The Cabinet Office v The Information Commissioner [2025] UKUT 114 (AAC)

‘I wish to raise a complaint about the clear breach of the Ministerial Code by former and current Secretary of State, Ms Priti Patel MP. The circumstances are outlined in the Guardian article linked in my tweet below. In addition, I note that the Code states clearly that retrospective applications will not normally be accepted. This was not the position adopted in Ms Patel’s apparent second breach of the Code. I am making, separately by this email, a freedom of information request about Ms Patel’s original breach of the Code and this apparent new breach of the Code. Please provide all relevant information held by the Cabinet Office that is not covered by an exemption under the Act. If an exemption applies, please still provide what information you can and explain the use of the exemption. I look forward to receiving an acknowledgement and full response to both this complaint and the separate FOI request. These are separate matters that suggest Ms Patel is not fit for the high office to which she has recently been appointed’. 12. On the same date, the complainant sent a tweet, including the Cabinet Office’s twitter handle, in the following terms: ‘#PritiPatel accused of breaching #MinisterialCode for second time. Code adds: ‘Retrospective applications will not normally be accepted. ‘Again, she falls below ‘high standards’ of a current and former SoS. ??@cabinetofficeuk?? Will this go to ACOBA? #FOIA’. 13. The tweet referenced a link to the aforementioned article in the Guardian newspaper. As noted, The Ministerial Code requires ministers to consult ACOBA before taking on paid work for a period of two years after they leave office. 14. The Cabinet Office acknowledged receipt on 2 September 2019 but gave the date of the request as 23 August 2019. The complainant replied to the Cabinet Office on 2 September and advised them that his request was submitted on 3 August, not 23 August and that section 10 of the FOIA required a public authority to provide a response within 20 working days. 15. The Cabinet Office wrote to the complainant on 3 September 2019 and informed him that they had no record of receiving an FOI request from him directly. They confirmed that they received a copy of his request that was passed to them from ACOBA and had decided to log and process it as a direct request, even though they had not received direct correspondence from the complainant. The Cabinet Office confirmed that they would provide a response from the date that they received the request – 23 August 2019. 16. The complainant wrote back to the Cabinet Office and advised them that he submitted his request to ACOBA on 3 August 2019, and they had copied it to the Propriety and Ethics Team at the Cabinet Office on 6 August 2019. In addition, the complainant advised that he raised a similar FOI request via Twitter on 3 August, which was copied directly to the Cabinet Office. He stated that it was the responsibility of organisations to monitor social media for FOI requests. 17. The Cabinet Office wrote to the complainant on 11 October 2019 and confirmed that they held information within scope of his request but that they considered that the information was exempt under section 36 (prejudice to the effective conduct of public affairs) of the FOIA. They advised that they needed further time to consider the balance of the public interest test. 18. On 31 January 2020, the complainant complained to the ICO about the failure of the Cabinet Office to provide him with a substantive response to his request. 19. The Commissioner wrote to the Cabinet Office on 10 February 2020 and requested that the Cabinet Office provide the complainant with the outstanding response within 10 working days. That correspondence was neither acknowledged nor responded to. The complainant contacted the Commissioner on 25 February 2020 and requested that the Commissioner issue a decision notice to ensure the Cabinet Office’s compliance with the Act. 20. The Commissioner issued a decision notice (FS50906944) https://ico.org.uk/media/action-weve-taken/decision-notices/2020/2617422/fs50906944.pdf on 4 March 2020, finding that the Cabinet Office received the complainant’s request on 3 August 2019, as the request was clearly directed at an email address carrying the Cabinet Office’s domain name and the fact that the complainant received an automated response. 21. The Commissioner noted that his guidance states that a ‘reasonable’ extension of time to consider the balance of the public interest attached to a request will normally be an additional 20 working days. In this case the Cabinet Office had had an additional six months to consider the request and the Commissioner was not aware of any circumstances which would be likely to justify such a lengthy delay. The Cabinet Office had been unable to offer any justification for the delay. The Commissioner found that the Cabinet Office had failed to complete their public interest test considerations within a reasonable timeframe and had therefore not complied with section 17(3) of the Act. The decision notice ordered the Cabinet Office to issue a substantive response to the complainant within 35 calendar days. 22. The Cabinet Office subsequently provided the complainant with their substantive response on 23 March 2020. They informed the complainant that in relation to his request for information about ‘Ms Patel’s original breach of the Code’, they did not hold any relevant information. The Cabinet Office did not rebut the complainant’s assertion about Ms Patel’s original breach of the Ministerial Code. In relation to Ms Patel’s engagement with ACOBA, the Cabinet Office confirmed that they held some information within scope of the request. 23. The Cabinet Office advised that the information held was exempt from disclosure under sections 36(2)(b)(i), 36(2)(b)(ii) and 36(2)(c) of the FOIA. The response provided no explanation as to why or how the exemption applied to the specific information requested and gave an entirely generic and inadequate consideration of the public interest test. This was particularly unsatisfactory, given that the Cabinet Office had taken more than six months to provide the response. 24. The Cabinet Office recognised that there ‘may’ be a public interest argument in favour of disclosing information where this could increase trust in government, increase confidence in the decision making process, or inform the public debate on important matters. However, the Cabinet Office stated that there was also a public interest argument in favour of non-disclosure of the information, ‘in particular to allow the free and frank exchange of views between officials for the purposes of deliberation of advice and to protect against the disclosure of information that might otherwise prejudice the effective conduct of public affairs’

‘You make no reference to taking over seven months to respond to a request on 3 August. You make no reference to my repeated chasers and appeals for your internal review process, including via your team, the Permanent Secretary, my MP, the PHSO and the ICO. You make no reference to the fact that the ICO issued a decision in my favour requiring you to respond to my request. You provide an (as anticipated) evasive response to my request, simply stating statutory exemptions, without explaining how they apply specifically to this request. The link you provide under the Section 21 exemption returns ‘Page not found’ so the information is not accessible. The exemption has been misapplied. You also insist that the Cabinet Office – presumably including ACOBA, to whom my original request was addressed, holds no information about Ms Patel’s original breach of the Ministerial Code. This suggests the Cabinet Office is not exercising properly its functions under the Code. Finally, you failed even to spell my name correctly. I would therefore like: (a) a review of this request; and (b) an explanation of your failure to provide a full and timely response’

