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When the Labour Party won its landslide victory at the UK General Election of 1997, it did so on a manifesto that included a pledge to introduce a Freedom of Information Act (FOIA) and more "open government". The government's original White Paper on the subject which appeared in 1998 suggested that the Parliament itself would be exempt from its requirements, but when the bill was put before the House of Commons it had been decided to extend the coverage of the legislation to include the "operational activities" of Parliament. However although the Freedom of Information Act was passed in 2000, it was subject to an unusually long transitional period and it wasn't until the 1st January 2005 that its provisions came fully into effect.

In common with the elected representatives of other nations, British Members of the House of Commons not only received a salary, but were also paid a number of expense allowances that reimbursed them for the additional costs they incurred in performing their duties. Naturally, there was a certain amount of curiosity as to who got paid what, and equally naturally it was appreciated that one of the effects of the FOIA would be that the authorities would have to disclose more information regarding the who and the what they had received.

As far as the House of Commons was concerned, or more specifically the House of Commons Commission which was chaired by the Speaker of the House of Commons and ran the administration, whatever obligations the Commons had under the FOIA as regards the transparency of MP's expenses would be fulfilled by their decision to begin publishing details of Members' expenses. Thus on the 21st October 2004 the House of Commons duly published details of the amounts paid to MPs over the past four years on the parliamentary website. However all that was disclosed were the totals paid out in respect of certain broad categories relating to the amounts claimed under the headings of the Additional Costs Allowance, office expenses, travel etc. As a result there were many who felt that this disclosure was insufficient and believed that the public had a right to know exactly what their elected representatives had been spending their money on.

One of those individuals was a journalist for the Sunday Telegraph named Ben Leapman, who was later to recall a conversation he once had with John Wilkinson, who was at the time the Conservative member for Ruislip-Northwood. Specifically Leapman wanted to know why Wilkinson was claiming £14,000 for a 'second home' when his constituency was only seventeen miles away from Westminster. It turned out that Wilkinson's 'main home' was a "seaside flat" on the Isle of Man, allowing him to claim the cost of his London home on expenses. When asked whether he believed it was right for taxpayers to fund this lifestyle choice, Wilkinson's response was simply to say "It has always been a provision of the House of Commons that it should be so".

As it turned out Wilkinson was wrong, it had only been a provision in the House of Commons since 1971 that it "should be so", but his statement nevertheless highlighted the dismissive attitude that many MPs had to questions regarding their expense allowances, an attitude which, of course, only served to fuel the curiosity about exactly what MPs might be trying to hide. In particular, the focus of curiosity tended to be on what claims MPs had made under the Additional Costs Allowance, which was intended to fund the cost of running a second home, as this appeared to offer the most potential avenue for abuse, Indeed the case of the unfortunate Michael Trend already suggested that there might be other scandals locked away in the expenses files, and the key to unlocking the truth appeared to be the Freedom of Information Act 2000.

The Information Commissioner

Almost as soon as the FOIA came into effect on the 1st January 2005, the aforementioned Ben Leapman together with a Sunday Times reporter named Jonathan Ungoed-Thomas both made separate requests under the FOIA for the disclosure of the detail of the Additional Costs Allowance paid in respect of certain specified Members of Parliament. All these requests were made to the House of Commons Commission (HOCC), since that was the public authority subject to FOIA. The HOCC refused to disclose the information and so in April 2005 they both applied to the Information Commissioner's Office.

On the 9th September 2005 the Information Commissioner wrote to the House of Commons requesting that they provide him with access to the disputed information which it held, and was ultimately obliged to issue a formal information notice on the 6th June 2006 that required the House to make it available. This was complied with in July 2006, by which time a freedom of information campaigner and freelance journalist named Heather Brooke had also joined in with her own request for a detailed breakdown of the Additional Costs Allowance paid to another fourteen named MPs.

