Ranger v The House of Lords Appointments Commission

Dr Raminder Ranger is described in the evidence as the founder and chairman of one of the UK’s most successful export companies. His businesses have received The Queen’s Awards for Enterprise in connection with their international trade. He has received the honour of the award of MBE for his services to business and to the British Asian community. He has received many other awards.

It is not challenged that Dr Ranger has devoted substantial time and effort to the fostering of community relationships within the UK. He is or has been the Chairman of the British Sikh Association, the Chairman of the Pakistan, India and UK Friendship Forum, and a patron of a number of charitable bodies. His background is not free of politics; he was a founder member of British Asian Conservative Link.

In 2007 and in 2010 Dr Ranger put his own name forward for consideration for appointment to the House of Lords as a non-party-political life peer. He did so because he wanted to contribute more to British public life, and to do so by service in the House of Lords. On these two occasions (and on one later occasion) Dr Ranger was unsuccessful.

Dr Ranger does not challenge the outcome. However by these proceedings, brought to trial as a Part 8 claim, he seeks disclosure of two unsolicited letters sent to the House of Lords Appointments Commission (“the Commission”) by a third party or third parties in relation to the consideration of his appointment. He is content that the identity of the authors of the letters not be revealed to him. He also seeks data or information produced by the Commission relating to that consideration. His claim is opposed by the Commission.

The power to confer a peerage for life, with the entitlement to sit and vote in the House of Lords, is vested in Her Majesty the Queen. Her Majesty exercises the power by letters patent.

The peerage entitles the person on whom it is conferred to rank as a Baron under such style as may be appointed by the letters patent.

These and other matters are provided by section 1 of the Life Peerages Act 1958.

The Commission is not a statutory body. It was established in 2000. It currently has seven members, four who are independent of political parties and three who are nominated by political parties.

Its responsibilities include making recommendations for appointment to the House of Lords from among the individuals nominated for what have been termed non-party-political peerages. The Commission publishes the criteria it uses to make this assessment and sets out, in the interests of openness and transparency, how the process is conducted. Ms Clare Salters, Secretary to the Commission, adds in evidence that “at times the Commission also considers whether a nominee’s field of expertise would fill a recognised gap in expertise in the House of Lords, if appointed”.

The Commission receives very many high quality nominations. However it is invited to make only a small number of recommendations. This was usually around six each year according to correspondence in 2010. Paragraph 23 of current guidance notes, exhibited to the witness statement of Ms Salters, states that the Prime Minister “has said that for the time being he would like the Commission to recommend no more than two individuals for appointment over the course of a year”. Ms Salters says in her evidence that 63 appointments in total have resulted over the 14 years since 2000, from more than 4,881 nominations.

The Commission’s recommendations are submitted to the Prime Minister. They will inform the advice that the Prime Minister gives to Her Majesty, in whom the power of appointment is vested. The guidance notes state at paragraph 4 that the Commission makes its recommendations “to Her Majesty the Queen, via the Prime Minister” and that the Prime Minister “has undertaken to pass the Commission’s recommendations directly to The Queen and will only intervene in the most exceptional cases.”

It would be difficult to overstate the importance of what is involved. The arrangements reflect the constitutional convention that the monarch will act on ministerial advice. In this instance the outcome of the exercise of the power affects the composition of a branch of the legislature. Even though the number of appointees is modest they bring one of the non-party-political dimensions to the composition of that branch of the legislature, and contribute to the breadth of its experience and expertise.

Dr Ranger argues first that section 7 of the Data Protection Act 1998 (“the DPA”) gives him the entitlement claimed.

In addressing this argument I will assume for the sake of the argument that the information he seeks is “personal data”, though there is considerable room to question that as regards at least some of what he seeks, and in particular copies of the letters, (see Durant v Financial Services Authority [2004] FSR 573; [2003] EWCA Civ 1746 at [27] (per Auld LJ) and note In re Southern Pacific Personal Loans Ltd [2014] Ch 426; [2013] EWHC 2485 (Ch) at [46] (per David Richards J)).

By section 37 of the DPA, Schedule 7 of that statute has effect. Schedule 7 contains a number of exemptions. Paragraph 3 of Schedule 7 is in these terms, following amendment in 2000:

“Personal data processed for the purposes of—

(a)

assessing any person’s suitability for judicial office or the office of Queen’s Counsel, or

(b)

the conferring by the Crown of any honour or dignity,

are exempt from the subject information provisions.”

As a matter of ordinary language the conferring of a life peerage would in my judgment be the conferring of “an honour or dignity”. Other descriptions might be chosen or, in some contexts, preferred. In oral submissions Dr Sampson argued that a life peerage is “not simply an honour and a dignity but a public office in its own right”. Even if that submission is accepted, as well it might be, the peerage is, on the face of the submission, nonetheless an honour and a dignity.