‘Retrospective applications will not normally be accepted. ‘Again, she falls below ‘high standards’ of a current and former SoS. ??@cabinetofficeuk?? Will this go to ACOBA? #FOIA’. ‘You make no reference to taking over seven months to respond to a request on 3 August. You make no reference to my repeated chasers and appeals for your internal review process, including via your team, the Permanent Secretary, my MP, the PHSO and the ICO. You make no reference to the fact that the ICO issued a decision in my favour requiring you to respond to my request. You provide an (as anticipated) evasive response to my request, simply stating statutory exemptions, without explaining how they apply specifically to this request. The link you provide under the Section 21 exemption returns ‘Page not found’ so the information is not accessible. The exemption has been misapplied. You also insist that the Cabinet Office – presumably including ACOBA, to whom my original request was addressed, holds no information about Ms Patel’s original breach of the Ministerial Code. This suggests the Cabinet Office is not exercising properly its functions under the Code. Finally, you failed even to spell my name correctly. I would therefore like: (a) a review of this request; and (b) an explanation of your failure to provide a full and timely response’

“Public interest test 46. Section 36 is a qualified exemption and in accordance with the requirements of section 2 of the Act the Commissioner must consider whether in all the circumstances of the case the public interest in maintaining the exemption cited outweighs the public interest in disclosing the information. 47. In considering complaints regarding section 36, where the Commissioner finds that the qualified person’s opinion was reasonable, he will consider the weight of that opinion in applying the public interest test. This means that the Commissioner accepts that a reasonable opinion has been expressed that prejudice or inhibition would, or would be likely to occur but he will go on to consider the severity, extent and frequency of that prejudice or inhibition in forming his own assessment of whether the public interest test dictates disclosure. 48. It is important to be clear that the exemptions contained in section 36 focus on the processes that may be inhibited, rather than what is in the withheld information. The issue is whether disclosure would inhibit the processes of providing advice or exchanging views. In order to engage the exemption, the information requested does not necessarily have to contain views and advice that are in themselves notably free and frank. On the other hand, if the information only consists of relatively neutral statements, then it may not be reasonable to think that its disclosure could inhibit the provision of advice or the exchange of views.”

