08.05.09 Look
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Parliament was planning to continue to defy demands
for full details of MPs’ expenses even when it was finally going to
release receipts in July.
Its plans were wrecked after The Daily Telegraph today began
publishing details taken from a CD apparently containing all the unredacted
receipts supporting claims under the ‘additional costs allowance’
(ACA) made by MPs over the past five years, including the cost of second homes.
Last year, the high court ordered
parliament to release details of all such expenses claims, dismissing an appeal
against an order to disclose made by the information tribunal.
The tribunal had in turn dismissed an appeal by the commons against
a decision by the information commissioner that a breakdown of the total annual
amounts claimed by each MP for accommodation allowances should be released.
But the tribunal substituted that decision for one that ordered disclosure
of specific claims and supporting documentation.
This represented another lost appeal by the house of commons against
orders to disclose various details of MPs’ expenses in response to requests
under the freedom of information act (FOIA). Requests for details of MPs’
expenses were made by journalists, FOIA campaigners, the FOIA Centre and even
at least one MP.
The high court specifically rejected parliament’s argument that
disclosure, in particular of MPs’ home addresses, would breach their
privacy.
The information tribunal had previously ruled that it was inappropriate
to redact MPs’ addresses. The tribunal was so convinced that the ACA
system was deeply flawed that it ordered full disclosure, including the addresses
to which the ACA forms applied.
It noted that the addresses of well-known MPs were already available,
and that such details are made public for all prospective MPs as soon as they
register as candidates. Given that at least one address of an MP would be
in the public domain anyway, there would not “ordinarily be a sufficient
reason for keeping a further address confidential, particularly when scrutiny
of the identity of second homes is part of the reason for disclosure of the
information under consideration.”
It made an exception for “details relating to the security measures
at MPs’ homes (whether goods or services) save that where an amount
has been identified by the MP as relating to security, that reference and
the total amount attributed to it shall not be redacted.”
It added: “Where a particular MP has a special security reason
for keeping the address of his or her main or second home confidential (for
example, because of a problem with a stalker, or a terrorist or other criminal
threat), that address may be redacted.”
The commons told the high court that the tribun-al’s conclusion
on the need to disclose addresses was flawed, saying that it represented an
intrusion into a “core” issue of privacy and that it was neither
proportionate nor necessary.
However, in its ruling in May 2008, the high court said: “The
strength of the tribunal's reasoning de-pended on its overall conclusions
about the many deficiencies in the ACA scheme, which was exclusively concerned
with accommodation arrangements.
“Having closely examined the privacy issue, not only as it related
to the MPs claiming ACA, but also to anyone living with them, the tribunal
concluded that ‘the ACA system is so deeply flawed, the shortfall in
accountability is so substantial, and the necessity of full disclosure so
convincingly established, that only the most pressing privacy needs should
in our view be permitted to prevail.’
“It may be that the system will be revised, and subject to much
more robust checking to ensure, for example, that the addresses to which ACA
relates do in fact exist, and that the claims for them are within the scheme
and not excessive. If so, the case for specific disclosure of such addresses
may be rather less powerful. As it seems to us, all the necessary elements
to the decision-making process were properly recognised and carefully balanced
by the tribunal.”
It added: “None of this is intended to suggest that the disclosure
of an individual's private address under FOIA does not require justification.
In the present case, however, there was a legitimate public interest well
capable of providing such justification. Thus, for example, there is evidence
which suggests that one MP claimed ACA for a property that did not exist,
and yet further evidence may demonstrate that on occasions MPs claiming ACA
were letting out the accommodation procured from the ACA allowance.”
The house of commons was planning to release MPs’ expenses claims,
including receipts, in July after redacting some details. The commons intended,
for example, to redact details of MPs’ addresses.
Harriet Harman, leader of the house of commons and deputy leader of
the Labour party, gave the clear impression in one interview that the redactions
would have gone further than the exceptions provided for by the information
tribunal.
She told Channel 4 News: “The public were entitled to
more detail than we published, so they could see year by year, and compare
different MPs of how much they are spending and what they are spending it
on.
“But I do defend what we did, that we should not publish MPs'
home addresses, because MPs that live with their families, who live with their
children - it should not be the case that that should be in the public domain.
