Relight My FOIA

Turn your minds back to the late Sunak era, and you might remember a story about his declarations of interests.

He was given a ticking off by the parliamentary commissioner for standards, after he had not declared his wife’s shareholding in a childcare company which would benefit from a government policy to pay incentives to childminders entering the sector.

This breach was ruled inadvertent by the commissioner.

The issue came in part because not everything that is disclosed on the ministers list of interests is disclosed on the MPs register of interests.

Under current rules, ministers must declare anything that could potentially be a conflict to their department.

It is then up to the PM’s independent adviser on ministers’ interests to determine what parts of these declarations should be disclosed publicly in the register of ministers interests.

However, it doesn’t take a genius to see what issues there are with this system. Despite being called “independent”, the advisor is ultimately a political appointee.

There are also not the same kind of mechanisms to point out and correct issues with disclosures on the ministerial list, in the same way as there is for its parliamentary equivalent.

Key ministerial conflicts might be withheld simply because a civil servant in the advisor’ office does not realise its wider importance.

I thought this ripe ground for an FOI, to see if there were other of Sunak’s interests that, while fully declared to the Cabinet Office, had not been judged by officials to be worthy of public disclosure, when the wider public might disagree.

I first made the request in April last year. Perhaps predictably, the Cabinet Office prevaricated and refused the request, before I appealed this to the Information Commissioner’s Office (ICO) in August 2023.

And that is where the complaint has remained stuck since.

While I often challenge the ICO to be far more aggressive in its use of statutory powers, given the obstructiveness I experience with some departments, in this case to be fair to it there’s not much it can do.

Why? Because the Cabinet Office has taken legal action against ICO to prevent it even seeing the information I asked for, at considerable taxpayer expense.

In the normal run of things, if someone asks for information and a government body disputes that it should be released, when a complaint to the ICO is made it will receive a copy of the disputed information and make an independent ruling on whether it should be released.

Despite repeated requests from the ICO for a copy of Sunak’s declarations, The Cabinet Office flatly refused to provide it with a copy.

The ICO in the end, issued it with a formal information notice, requiring it to disclose the document. Normally at that point, the public authority caves and provides the record.

Not this time. The Cabinet Office took the extraordinary, and costly, step of appointing a KC and challenging the validity information notice in court.

These challenges are extremely rare, as there are usually no sustainable grounds for the ICO not to be given sight of material. I am still awaiting the outcome of the hearing.

The filings show some of the approach the Cabinet Office takes with these kinds of transparency cases.

It argued that the declaration form is highly sensitive because it contains “personal data about both the prime minister and the prime minister’s family members”, including “personal financial information about his spouse.”

It further argues that giving the ICO a copy of the document would be a security risk, despite the agency having security cleared staff trained specifically to handle such sensitive material.

Simon Madden, Director of Propriety and Ethics in the Cabinet Office, described the ICO’s decision to take formal action against it as “a bit of a surprise to be honest, and an escalation” despite the department having failed to provide the document to the ICO for months.

The grounds of appeal show that the Cabinet Office’s head propriety and ethics, Darren Tierney, met John Edwards, the Information Commissioner personally to discuss the matter on 14th February this year.

The Cabinet Office even tried to keep the fact it was trying to challenge the information notice from the public domain.

It argued that I should not be told about its legal action because, amongst other matters, “the applicant is a journalist, meaning the contents of the grounds of appeal are highly likely to be made public at pace if they are shared with him.”

The judge disagreed, and shared a copy of the grounds with me.

The months of delays that resulted from this legal action has had the practical effect that no new information about Sunak’s interests was disclosed before the general election, when it might have been of most news value and impact, and no decision is likely to be reached for many months more.

This is despite the request being made more than a year prior.

A Cabinet Office press officer, when questioned, denied that the decision to launch the appeal was linked to the upcoming general election.

In any case, departments who wish to drag out information cases for longer have a tool to do so, as long as they don’t mind you and me paying for the privilege.

Image credit: Andrew Parsons / No 10 Downing Street