“Commissioner’s position 60. During the course of his investigation, and in correspondence with the Cabinet Office, the Commissioner had referred to Ms Patel having breached the Ministerial Code, prior to her resignation as Secretary of State for International Development in November 2017. This reference was based upon the wording of Ms Patel’s resignation letter dated 8 November 2017, the FOI request of 3 August 2019, the Cabinet Office refusal notice of 23 March 2020, and the internal review response of 16 September 2020. The Cabinet Office strongly objected to this and stated that ‘there has never been any finding that the Home Secretary has committed a breach of the Code’. The Cabinet Office emphasised that ‘the Code itself makes clear that only the Prime Minister is entitled to make any determination of a breach. No such finding has been made in respect of the Home Secretary, whether in November 2017 or since’. 61. The Commissioner entirely accepts that it is only the Prime Minister who has the power to decide whether a minister has breached the Ministerial Code. However, the Commissioner considers that the specific wording of Ms Patel’s own resignation letter makes perfectly clear that she herself considered her conduct fell below expected standards and that is also accepted and reflected in Mrs May’s response. 62. In her resignation letter to Mrs May, which was widely disseminated in the public domain, Ms Patel stated that, ‘I accept that in meeting organisations and politicians during a private holiday in Israel my actions fell below the standards that are expected of a Secretary of State’. Ms Patel added that ‘while my actions were meant with the best of intentions, my actions also fell below the standards of transparency and openness that I have promoted and advocated’. In her reply, Mrs May informed Ms Patel that, ‘now that further details have come to light, it is right that you have decided to resign and adhere to the high standards of transparency and openness that you have advocated’. 63. Ms Patel’s actions prompted her immediate resignation. There may not have been any formal finding by Prime Minister May as to whether Ms Patel had breached the Ministerial Code but arguably that was only because Ms Patel’s resignation made a formal finding superfluous. 64. To be clear, in referencing Ms Patel’s ministerial history, the Commissioner does not seek in any way to encroach upon the jurisdiction and remit of the Prime Minister as sole arbiter as to determining breaches of the Ministerial Code, but is recognising the public interest which lies behind the complainant’s request and is referenced in the same. 65. The Commissioner notes that in a previous decision FS507959018 (October 2019) https://ico.org.uk/media/action-weve-taken/decision-notices/2019/2616091/fs50795901.pdf , he similarly recognised that there was a significant and strong public interest in knowing why a former Foreign Secretary (as the current Prime Minister was at the time of that request) with a particularly high public profile, failed to comply with his duty under the Ministerial Code and seek ACOBA’s advice prior to taking up a position as a columnist for The Telegraph. 66. In that case the Commissioner noted that the public interest was particularly prominent as that was not the only case in recent years where a former senior government minister had been found not to have complied with the BARs. In April 2017, ACOBA noted that it was ‘a matter of regret’ that former Chancellor of the Exchequer, George Osborne’s appointment as Editor of the Evening Standard was announced on 17 March 2017, only four days after Mr Osborne had submitted his application to ACOBA and before the Committee had an opportunity to make the necessary enquiries, consider his application and provide its advice. In a letter to Mr Osborne (published on the ACOBA website) of 28 April 2017, the Committee stated that it was not appropriate for him to have signed his contract of employment with the Evening Standard on 20 March 2017, without having received the Committee’s advice. 67. Given that the Cabinet Office have been clear with the Commissioner about the technical accuracy that there has never been a finding that the Home Secretary has committed a breach of the Ministerial Code, it is unfortunate and regrettable that the Cabinet Office was not similarly clear with the complainant. Both in their substantive response to the complainant of 23 March 2020 and subsequent internal review of 16 September 2020, the Cabinet Office informed the complainant that they held no information about ‘Ms Patel’s original breach of the Code’. By omitting the important word ‘alleged’, the Cabinet Office arguably impliedly accepted that there had been a previous breach of the Code by Ms Patel (which was the complainant’s belief). The Cabinet Office could and should have made clear to the complainant that they held no such information because Ms Patel had never been found to be in breach of the Ministerial Code (i.e. no such information could be held). 68. In submissions to the Commissioner, the Cabinet Office contended that the Commissioner’s consideration of allegations against the Home Secretary and information in the public domain concerning the same ‘represents a serious departure from its proper remit’. The Cabinet Office further asserted that ‘it is not appropriate for the ICO to undertake any detailed engagement with party political statements or to speculate about allegations of misconduct against senior Ministers’. 69. There is a clear and strong public interest in knowing that Ministers abide by and respect the Ministerial Code, and where there are grounds for suspecting that they may not have done, there is an important and obvious public interest in transparency and accountability as to what the consequences are (if any) for any Minister who has not abided by their obligations under the Code. In stating this, the Commissioner is absolutely clear that it is not for him to determine whether or not Ms Patel breached the Ministerial Code, that determination being for the Prime Minister alone as the Cabinet Office has correctly stated. 70. However, the Commissioner considers that it is not only appropriate, but essential, that in the context of this case, he recognises and considers the public interest attached to the withheld information. This is in no way a ‘serious departure’ from the Commissioner’s well established and consistent approach. 71. It is a fact that Ms Patel accepted her role at Viasat before seeking advice from ACOBA. It is also a fact that the Ministerial Code is very clear that departing ministers (as Ms Patel was at that time) must seek advice from ACOBA about any appointments or employment which they intend to take up within two years of leaving office before accepting any such role(s). It is therefore unsurprising that questions should be asked as to whether Ms Patel was in breach of the Code. 72. That public interest is given particular prominence in the present case because of the wider context and history in which Ms Patel’s adherence to the standards required of Ministers has been called into question. The Commissioner has already addressed the circumstances of her resignation as Secretary of State for International Development above. More recently, on 29 February 2020 Home Office Permanent Secretary, Sir Philip Rutnam, resigned and alleged that he had been subject to a ‘vicious and orchestrated campaign’ for challenging alleged mistreatment of civil servants by the Home Secretary. 73. As the Upper Tribunal recently confirmed in Montague v The Information Commissioner and The Department of Trade (UA-2020-000324 & UA-2020-000325) [13 April 2022], the time for judging the competing public interests in a request is at the date of the public authority’s decision on the request under Part 1 of the FOIA and prior to any internal review of the initial decision https://assets.publishing.service.gov.uk/media/6273a6ec8fa8f57a41d53ee9/UA_2020_000324_000325_GIA.pdf . 74. On 29 February 2020, Sir Philip Rutnam resigned from his post for the reasons set out above. On 2 March 2020, the then Minister for the Cabinet Office, Michael Gove, confirmed that his department would investigate alleged breaches of the Ministerial Code by the Home Secretary. The Commissioner therefore considers that at the time of the Cabinet Office initial refusal notice on 23 March 2020, there was a strong and legitimate public interest in transparency and accountability concerning Ms Patel’s compliance with the Ministerial Code. 75. In supplemental submissions to the Commissioner, the Cabinet Office clarified the apparent contradiction between their having stated that ‘the information in question is now almost two years old, and so might not be thought to relate to a live issue’, and ‘the information sought relates to an issue which was live at the time that the request was made and remains so’. 76. The Cabinet Office stated that their reference to the issue remaining live was in the sense that the Minister in question is a serving minister and that has a ‘live’ and direct impact on those providing the advice in this case as well as the future chilling effect. In respect of their second statement, the Cabinet Office advised that ‘we were simply making the point, in relation to the public interest test, that the matters specific to the held information/complaint were arguably not under live consideration’. 77. In respect of the issue which was central to the complainant’s request, namely, Ms Patel’s alleged breach of the Ministerial Code in failing to notify ACOBA before taking up her role at Viasat, the Cabinet Office informed the Commissioner that the outcome/response in respect of the complaint which was made to the Prime Minister by Mr Trickett was not within the scope of the current request. The Cabinet Office also stated that they did not consider ‘this in any sense a relevant issue to the matters in hand’. The Cabinet Office further contended that ‘of further relevance to transparency as to complaints is the publication of the correspondence of ACOBA, which satisfies the public interest’. The Commissioner considers that the Cabinet Office are fundamentally mistaken on both of these latter points. 78. Firstly, what action (if any) taken by the Prime Minister in response to the complaint about the Home Secretary has a key bearing on the public interest weight and value of the withheld information. If, for example, there was information in the public domain which recorded that the Prime Minister had considered the complaint made by Mr Trickett but was of the view that Ms Patel had not breached the Ministerial Code, then that information would at least show that a complaint which was clearly grounded on credible evidence, had been considered (even if rejected) by the Prime Minister. That is to say, there would be some degree of transparency and accountability which met the important public interest in knowing that such issues are treated with due weight and seriousness by Government (or the Prime Minister specifically in this case). As it is, the Commissioner is not aware that there is any such information in the public domain. 79. Secondly, and crucially, the Cabinet Office reference to the correspondence published by ACOBA and their contention that ‘much of the public interest in disclosure has been satisfied’ by this correspondence is plainly incorrect in this case, for a very simple reason. The letter published by ACOBA in respect of Ms Patel’s role at Viasat, is dated July 2019 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/821249/Priti_Patel_Viasat_letter.pdf . In their letter of advice, ACOBA applied three conditions to the appointment and asked Ms Patel to ‘inform us as soon as you take up this role’. However, unbeknownst to ACOBA at the time of their letter of advice, Ms Patel had already taken up the role at Viasat before she sought the Committee’s advice. That is to say, Ms Patel had made a retrospective application to ACOBA. 80. ACOBA’s Annual Report (2019 & 2020) states (at para 21) that ‘a retrospective application is one where an appointment or employment has been taken up or announced before the Committee has provided its full and final advice. This is a breach of the Government’s Rules’ https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/962428/ACOBA_Annual_Report_for_publication_2018-2020_final.pdf . The Reports goes on to state (para 23) that ‘there may be unusual or extenuating circumstances where the Committee may choose to consider the retrospective application. This will not be the norm. in these cases, the Committee will still make clear it is not acceptable to submit an application retrospectively’. 81. In FS50795901, concerning Mr Boris Johnson’s appointment as a columnist at The Telegraph, following his resignation as Foreign Secretary in July 2018, ACOBA, in a letter to Mr Johnson dated 8 August 2018 and published on their website, stated that they considered ‘it to be unacceptable that you signed a contract with The Telegraph and your appointment was announced before you had sought and obtained advice from the Committee, as was incumbent upon you on leaving office under the Government’s Business Appointment Rules’. In that case, the Commissioner found, in upholding section 36, that the public interest in transparency and accountability had been appropriately and proportionately met by ACOBA’s publishing of its letter to Mr Johnson. However, the Commissioner noted that had ACOBA not placed such information in the public domain, then the withheld information would have assumed a greater weight and significance. 