At this point in time, all that happened was that the Information Commissioner had obtained details of the requested information in order to reach a decision about whether it should be released or not. It took some time for the Commissioner to evaluate the data, and he eventually sought to establish a compromise which would have required the House of Commons to have produced a more detailed analysis of the ACA figures by category, without requiring the publication of receipts, which formed the basis of the decision notices that were issued on the 13th June 2007. However neither side in the dispute were satisfied by this compromise and both therefore appealed the decision to the Information Tribunal, who after holding a hearing, duly issued their determination on the 26th February 2008.

As it was they weren't the only people who wanted answers, as by the end of 2006 the House of Commons had received 167 requests for information on members' allowances. Indeed by this time the Information Tribunal had already issued a decision on two applications for information on allowances on the 16th January 2007. This decision related to applications made by Norman Baker MP and the Sunday Times and related to the details of MPs' travel allowances. The House of Commons subsequently complied with this Information Tribunal decision and released details of MPs' travel allowances from 2001-2002 onwards on the 16th February 2007. However the House seemed rather more reluctant to release the details of amounts paid under the ACA, ostensibly because publication would breach members' rights to privacy; although the cynics argued that the real reason was that there was more to hide.

Nevertheless the hearing conducted by the Information Tribunal in early 2008, together with its subsequent ruling, were interesting for a number of reasons, principally because of the detail that was provided regarding the operation of the Additional Costs Allowance (ACA). It turned out that the payment of expenses to Members of Parliament were governed by a set of rules contained in what was known as the Green Book, although as it turned out the Green Book said very little about submitting claims for the ACA. Whilst it might have been understandable that no definitive statement of the rules for ACA had been made available to the public, it was something of surprise to discover that MPs themselves were also kept in the dark. It seemed that the ACA was operated in accordance with what was referred to as a set of "desk instructions", precedence, and (most significantly) "a confidential list indicating acceptable costs for certain classes of item based on prices derived from the John Lewis website", and that this 'John Lewis List' was "kept secret from Members lest the maximum allowable prices become the going rate. Members are not trusted to have access to it". It also came to light that whilst a receipt was always required in respect of hotel expenditure, in all other cases no receipt was required for any expenditure of less than £250, or indeed for any amount in the case of food.

What was more telling however, was what the Information Tribunal had to say about the system in general, which was that the "laxity of and lack of clarity in the rules for ACA is redolent of a culture very different from that which exists in the commercial sphere or in most other public sector organisations today". Specifically it noted that Members of Parliament were expected to police their own expenditure and, as the Tribunal noted, even if self-certification could be regarded as an acceptable system, "the inadequacy of that approach is manifest as soon as it is appreciated that the Members upon whom the responsibility of certification is placed do not have access to a clear, coherent and comprehensive statement of their entitlements such as might enable them to fulfil that responsibility". The Tribunal therefore concluded that "in relation to the public interest that public money should be, and be seen to be, properly spent, the ACA system is deeply unsatisfactory, and the shortfall both in transparency and in accountability is acute".

The Information Tribunal therefore ordered the full detailed disclosure of the amounts paid to MPs under the ACA, with certain exceptions covering "sensitive personal data" and any "information that would prejudice the personal security of MPs".

The High Court

Of course, the HOCC wasn't happy to have lost its case before the Tribunal and so decided to appeal to the High Court on the grounds that publication would constitute "a substantial unlawful intrusion" into lives of MPs and their families, and that MPs had a "reasonable expectation" that full details of their claims would not be published. It also had a particular objection to the disclosure of MPs' home addresses for some reason, despite the fact that the ballot papers issued at each General Election carried the home address of every candidate, and knowing the location of any other home was one of the pieces of information that might have been regarded as crucial to judging any claim they might have made under the ACA. In any event the HOCC decided to appeal the Information Tribunal's decision and so the case came before the High Court.

