
JL Do you accept that this suggests you had doubts in your mind??
120 After the interview Ms Smith said “Whilst the change in the Green Book didn’t change my view, I think I made clear during the interview that I have not claimed any ACA since I finished as Home Secretary at the beginning of June. This is because I now believe that the change in my circumstances would make Redditch my main home. This is the sort of ‘qualitative change’ that I refer to earlier. However, as the House has now decided that no member can change their designation, I have not claimed any ACA.”
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JS We were thinking of moving in London, as we did in April 2008. I thought about what I was claiming for. Some people think the family’s home is the same as my main home, and my family is in Redditch so that must be my home too.
I realised I would be criticised for my arrangements. I was trying to ensure that I stuck by the rules.
JL What would you say to the suggestion that this demonstrates you were considering your options— London or Redditch?
JS I was trying to ensure I stuck by the rules. The most financial benefit to me would have been to share the mortgage in London with my sister. That would have cost the taxpayer more in the long run. I decided not to do that.
I wanted to carry on living with my sister. I liked it, it felt right. I am reasonably unusual among my colleagues in that I have never bought a second home: I only own one home not two.
JL How heavily were you influenced by the suggestion that you could not claim for rent if you nominated the London house as your second home, since your sister paid the mortgage?
JS I could have claimed for food, subsistence, furniture, the boiler. I don’t think there was a lot in it. I was about to move home—I would have been justified in claiming the cost of moving and my share of the council tax as I expect it would have been more in London than it was in Redditch.
In Redditch there are parts of the costs of the house that we don’t claim for, such as the office. I don’t believe I would have claimed less the other way round. The Green Book asks Members to bear in mind value for money, as we do. That is why I use part of our home as an office.
Final Points
JL Finally, what would you say to the suggestion that you had discretion under the rules to nominate Redditch as your main home, on a balanced analysis of the facts it is your main home; and that you should therefore have identified Redditch as your main home for the purpose of any ACA claim you made?
JS That is based on a lack of understanding of the rules and a complete misunderstanding of my living arrangements. It has been said that I have been my sister’s lodger—those have never been my arrangements. I would have been criticised as being a part time Home Secretary and it would have been said that I wasn’t spending more time in Redditch. And I would have been asked what had changed to justify my “flipping”.
JL But on the basis of your overnight stays ; the nature of the accommodation ; your working and family life ?
JS Looking back I stuck by the spirit of the rules, by the rules as they were pre-2004; I tested them by checking with the Department; I fulfilled the objective requirement of the rules; I made a reasonable judgement that prospectively I was likely to spend more nights in London than in Redditch.
JL Anything else you would like to say?
JS This isn’t a personal criticism, but I don’t think it is right that people can make a complaint first to a political party and then to the Mail and then back off. The untrue version gets into the papers and is repeated and then Members are held to account for it—with no consequences for the complainant.
The complainant had experienced just one summer when I was living at that property; and one Christmas when she was away. That is pretty significant.
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JL Wouldn’t she argue that overall from April 2008 she was right, you were not there more nights than you were in any other place?
JS I don’t think she was. She oversold her case. Our other neighbour who has a better view of the property believes I was there 60% of the time.
Conclusion
JL Thank you. We will now prepare a note of our discussion and show it to you so you can comment on its accuracy. Once I have the note of the meeting I shall send it to you in the next couple of days together with the factual sections of my memorandum, for you to check for accuracy.
I will then add my conclusions and submit the full memorandum to the Committee. The Clerk will show you it and invite any comments you want to make about it and any comments will be submitted to the Committee with my memorandum. Thank you for coming in.
1 September 2009
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Appendix 2: Letter to the Clerk of the Committee from Jacqui Smith, 18 September 2009
Thank you for your letter of 15 September 2009 enclosing the report from the Parliamentary Commissioner on complaints made against me with respect to my claims for my second home and for a media package.
Second Home
I would like to raise several issues with respect to the Commissioner’s conclusions contained in paras 159–178.