82. By contrast, that case can be distinguished from the present case in which there has been no such transparency or accountability surrounding Ms Patel’s own apparent failure to abide by the Rules. ACOBA’s letter to Ms Patel of July 2019 does not criticise her for making a retrospective application because at the time that they provided their advice, they were clearly unaware that she had done so. It is concerning that the Cabinet Office should contend that the published correspondence from ACOBA satisfies much of the public interest in this case when it cannot possibly do so. 83. ACOBA state (para 24) in their Annual Report that it ‘deploys transparency to hold individuals to account, publishing the correspondence concerned. The Committee takes this approach in order to draw attention to the failure to submit an application and to encourage wider compliance with the Government’s Rules’. However, as noted, in respect of Ms Patel, there is no published correspondence from ACOBA holding her to account for her retrospective application. 84. Furthermore, the Commissioner considers that the public interest deficit in transparency and accountability in this case is increased. Firstly, there is no transparency (unlike in the aforementioned cases of Mr Osborne and Mr Johnson) in respect of Ms Patel’s apparent failure to abide by the Rules in respect of seeking advice from ACOBA. Secondly, there is also, as noted above, no information in the public domain in respect of any outcome of the complaint made by Mr Trickett about Ms Patel having allegedly breached the Ministerial Code, which is central to the complainant’s information request. 85. The Commissioner has had sight of the withheld information, which concerns the allegation that in taking up her role at Viasat before seeking advice from ACOBA https://publications.parliament.uk/pa/cm/cmregmem/190812/patel_priti.htm , Ms Patel was in breach of the Ministerial Code. The Commissioner entirely recognises and accepts that the information is sensitive and that in order to provide free and frank advice as to the appropriate response to allegations relating to the Code, officials require a safe space free from the external pressures exerted by the risk of public disclosure. 86. The Cabinet Office have contended that this safe space is ‘even more important given that allegations that Ministers, or former Ministers, have acted in breach of the standards of behaviour expected of them can cause significant reputational damage to Ministers, who are public figures, and to the Government’. The Commissioner would agree that unsubstantiated or baseless allegations about the conduct of Ministers or former Ministers, can cause significant reputational damage and it would be irresponsible and unfair to the individual Minister(s) concerned to disclose any information which would foster or encourage any such allegations. 87. However, as the Cabinet Office rightly note, Ministers are public figures, with huge influence and power on public policy and decisions that affect citizens’ everyday lives. The public rightly expect Ministers to behave in a manner which respects the rules and codes of conduct to which Ministers agree to follow and adhere to. Therefore, where evidence suggests that a Minister may not have followed or adhered to the BARs or the Ministerial Code, they should expect a certain degree of legitimate and necessary transparency and accountability in relation to their actions or conduct. 88. At the time of the complainant’s request, Ms Patel had returned to Government in her current position as Home Secretary, a position of significant responsibility, influence and decision making power that is publicly accountable. 89. In her resignation letter to Prime Minister May in November 2017, Ms Patel acknowledged that her actions (when in post of Secretary of State for International Development) ‘fell below the standards of transparency and openness that I have promoted and advocated’. The Commissioner considers this self assessment to be important and relevant in the present case, since the evidence suggests that Ms Patel was not entirely open and transparent with ACOBA about her role at Viasat (i.e. in approaching the Committee for their advice, she did not tell them that she had already taken on the Viasat role). 90. These incidents, and the bullying matter referenced above, tend to suggest an inconsistent approach to compliance by Ms Patel with the behavioural standards expected of Ministers. Importantly, this approach is founded on demonstrable facts and evidence, rather than rumour and speculation. 91. Whilst it is a matter for the Prime Minister of the day to decide whether a Minister has breached the Ministerial Code, there is an important and entirely legitimate public interest in transparency and accountability as to the outcome of any serious and credible complaints made against a serving Cabinet Minister, especially where, as here, there is a history of an inconsistent approach to compliance with the behavioural standards expected of Ministers by that Minister. 92. The Cabinet Office have contended that the chilling effect of disclosure is likely to be especially strong in this case, because the withheld information relates to the enquiries, deliberations and advice of officials in relation to allegations of misconduct against Ms Patel. As the Commissioner’s well established guidance on section 36 makes clear, civil servants and other public officials are expected to be impartial and robust when giving advice, and not easily deterred from expressing their views by the possibility of future disclosure. It is also possible that the threat of future disclosure could actually lead to better quality advice. Nonetheless, chilling effect arguments cannot be dismissed out of hand. Such arguments are likely to be most convincing where the issue in question is still live. 93. In this case whilst the Commissioner certainly does not discount the risk of a chilling effect and accepts that such arguments have relevance given the frank and candid nature of the withheld information, he is not minded to give such arguments substantial weight, for the following reasons. 94. Firstly, most of the officials who are named in the withheld information and whose exchanges comprise the same, occupied very senior roles at the time and had significant public profiles. The Commissioner considers that the individuals in question would therefore be expected to be robust when providing advice and not easily deterred by the possibility of such information being disclosed. Indeed, given their roles, the Commissioner considers that they should appreciate the need for maximum transparency and accountability in matters such as this. 95. Secondly, whilst the Cabinet Office have not been clear with the Commissioner as to whether the issue of Ms Patel’s alleged breach of the Rules was finalised or not, despite this factor clearly having a key bearing on the strength of the safe space arguments propounded, they have confirmed that they consider the issue to be live in the sense that Ms Patel remains a serving Minister and this has a direct impact on those providing the advice in this case as well as the future chilling effect. 96. The Commissioner is not persuaded that disclosure of the specific information in this case would have a significant chilling effect in future such cases. As the Cabinet Office is aware, the Commissioner considers each case on its own individual facts and circumstances, and the respective public interest arguments will necessarily differ from case to case. This case is exceptional and in most cases senior officials could have reasonable confidence that their advice and exchanges would not be publicly disclosed, and not whilst a matter was ‘live’. 97. In assessing the public interest balance in this case, the Commissioner has had due regard to the reasonable opinion of the qualified person, Ms Smith. The Commissioner entirely accepts that it is necessary for officials to be able to consider and discuss arguments as to whether the requirements of the Rules and the Code have been complied with in a free and frank manner. Such discussions facilitate the arriving at a position whereby informed advice can be provided to Ministers. 98. As previously noted, section 36 is primarily concerned with protecting the processes of advice and deliberation and ensuring that these are not inhibited. The Commissioner considers that there is a strong and important public interest in providing and protecting the safe space which allows officials to have such discussions and exchanges. Where information relates to discussions and exchanges about a particular issue that are still ongoing, the Commissioner also considers that public interest arguments as to the chilling effect will have weight and relevance. 99. In this particular case, the Commissioner considers that the content and sensitivity of the withheld information is the key factor which has a bearing on both sides of the respective public interest arguments. The Commissioner recognises that the content of the withheld information is frank and candid in nature, such that there are strong public interest grounds for protecting its confidentiality. Such is the strength of that public interest that the Commissioner considers that there would need to be a specific and compelling public interest factor for the public interest in maintaining the exemption to be outweighed. 100. The Cabinet Office have contended that there is no such compelling public interest factor in this case. The Commissioner strongly disagrees with this contention, for the following reasons. 101. In respect of the serious matter which underlies the complainant’s request, namely, the allegation that in failing to approach ACOBA for advice before taking up her role at Viasat, Ms Patel breached the Rules and therefore the Code, there has been, to date, no due transparency or accountability. There has been no published letter to Ms Patel from ACOBA, reprimanding her for her retrospective application, as there usually is in such cases. ACOBA’s letter to Ms Patel of July 2019 cannot, for the reasons explained, provide any such transparency or accountability. Furthermore, to the best of the Commissioner’s knowledge, there has been no public announcement or statement from the Cabinet Office as to the outcome/conclusion of the consideration of Mr Trickett’s complaint (as reported in the press) to the Prime Minister about Ms Patel having allegedly breached the Code. 102. In the absence of the usual ACOBA letter, or published statement from the Cabinet Office, there is no transparency or accountability in respect of a serious matter which clearly requires both. The Commissioner considers that this notable and unusual lack of transparency and accountability risks undermining public confidence in being assured that government handles such allegations in a robust and consistent manner and risks strengthening a possible public perception, created by the controversial outcome of the bullying inquiry, that the Home Secretary may be being protected from the consequences of her actions or behaviour. The Commissioner has expanded upon this in a Confidential Annex to this notice. 103. Having had sight of the withheld information, the Commissioner considers that its disclosure would provide the valuable transparency and accountability, that is currently missing (and shows no sign of being provided in future) in respect of the serious allegation made against Ms Patel in respect of her dealings with ACOBA regarding her previous Viasat role. It is important to be clear that reputational harm to ministers is not a relevant public interest argument/consideration in relation to section 36. 104. As previously noted, the Commissioner is not persuaded that the Cabinet Office arguments as to the future chilling effect have strong or realistic application to some of the individual officials named in the withheld information, given their senior and public facing roles. However, in respect of more junior and non-public facing officials named in the withheld information, the Commissioner considers that the risk of a future chilling effect, both upon them personally and with regard to departmental junior officials more widely, is a real and credible one, such that the public interest balance supports maintaining the exemption to their identities. The Commissioner has detailed in the Confidential Annex those names where he considers the public interest in disclosure of the names and positions outweighs the public interest in maintaining the exemption. The Commissioner notes that the Cabinet Office have not also applied section 40(2) to the individuals in question. 105. In conclusion, the Commissioner considers that the public interest arguments both for and against disclosure of the information in this case are strong and quite finely balanced. However, in the Commissioner’s view, what tips the balance decisively in favour of disclosure is the lack of public transparency and accountability in respect of the serious allegation made against Ms Patel, when seen in the relevant and important context of the two previous examples, referenced above, when the Home Secretary’s behaviour did not accord with the high standards and conduct required and expected of Ministers, albeit it is accepted that there was no formal finding of a breach of the Ministerial Code in either case. 106. The Commissioner is therefore satisfied that the exemptions at sections 36(2)(b)(i) and (ii) have been correctly applied by the Cabinet Office but that the public interest in the withheld information, with the exception of all names other than the three individuals listed in the Confidential Annex, favours disclosure. 107. As the Cabinet Office have not applied Section 40(2) to the three individuals listed in the Confidential Annex, and the Commissioner is satisfied that all other names are exempt under Section 36, the Commissioner has no need to consider the application of Section 40(2).”