“A local head teacher should not have to have their home address
put in the public domain, the local commander of the borough police should
not have their address put in the public domain.
“The fact that my address was in the public domain meant that
I had Fathers4Justice on my roof. If people have got homes to live in - I
stand by the right to say we do not publish addresses.”
Politicians have been critical of the fact that the CD sold to The
Daily Telegraph contained unredact-ed expenses claims, including all
the addresses. But the newspaper was able to reveal the practice of “flipping”,
under which MPs changed the designation of their “second” home
in order to claim for expenditure at two properties, only because it had bought
unredacted details of expenses, including all the addresses.
How would the commons have been able to redact details of MPs’
addresses when it finally published the expenses?
The government, in a little-noticed move after the high court ruling,
changed the law specifically to block the disclosure of MPs’ addresses
under FOIA.
Although further attempts in the commons since the ruling to exempt
MPs from FOIA ultimately failed, Jack Straw, justice secretary, introduced
a statutory instrument last July that put details held by the house of commons,
house of lords or the welsh assembly of any residential address of members
of those assemblies completely outside the scope of FOIA.
Any information held by those assemblies on members’ regular
or future travel arrangements, or any material relating to the identity of
anyone who has provided goods or services to a member at a residence of the
member, or anything relating to expenditure by a member on security arrangements,
was also put outside the scope of FOIA under the order.
This change to the law, “the freedom of information (parliament
and national assembly for Wales) order 2008”, also meant that the appeal
mechanisms under FOIA did not apply to any of this information.
FOIA
Centre commentary
For anyone whose interest is to uncover the truth and hold people in positions
of power to account, FOIA has proved to be crucial. The case of the scandal
of MPs’ expenses starkly demonstrates what can be uncovered with the
help of FOIA.
However, we have to observe that none of us who used FOIA to loosen
the earth around the rock from under which many MPs are currently crawling
made the seismic discoveries that have so shocked the public. That honour
has gone to The Daily Tele-graph, which secured the deal with a bit of old-fashioned
cheque-book book journalism.
Indeed many of the MPs’ misdemeanours would have remained hidden
even after the publication by the commons – forced by FOIA – of
MPs’ expenses. The appeal mechanism under FOIA, including the high court,
ultimately ruled in favour of openness. But MPs, backed up by the government,
did not want the law that “applies to all” to apply to them.
And so, two months after the high court observed that it would be “inconceivable”
that MPs could expect to be above the law, the government changed the law
in such a way that would maintain some of the cover-up of their activities.
A CD apparently containing all the MPs' expenses under the ‘additional
costs allowance’ since 2004 was offered for sale to several newspapers.
It was reportedly offered to The Times for £300,000, while the Sunday
Express took from it details of a claim made by the husband of Jacqui Smith,
the home secretary, for the cost of watching two porn videos. Newspaper reports
say that the Sunday Express subsequently refused to pay for its scoop.
Well-placed sources have revealed that the CD was then offered to The
Sun, but the price demanded had dropped sharply to £30,000 for the highlights.
The Sun decided that this figure was too high. We find this a curious piece
of news judgement.
The CD was then offered to The Daily Telegraph. Well-placed sources
say that The Daily Telegraph only needed to pay a maximum of £110,000
for the CD, much lower than the figures speculated by rival newspapers. The
sources also indicate that the seller insisted that The Daily Telegraph pay
up front – a wise move.
The Daily Telegraph has played an important public service in publishing
the details, and it will reap the commercial rewards – and a clutch
of journalistic awards.
This case demonstrates the need for an overhaul of FOIA to make it
more effective at holding those in power to account. This should be top of
the shopping list for any constitutional changes in the UK to usher in a political
revolution.
Although FOIA did not on its own lift the lid on this scandal, it provided
the crowbar and someone else supplied the fingers to remove it completely.
But no one interested in uncovering information that ought to be in the public
domain can be in any doubt about the value of FOIA.
Comment on this article
High court orders release of MPs’
expenses
MPs’
travel expenses revealed after long battle
Parliament
loses appeal over MPs’ travel exes
Commons told to release MPs’ travel
expenses
Comments
on MPs’ expenses (1)
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