I recognise that this investigation has been conducted at a time of great scrutiny of parliamentarians, in terms of both the general principles and operation of Parliamentary Allowances and the specifics of my case.
I also understand - all too well - how difficult it can be to withstand the intense public and media interest that has been generated, but my hope and expectation has been that the Commissioner would arrive at conclusions which are based on the objective application of the principles set out in the Green Book, and which are consistent with his recommendations in previous investigations of Members of Parliament. I would ask the Committee to bear this context in mind as they consider my case, in order to avoid a situation where an individual Member of Parliament is singled out in a disproportionate and unfair manner.
For the most part, I believe that the Commissioner's report reflects my position accurately.
However, the Commissioner has concluded that I should have made myself an exception to the objective elements of the rules and to the ‘custom and practice’ for Ministers.
This is a judgement arrived at after a seven month consideration and appears to be heavily influenced by subjective judgements about my personal circumstances.
I hope that the Committee will recognise that the decisions I took at the time of designating my main and second home could only have been taken on the basis of the rules as they were then and advice that I received about those rules, on objective measures of my circumstances and the best estimate of what future circumstances were likely to be.
On this basis I believe that I made a reasonable and defensible decision.
My London Home
The Commissioner recognises that my London home is indeed a home. He dismisses the most usually repeated newspaper descriptions of my living arrangements. I welcome this judgement.
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Objective evidence
The Commissioner and I spent a considerable part of the investigation on the issue of where I spent my nights. I note your 14th Report of Session 2007–8, para 4:
‘….., the Commissioner has endorsed the principle set out in the Green Book as the primary test for determining a Member’s main residence for ACA purposes, namely that ‘if you have more than one home, your main home will normally be the one where you spend more nights than any other’.
As the Commissioner makes clear, I provided - and went over personally with him - my personal and Ministerial diaries night by night for the last four years. I agreed to the provision of personal information from my Police protection teams as Home Secretary. As the Commissioner requested, I provided photographic evidence of where I had spent Christmas and New Year 2008 to rebut the complainant’s contention that I hadn’t been at my London home over that period. The agreed conclusions from this are reported in para 72. They show that for financial years 2005/6, 2006/7 and 2007/8 I spent more nights in my London home than in my Redditch home.
I am, therefore, unclear on what basis the Commissioner says in para 167 that my decision ‘gave insufficient weight to ……… the balance of nights she was to spend in London and in Redditch’ or says in para 168 ‘Ms Smith did not give sufficient weight … to the objective overnights test…..’
Retrospectively this is a fair criticism of what actually occurred in financial year 2008/9. However, prospectively I believe that it was a reasonable judgement based on previous years and on the fact that I was Home Secretary at the time that I was likely to continue spending more nights in London than in Redditch.
Subjective considerations
In concluding that I should have exercised discretion against the objective measure of where I spent my nights, the Commissioner emphasises two factors—my family life and the tenure of my two homes.
The Commissioner claims that I have a ‘close knit nuclear family’. I’m not sure on what evidence he bases this. The public statement that he referred to in our interview was about my relationship with my sister. I was making the point at the time that one of the reasons I shared a home with my sister was because we were close!
The Commissioner argues that in coming to my decision, I overemphasised my working life and under emphasised my family life.
As the need for allowance arises directly from the fact of my job as an MP and a Minister, I think it is appropriate to give this element weight. Furthermore, as anyone who has held Ministerial office will know, the distinction between working life and ‘other life’ is pretty slim given the time and responsibilities involved!
This was, of course, recognised in the pre 2004 rules about the designation of main homes for Ministers. It was assumed that Ministers would spend the majority of their time in
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London. I considered this to be a wholly rational assumption for the majority of Ministers. This precedent was an important factor in my decision not to change the designation of my main home after 2004.
I didn’t ‘flip’ because I didn’t think it was justified by my personal circumstances.