“22. The tribunal was supplied with two versions of the Ministerial code, that approved by Mrs May and in force until August 2019 and that approved by Mr Johnson and in force after that date. While the foreword by the Prime Minister differs between the two (with Mrs May saying, "Parliament and Whitehall are special places in our democracy, but they are also places of work too, and exactly the same standards and norms should govern them as govern any other workplace. We need to establish a new culture of respect at the centre of our public life: one in which everyone can feel confident that they are working in a safe and secure environment" and Mr Johnson saying, "there must be no bullying and no harassment; no leaking; no breach of collective responsibility" and making explicit reference to the intention to leave the European Union and emphasising his policy imperative – "Crucially, there must be no delay - and no misuse of process or procedure by any individual Minister that would seek to stall the collective decisions necessary to deliver Brexit and secure the wider changes needed across our United Kingdom"), the operative provisions of the Code (which in both cases annexes the principles of Public Life and the Business Appointments Rules) appear to be the same. The code sets out the ten principles of Ministerial conduct and then provide for the central role of the Prime Minister: [1.1 Ministers of the Crown are expected to maintain high standards of behaviour and to beave in a way that upholds the highest standards of propriety(emphasis in the original)] 1.3… a. The principle of collective responsibility applies to all Government Ministers; b. Ministers have a duty to Parliament to account, and be held to account, for the policies, decisions and actions of their departments and agencies; c. It is of paramount importance that Ministers give accurate and truthful information to Parliament, correcting any inadvertent error at the earliest opportunity. Ministers who knowingly mislead Parliament will be expected to offer their resignation to the Prime Minister; d. Ministers should be as open as possible with Parliament and the public, refusing to provide information only when disclosure would not be in the public interest, which should be decided in accordance with the relevant statutes and the Freedom of Information Act 2000; e. Ministers should similarly require civil servants who give evidence before Parliamentary Committees on their behalf and under their direction to be as helpful as possible in providing accurate, truthful and full information in accordance with the duties and responsibilities of civil servants as set out in the Civil Service Code; f. Ministers must ensure that no conflict arises, or appears to arise, between their public duties and their private interests; g. Ministers should not accept any gift or hospitality which might, or might reasonably appear to, compromise their judgement or place them under an improper obligation; h. Ministers in the House of Commons must keep separate their roles as Minister and constituency Member; i. Ministers must not use government resources for Party political purposes; and j. Ministers must uphold the political impartiality of the Civil Service and not ask civil servants to act in any way which would conflict with the Civil Service Code asset out in the Constitutional Reform and Governance Act 2010. 1.4 It is not the role of the Cabinet Secretary or other officials to enforce the Code. If there is an allegation about a breach of the Code, and the Prime Minister, having consulted the Cabinet Secretary feels that it warrants further investigation, she will refer the matter to the independent adviser on Ministers’ interests. [1.5 The Code provides guidance to Ministers on how they should act and arrange their affairs in order to uphold these standards. It lists the principles which may apply in particular situations. It applies to all members of the Government and covers Parliamentary Private Secretaries in paragraphs 3.7–3.12. 1.6 Ministers are personally responsible for deciding how to act and conduct themselves in the light of the Code and for justifying their actions and conduct to Parliament and the public. However, Ministers only remain in office for so long as they retain the confidence of the Prime Minister. She is the ultimate judge of the standards of behaviour expected of a Minister and the appropriate consequences of a breach of those standards.” 23. The first annex sets out the principles of public life formulated under Lord Nolan's guidance at the request of the then Prime Minister in 1995: 1 Selflessness Holders of public office should act solely in terms of the public interest. 2 Integrity Holders of public office must avoid placing themselves under any obligation to people or organisations that might try inappropriately to influence them in their work. They should not act or take decisions in order to gain financial or other material benefits for themselves, their family, or their friends. They must declare and resolve any interests and relationships. 3 Objectivity Holders of public office must act and take decisions impartially, fairly and on merit, using the best evidence and without discrimination or bias. 4 Accountability Holders of public office are accountable to the public for their decisions and actions and must submit themselves to the scrutiny necessary to ensure this. 5 Openness Holders of public office should act and take decisions in an open and transparent manner. Information should not be withheld from the public unless there are clear and lawful reasons for so doing. 6 Honesty Holders of public office should be truthful. 7 Leadership Holders of public office should exhibit these principles in their own behaviour and treat others with respect. They should actively promote and robustly support the principles and challenge poor behaviour wherever it occurs. 24. The Civil Service Code issued under s7 of the Constitutional Reform and Governance Act 2010 requires civil servants to act with integrity, honesty, objectivity and impartiality and explains the importance of these values: "'integrity' is putting the obligations of public service above your own personal interests 'honesty' is being truthful and open 'objectivity' is basing your advice and decisions on rigorous analysis of the evidence 'impartiality' is acting solely according to the merits of the case and serving equally well governments of different political persuasions These core values support good government and ensure the achievement of the highest possible standards in all that the Civil Service does. This in turn helps the Civil Service to gain and retain the respect of ministers, Parliament, the public and its customers."” [1.1 Ministers of the Crown are expected to maintain high standards of behaviour and to beave in a way that upholds the highest standards of propriety(emphasis in the original)] 1.3… a. The principle of collective responsibility applies to all Government Ministers; b. Ministers have a duty to Parliament to account, and be held to account, for the policies, decisions and actions of their departments and agencies; c. It is of paramount importance that Ministers give accurate and truthful information to Parliament, correcting any inadvertent error at the earliest opportunity. Ministers who knowingly mislead Parliament will be expected to offer their resignation to the Prime Minister; d. Ministers should be as open as possible with Parliament and the public, refusing to provide information only when disclosure would not be in the public interest, which should be decided in accordance with the relevant statutes and the Freedom of Information Act 2000; e. Ministers should similarly require civil servants who give evidence before Parliamentary Committees on their behalf and under their direction to be as helpful as possible in providing accurate, truthful and full information in accordance with the duties and responsibilities of civil servants as set out in the Civil Service Code; f. Ministers must ensure that no conflict arises, or appears to arise, between their public duties and their private interests; g. Ministers should not accept any gift or hospitality which might, or might reasonably appear to, compromise their judgement or place them under an improper obligation; h. Ministers in the House of Commons must keep separate their roles as Minister and constituency Member; i. Ministers must not use government resources for Party political purposes; and j. Ministers must uphold the political impartiality of the Civil Service and not ask civil servants to act in any way which would conflict with the Civil Service Code asset out in the Constitutional Reform and Governance Act 2010. 1.4 It is not the role of the Cabinet Secretary or other officials to enforce the Code. If there is an allegation about a breach of the Code, and the Prime Minister, having consulted the Cabinet Secretary feels that it warrants further investigation, she will refer the matter to the independent adviser on Ministers’ interests. [1.5 The Code provides guidance to Ministers on how they should act and arrange their affairs in order to uphold these standards. It lists the principles which may apply in particular situations. It applies to all members of the Government and covers Parliamentary Private Secretaries in paragraphs 3.7–3.12. 1.6 Ministers are personally responsible for deciding how to act and conduct themselves in the light of the Code and for justifying their actions and conduct to Parliament and the public. However, Ministers only remain in office for so long as they retain the confidence of the Prime Minister. She is the ultimate judge of the standards of behaviour expected of a Minister and the appropriate consequences of a breach of those standards.” 1 Selflessness Holders of public office should act solely in terms of the public interest. 2 Integrity Holders of public office must avoid placing themselves under any obligation to people or organisations that might try inappropriately to influence them in their work. They should not act or take decisions in order to gain financial or other material benefits for themselves, their family, or their friends. They must declare and resolve any interests and relationships. 3 Objectivity Holders of public office must act and take decisions impartially, fairly and on merit, using the best evidence and without discrimination or bias. 4 Accountability Holders of public office are accountable to the public for their decisions and actions and must submit themselves to the scrutiny necessary to ensure this. 5 Openness Holders of public office should act and take decisions in an open and transparent manner. Information should not be withheld from the public unless there are clear and lawful reasons for so doing. 6 Honesty Holders of public office should be truthful. 7 Leadership Holders of public office should exhibit these principles in their own behaviour and treat others with respect. They should actively promote and robustly support the principles and challenge poor behaviour wherever it occurs. "'integrity' is putting the obligations of public service above your own personal interests 'honesty' is being truthful and open 'objectivity' is basing your advice and decisions on rigorous analysis of the evidence 'impartiality' is acting solely according to the merits of the case and serving equally well governments of different political persuasions These core values support good government and ensure the achievement of the highest possible standards in all that the Civil Service does. This in turn helps the Civil Service to gain and retain the respect of ministers, Parliament, the public and its customers."”