As it was, the High Court was fairly unequivocal in its decision. It was noted that "the Tribunal found that the ACA system was deeply unsatisfactory, and its shortcomings both in terms of transparency and accountability were acute" and that those findings were "not open to challenge in this appeal". And since the system was flawed, it would be unreasonable for MPs to expect anything other than full disclosure, given that there was evidence which suggested that "one MP claimed ACA for a property which did not exist" and further evidence that "on occasions MPs claiming ACA were letting out the accommodation procured from the ACA allowance". As the High Court put it; "We have no doubt that the public interest is at stake. We are not here dealing with idle gossip, or public curiosity about what in truth are trivialities. The expenditure of public money through the payment of MPs' salaries and allowances is a matter of direct and reasonable interest to taxpayers." Or in summary, it fully endorsed the decision reached by the Information Tribunal and dismissed the appeal. In fact the High Court went one further than the Tribunal and ordered that MPs' addresses should be disclosed unless there was good reason not to.

The House of Commons had until the 20th May to contest the judgement. Initially the Speaker, Michael Martin, indicated that it would indeed do so, although in the end the Members' Estimates Committee decided not to appeal the ruling. And faced with the decision of the High Court, the House of Commons Commission was obliged to release the information regarding those MPs that had been requested on the 23rd May, and subsequently decided on the 23rd June 2008 that they would now publish the full details of all MPs' expenses.

The Stationery Office would be employed to "scan documents and carry out initial editing work" after which Commons staff would perform the "final editing". This final editing was required because the decision was made to publish "copies of redacted claims and receipts"; that is, certain information such as MPs addresses would be 'blacked out' to prevent it from becoming public knowledge. This was in direct contravention of the recent High Court decision but, as was so often the case, the House of Commons possessed the ultimate 'get out of jail free card' as on the 3rd July 2008 Harriet Harman announced that the Government would use its executive powers to change the law to legalise the withholding of addresses. Statutory Instrument 1967 was duly brought before Parliament on the 22nd July 2008 to amend the Freedom of Information Act and introduce an exemption in respect of MPs' home addresses, the details of their travel arrangements, and other information regarding which businesses or tradesmen had provided the goods or services that MPs were claiming for.

Conclusion

Nevertheless the trio of campaigners had won their case and successfully used the Freedom of Information Act to force the House of Commons to disclose detailed information regarding MPs' expenses. And once they'd won the case and established the principle, the House of Commons had no alternative other than to order the wholesale publication of the information in respect of every Member of Parliament, rather than face a torrent of individual requests.


NOTES

Technically speaking the House of Commons Commission (HOCC) was not responsible for expenditure on MPs' salaries, pensions and allowances, this was rather the responsibilty of the Members Estimate Committee (MEC). However the MEC and the HOCC had exactly the same membership and both were chaired by the Speaker, and hence it was simply a case of the same people wearing different hats. Whereas it is therefore easy to confuse the MEC and the HOCC, it also really doesn't matter.

The Stationery Office being what was once known as Her Majesty's Stationery Office (HMSO) until it was privatised on the 1st October 1996 and is now part of the Williams Lea group, a "global business process outsourcing company", specialising in "corporate information solutions".


SOURCES

  • Information Tribunal Decision Promulgated 26 February 2008
    http://www.informationtribunal.gov.uk/DBFiles/Decision/i85/HoC3.pdf
  • Approved Judgment, Case No: CO2888/2008 Royal Courts of Justice, 16/05/2008
    http://www.judiciary.gov.uk/docs/judgments_guidance/judgment_additional_costs_allowance.pdf
  • Deborah Summers, MPs must disclose expenses, High Court rules, The Guardian, 16 May 2008
    http://www.guardian.co.uk/politics/2008/may/16/houseofcommons
  • David Hencke and Clare Dyer, High court orders MPs to reveal their expenses, The Guardian, 17 May 2008
    http://www.guardian.co.uk/politics/2008/may/17/houseofcommons.michaelmartin
  • Ben Leapman, My four-year battle for the truth over MPs' expenses, Daily Telegraph, 10 May 2009
    http://www.telegraph.co.uk/news/newstopics/mps-expenses/5301739/Ben-Leapman-My-four-year-battle-for-the-truth-over-MPs-expenses.html
  • Ben Leapman, When will MPs come clean about their expenses?, Daily Telegraph, 18 Jun 2009
    http://www.telegraph.co.uk/news/newstopics/mps-expenses/5571738/When-will-MPs-come-clean-about-their-expenses.html

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