I have never hidden the fact that my family live in my Redditch home. I made my thinking on this clear in my first written evidence to the Commissioner:
‘When I became a Minister, my husband and I did consider whether to move our children to London. However, they were born in Redditch, go to school there and have established friends and activities there. ….. We took a conscious decision to split the main family home from my main home. I noted that in your report on Ed Balls and Yvette Cooper it was the location of the individual Member that was decisive in determining where time was spent – not where the family were based’. Written evidence no 5, p60.
I made this clear to the Department of Resources when I asked for and received advice that supported my decision in 2007. Written evidence no 7 and 8, p64.
I am sure the Committee will want to give careful consideration to the implications of this judgement for other members. It would seem to imply that there can never be a distinction between ‘family home’ and ‘main home’. I suspect many other members would fall foul of this interpretation in retrospect – not least as it runs contrary to the advice of the Department of Resources.
In para 174, the Commissioner emphasises that I don’t own my London Home. It is true that I have a mortgage on my Redditch home and am only a guarantor of the mortgage on my London home paying rent to my sister. Many of my constituents count as home, somewhere that they only rent. Furthermore, I note the considerable controversy surrounding parliamentary colleagues who own two homes. I have always only owned one home.
Use of discretion
In his final paragraph, the Commissioner concludes that I should have ‘exercised my discretion’ to make a different decision.
If I had done this, it would have been:
• A shift away from the previous practice for Ministers at a time when I was spending more, not less time in London • Against the ‘primary’ and objective test in the rules for 3 of the 4 years in question • Not supported by advice I sought and received from the then Fees Office.
On this basis, I believe that the decision that I took was a reasonable one in the circumstances.
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As the Commissioner reports in Para 100, my argument is that I stuck by the spirit of the pre 2004 rules; tested them by checking with the Department; fulfilled their objective requirements and made a reasonable judgement that prospectively I was likely to spend more nights in London than in Redditch.
I have never ‘flipped’, I have only ever owned one home and I don’t believe that making a different decision would have resulted in better value for money.
I have sought throughout to co-operate fully and openly with the Commissioner's inquiry. I have provided unprecedented access to Ministerial and personal diaries, my case has been supported by my nearest neighbour and my decision was upheld by advice I received from the Parliamentary authorities.
I am disappointed that this process has not led to a fairer set of conclusions, based on objective and consistent application of the rules as they were at the time.
I hope that the Committee will bear this in mind in their consideration of the Commissioners report.
Media Package
I accept the Commissioners conclusions on this and repeat my wholehearted apology that this mistake happened
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Formal minutes
Tuesday 22 September 2009
AFTERNOON SITTING
Members present:
Mr Kevin Barron Mr Chris Mullin Mr Andrew Dismore Mr Paddy Tipping Mr Greg Knight Dr Alan Whitehead
In the absence of the Chairman, Mr Kevin Barron was called to the Chair.
Draft Report (Jacqui Smith), proposed by Mr Barron, brought up and read.
Ordered, That the draft Report be read a second time, paragraph by paragraph.
Paragraphs 1 to 9 read and agreed to.
Paragraph 10 read, amended and agreed to.
Paragraphs 11 to 19 read and agreed to.
Paragraph 20 read, amended and agreed to.
Paragraph 21 read and agreed to.
Paragraphs 22 and 23 read, amended and agreed to.
Paragraph 24 read and agreed to.
Paragraph 25 read, amended and agreed to.
Paragraph 26 read and agreed to.
Paragraph 27 read, amended and agreed to.
Paragraphs 28 to 30 read and agreed to.
Paragraph 31 read, amended and agreed to.
Paragraph 32 read and agreed to.
Paragraphs 33 to 36 read, amended and agreed to.
Paragraphs 37 to 45 read and agreed to.
Two Papers were appended to the Report.
Resolved, That the Report, as amended, be the Ninth Report of the Committee to the House.
Ordered, That Mr Barron make the Report to the House.
[Adjourned till Tuesday 20 October at 9.30 am