“On leaving office, Ministers will be prohibited from lobbying Government for two years. They must also seek advice from the independent Advisory Committee on Business Appointments (ACoBA) about any appointments or employment they wish to take up within two years of leaving office. Former Ministers must ensure that no new appointments are announced, or taken up, before the Committee has been able to provide its advice. To ensure that Ministers are fully aware of their future obligations in respect of outside appointments after leaving office, the Business Appointment Rules are attached at Annex B. Former Ministers must abide by the advice of the Committee which will be published by the Committee when a role is announced or taken up.”

“We accept that certain decisions — such as the decision to dismiss or retain a minister in office —would not be justiciable. We do not, however, accept the submission of the defendant that the sole purpose of the Ministerial Code is to determine the standards that ministers must meet in order to retain the confidence of the Prime Minister. The Ministerial Code prescribes the standards that ministers are expected to comply with. As it says in paragraphs 1.5 and 1.6 in the present version, it gives guidance to ministers on how they should act and arrange their affairs. Ministers are personally responsible for deciding how to act and how to conduct themselves in the light of the Ministerial Code and for justifying their actions including to the public. As such, the Ministerial Code does more than simply describe circumstances in which the Prime Minister may cease to have confidence in a minister. Indeed, while the fact that a minister only holds office if the Prime Minister continues to have confidence in him or her has always been the context in which the Prime Minister issued the Ministerial Code, it was only in 1997 that that fact was explicitly included in the way now provided for in the final sentence of paragraph 1.6 of the current version of the Ministerial Code.”

“3. The Committee will need to consider details of the proposed appointment or employment, which includes any proposal to undertake consultancy work. If necessary, the Committee will seek, in confidence, additional information from senior officials of a former Minister’s Department(s) about any contact with the prospective employer or its competitors and the nature of any contractual, regulatory or other relationships with them … With the former Minister’s permission, the Committee may wish to contact the proposed new employer for clarification of the proposed appointment or employment and notification of the conditions that will apply to it … 5. The Advisory Committee will consider each request for advice about an appointment or employment on its merits, against specific tests relating to the following: I. to what extent, if at all, has the former Minister been in a position which could lay him or her open to the suggestion that the appointment was in some way a reward for past favours? II. has the former Minister been in a position where he or she has had access to trade secrets of competitors, knowledge of unannounced Government policy or other sensitive information which could give his or her new employer an unfair or improper advantage? III. is there another specific reason why acceptance of the appointment or employment could give rise to public concern on propriety grounds directly related to his or her former Ministerial role? 6. The Advisory Committee will need to balance any points arising under these tests against the desirability of former Ministers being able to move into business or other areas of public life, and the need for them to be able to start a new career or resume a former one.”

“The business appointment rules for former Ministers seek to counter suspicion that: a) the decisions and statements of a serving Minister might be influenced by the hope or expectation of future employment with a particular firm or organisation; or b) an employer could make improper use of official information to which a former Minister has had access; or c) there may be cause for concern about the appointment in some other particular respect.”

“Retrospective applications will be unambiguously treated as breaches of the Rules.”

“21. A retrospective application is one where an appointment or employment has been taken up or announced before the Committee has provided its full and final advice. This is a breach of the Government’s Rules” (see, to the same effect, paragraphs 49-50 of ACOBA’s 2017-2018 Annual Report). 22. The Committee needs to be free to offer the most appropriate advice in any situation without the obvious constraints which occur (perceived or otherwise) if an appointment or employment has already been announced, or the applicant has already signed a contract or taken up the role. 23. There may be unusual or extenuating circumstances where the Committee may choose to consider the retrospective application. This will not be the norm. In these cases, the Committee will still make it clear it is not acceptable to submit an application retrospectively. 24. The Committee deploys transparency to hold individuals to account, publishing the correspondence concerned. The Committee takes this approach in order to draw attention to the failure to submit an application and to encourage wider compliance with the Government’s Rules. The Committee’s transparent approach leads to welcomed scrutiny by members of the public and the media who know to expect to see advice published on ACOBA’s website for taken up appointments. 25. Where the Committee has received a retrospective application, it will make it clear in its advice that retrospective cases will not be accepted and that a failure to seek advice is a breach of the Rules. It will also consider on a case by case basis how the public interest is best served. For example, the Committee may consider the risks presented on the face of the application to be so significant that it will provide full and final advice to ensure such risks do not go without consideration and mitigation.”

“… A degree of circumspection or caution does not however mean (and is not suggested in any of the authorities to mean) that this threshold can never be discharged (particularly given the low degree of likelihood required), nor that it cannot properly be discharged on the basis of evidence in writing setting out the basis of the view taken that such a chilling effect will occur, as occurred in this case.”

“the individuals in question would therefore be expected to be robust when providing advice and not easily deterred by the possibility of such information being disclosed”. (8). the Tribunal adopted other strands of reasoning which went beyond the ICO’s arguments, namely (a) the reference at [40] to “the unlawful prorogation of Parliament by the Prime Minister, a general election and the withdrawal from the EU” and (b) the suggestion at [41] that the qualified person’s opinion of 12 February 2020 (Oliver Dowden MP) was given on “a good day to bury bad news”

“It is clearly important that appropriate consideration should be given to the opinion of the qualified person at some point in the process of balancing competing public interests under section 36. No doubt the weight which is given to this consideration will reflect the Tribunal's own assessment of the matters to which the opinion relates.”

“In judging the likely consequences of disclosure on officials’ future conduct, we are entitled to expect of them the courage and independence that has been the hallmark of our civil servants since the Northcote-Trevelyan reforms. These are highly-educated and politically sophisticated public servants who well understand the importance of their impartial role as counsellors to ministers of conflicting convictions. The most senior officials are frequently identified before select committees, putting forward their department’s position, whether or not it is their own.”

“We are not persuaded that persons of the calibre required to add value to decision making of the type involved in this case by having robust discussions would be inhibited by the prospect of disclosure when the public interest balance came down in favour of it …”

“27. The lack of a right guaranteeing non-disclosure of information, absent consent, means that that information is at risk of disclosure in the overall public interest (i.e. when the public interest in disclosure outweighs the public interest in non-disclosure). As soon as this qualification is factored into the candour argument (or the relevant parts of the safe space or chilling effect arguments), it is immediately apparent that it highlights a weakness in it. This is because the argument cannot be founded on an expectation that the relevant communications will not be so disclosed. It follows that if he is properly informed, a person taking part in the discussions will appreciate that the greater the public interest in the disclosure of confidential, candid and frank exchanges, the more likely it is that they will be disclosed. … 28. … any properly informed person will know that information held by a public authority is at risk of disclosure in the public interest. 29. In my view, evidence or reasoning in support of the safe space or chilling effect argument in respect of a FOIA request that does not address in a properly reasoned, balanced and objective way: (i) this weakness, (ii) the public interest in there being disclosure of information at an appropriate time that shows that the robust exchanges relied on as being important to good decision making have taken place, and (iii) why persons whose views and participation in the relevant discussions would be discouraged from expressing them in promoting good decision making and administration and thereby ensuring that this is demonstrated both internally and when appropriate externally, is flawed.”

“[i]t is clearly important that appropriate consideration should be given to the opinion of the qualified person” and that “the weight which is given to this consideration will reflect the Tribunal's own assessment of the matters to which the opinion relates”

“Ministers of the Crown are expected to maintain high standards of behaviour and to behave in a way that upholds the highest standards of propriety”

“45. Having considered the content of the withheld information on the basis of this exemption, and taking into account the qualified person’s above opinion, the Commissioner is satisfied that both sections 36(2)(b)(i) and (ii) are engaged to the withheld information. However, in order for section 36(2)(c) to apply, the prejudice claimed must be different to that claimed under section 36(2)(b) (i.e. must ‘otherwise prejudice’) Evans v Information Commissioner and the Ministry of Defence (EA/2006/0064). . As the qualified person’s opinion has not identified what ‘other’ prejudice (i.e. other than that covered by section 36(2)(b)), would be caused by disclosure of the withheld information, the Commissioner does not consider that section 36(2)(c) is engaged in this matter. ... 59.

“It is necessary that officials are able to consider and discuss arguments as to whether the requirements set out in the Business Appointment Rules and the Ministerial Code have been complied with in a particular case in a free and frank manner. Such free and frank discussions allow them to come to a position so that they may provide advice to Ministers. This is important when discussions relate to a serving Minister. Disclosure, or fear of disclosure, of such conversations may deter officials from taking part in these deliberations frankly, which is likely to be harmful to the quality of such discussions. I am satisfied that there is a real risk that this is likely to happen.”

“Retrospective applications will be unambiguously treated as breaches of the Rules.”

“21. A retrospective application is one where an appointment or employment has been taken up or announced before the Committee has provided its full and final advice. This is a breach of the Government’s Rules” (see, to the same effect, paragraphs 49-50 of ACOBA’s 2017-2018 Annual Report). 22. The Committee needs to be free to offer the most appropriate advice in any situation without the obvious constraints which occur (perceived or otherwise) if an appointment or employment has already been announced, or the applicant has already signed a contract or taken up the role. 23. There may be unusual or extenuating circumstances where the Committee may choose to consider the retrospective application. This will not be the norm. In these cases, the Committee will still make it clear it is not acceptable to submit an application retrospectively. ... 25. Where the Committee has received a retrospective application, it will make it clear in its advice that retrospective cases will not be accepted and that a failure to seek advice is a breach of the Rules. It will also consider on a case by case basis how the public interest is best served. For example, the Committee may consider the risks presented on the face of the application to be so significant that it will provide full and final advice to ensure such risks do not go without consideration and mitigation.”

“As required of former ministers, Mr Osborne is seeking the advice of the Advisory Committee on Business Appointments on his appointment.”

“Q. And what I wanted to understand is whether you think that there are exceptional cases where information will be disclosed under FOIA or whether officials should have an absolute comfort that they’re going to have confidentiality in all cases? A. I don’t, I don’t accept that there should be an absolute right of confidentiality. FOIA exists for a purpose, it’s a noble purpose, and of course there is a balance always to strike between the public interest of disclosure, notwithstanding all the provisions of the Act, but then that does have to be balance against the public interest of not undermining certain aspects which would be brought about as a result of disclosure. Q. So, civil servants know that in certain cases their communications may be disclosed? A. Yes. I wouldn’t want you to go away with the impression that civil servants expect an absolute right of confidentiality in their work. Q. Yes. So, we can sort of debate what the standard is, but what you appear to be saying in your statement, and what you appear to be saying now, is that there will be exceptional or unique cases where disclosure should take place. Why, in your view, is this not an exceptional case where disclosure should take place? A. For the reasons I’ve set out in my witness statement; I feel that the, that it would have an impact on the effective conduct of public affairs. Officials are required, officials need a safe space to be able to provide free and frank advice to ministers. Now, all of this operates within the context of FOIA, obviously, but that’s why the exemptions are there, to protect certain functions, and then we need to strike the right balance between the public interest. Q. Right, so based on that answer, what you’re saying is that the exceptional cases are ones where disclosure wouldn’t result in any significant chilling effects; loss of candour, loss of a safe space. Is that an accurate representation of your position? A. Yes, I think so. Q. And, again, a hypothetical question; if the Tribunal here were to recognise in its judgment that the facts of this case were somehow unique or unusual or exceptional and ordered disclosure on that basis, how would that judgment, and the contents of that judgment, impact on your assessment of the risk of a chilling effect? A. On what basis would you say this case is exceptional, sorry? Q. Well, I think that’s a matter for submissions later and we’ll come on to that, but just assume, for sake of argument, the Tribunal says this case is unusual or exceptional and we’ve ordered disclosure, how would that impact civil servants; would they be at a lesser risk of a chilling effect or is the risk the same? A. The risk, the risk would exist, but we, we would seek, well, we would implement the judgment, but the risk would remain. Q. But would the risk be unchanged? A. I don’t see how the judgment would change the risk.”

“In judging the likely consequences of disclosure on officials’ future conduct, we are entitled to expect of them the courage and independence that has been the hallmark of our civil servants since the Northcote-Trevelyan reforms. These are highly educated and politically sophisticated public servants who well understand the importance of their impartial role as counsellors to ministers of conflicting convictions. The most senior officials are frequently identified before select committees, putting forward their department’s position, whether or not it is their own.” 26. Although not binding on us, this is an observation of obvious common sense with which we agree. A three-judge panel of the Upper Tribunal expressed a similar view in DEFRA v Information Commissioner and Badger Trust [2014] UKUT 526 (AAC) at [75], when concluding that it was not satisfied that disclosure would inhibit important discussions at a senior level: “75. We are not persuaded that persons of the calibre required to add value to decision making of the type involved in this case by having robust discussions would be inhibited by the prospect of disclosure when the public interest balance came down in favour of it … 76. … They and other organisations engage with, or must be assumed to have engaged with, public authorities in the full knowledge that Parliament has passed the FOIA and the Secretary of State has made the EIR. Participants in such boards cannot expect to be able to bend the rules.”” “In judging the likely consequences of disclosure on officials’ future conduct, we are entitled to expect of them the courage and independence that has been the hallmark of our civil servants since the Northcote-Trevelyan reforms. These are highly educated and politically sophisticated public servants who well understand the importance of their impartial role as counsellors to ministers of conflicting convictions. The most senior officials are frequently identified before select committees, putting forward their department’s position, whether or not it is their own.” “75. We are not persuaded that persons of the calibre required to add value to decision making of the type involved in this case by having robust discussions would be inhibited by the prospect of disclosure when the public interest balance came down in favour of it … 76. … They and other organisations engage with, or must be assumed to have engaged with, public authorities in the full knowledge that Parliament has passed the FOIA and the Secretary of State has made the EIR. Participants in such boards cannot expect to be able to bend the rules.””

“27. The lack of a right guaranteeing non-disclosure of information, absent consent, means that that information is at risk of disclosure in the overall public interest (i.e. when the public interest in disclosure outweighs the public interest in non-disclosure). As soon as this qualification is factored into the candour argument (or the relevant parts of the safe space or chilling effect arguments), it is immediately apparent that it highlights a weakness in it. This is because the argument cannot be founded on an expectation that the relevant communications will not be so disclosed. It follows that if he is properly informed, a person taking part in the discussions will appreciate that the greater the public interest in the disclosure of confidential, candid and frank exchanges, the more likely it is that they will be disclosed … 28. … any properly informed person will know that information held by a public authority is at risk of disclosure in the public interest. 29. In my view, evidence or reasoning in support of the safe space or chilling effect argument in respect of a FOIA request that does not address in a properly reasoned, balanced and objective way: (i) this weakness, (ii) the public interest in there being disclosure of information at an appropriate time that shows that the robust exchanges relied on as being important to good decision making have taken place, and (iii) why persons whose views and participation in the relevant discussions would be discouraged from expressing them in promoting good decision making and administration and thereby ensuring that this is demonstrated both internally and when appropriate externally, is flawed.”

“It is clearly important that appropriate consideration should be given to the opinion of the qualified person at some point in the process of balancing competing public interests under section 36. No doubt the weight which is given to this consideration will reflect the Tribunal's own assessment of the matters to which the opinion relates.”