Dr Sampson makes the point that if reference to a peerage had been intended then it would have been easy for the legislation to use the term itself. In my judgment the answer to the point is simply that paragraph 3(b) is seeking to deal concisely with a number of things by using the overall description “any honour or dignity”.

I do not see any different meaning is achieved by reading the language restrictively, as Dr Sampson urged, even if it was appropriate to do so. I do not regard the language as ambiguous or uncertain. However if I am wrong in that judgment, the argument would still be concluded against Dr Ranger by reference to Hansard. There can be no question that the rule in Pepper v Hart [1993] AC 593 would render Hansard admissible in the context of an ambiguity.

Hansard records that in the course of debate in the House of Lords on 24 October 2000 Lord Falconer of Thoroton, then Minister for the Cabinet Office, stated expressly that the words “or dignity” were proposed to be added to paragraph 3(b) by amendment to ensure “that the exemption applies to the granting of peerages” (HL Debs, 24 October 2000, col. 314).

By section 37 of the Freedom of Information Act 2000 (“the FOIA”), information relating to the conferring by the Crown of any honour or dignity is “exempt information”. However by section 2 of the FOIA, for the purposes of section 2 the exemption is not one of those to be regarded as conferring absolute exemption. As a result, by section 2(2)(b), section 1(1)(b) (providing for a right to have information communicated) does not apply if in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

There is no similar provision qualifying the exemption provided by the DPA. Dr Sampson submits that a like qualification is to be implied so as to displace the exemption provided by the DPA where the public interest so requires. He supports the submission with the argument that it is “simply not possible to accept that it was intended that a third-party could have better rights of access to information about an applicant’s application to [the Commission] under a … FOI[A] request than the data subject has under the terms of an application made under the DPA for exactly the same information”.

I cannot accept this argument. Each piece of legislation must be applied as enacted. If more needed to be said on this, then Hansard (in the extract referred to above) shows amendment to the DPA being considered at the same time as the FOIA and yet the opportunity was not taken by Parliament to introduce a qualification to the exemption in the DPA.

The DPA implements the Data Protection Directive 95/46/EU (“the Directive”) into UK domestic law. Article 1 of the Directive requires that, in accordance with the Directive, Member States shall protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data.

Dr Sampson for Dr Ranger submits that the process of implementation of the Directive into UK domestic law has broken down because (he submits) paragraph 3(b) of Schedule 7 of the DPA is not compliant with the Directive, and in particular Articles 12 and 13 of the Directive.

Article 12 requires Member States to guarantee every data subject the right to obtain from the controller, without constraint at reasonable intervals and without excessive delay or expense, communication to him in an intelligible form of the data undergoing processing and of any available information as to their source.

Among other things, Article 13 permits Member States to adopt legislative measures to restrict the rights of access provided for in Article 12 when such a restriction constitutes “a necessary measure to safeguard … (g) the protection of the … rights and freedoms of others”.

It is clear on authority that the reference to necessity invokes the principle of proportionality. In an assessment of proportionality:

“… it is necessary to determine (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.”

See Bank Mellat v HM Treasury (No 2) [2013] UKSC 39, [2014] AC 700, 791 at [74] (per Lord Reed JSC) and [20] (per Lord Sumption JSC); de Frietas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, 80 (per Lord Clyde), Huang v Secretary of State for the Home Department [2007] 2 AC 167 at [19] (per Lord Bingham of Cornhill), and R v Oakes [1986] 1 SCR 103 (per Dickson CJ).

The legislative measure at paragraph 3(b) of Schedule 7 of the DPA helps ensure the confidentiality of information provided to the Commission concerning those being considered for appointment to the House of Lords. The measure serves the objective of helping protect the rights of those who have provided the information in confidence.

More broadly, because at least some information will only be provided if its source or content is kept confidential, the measure also serves the objective of helping ensure the protection of the rights of all members of the public to have the fullest information provided, with full candour, to the Commission in its work in connection with appointments to the House of Lords. I emphasise that in this latter situation the rights are those of all members of the public, rather than the rights of the Commission (compare the Opinion of the Advocate General delivered on 12 December 2013 in YS v Minister voor Immigratie, Integratie en Asiel Joined Cases C-141/12 and C-372/12 at paragraph 84, dealing with the sixth question in Case 372/12, a question not in the event answered in the Judgment of the Court of Justice (Third Chamber) of 17 July 2014 at paragraph 49).

However Dr Sampson goes on to argue that a less intrusive measure was available. This would be a measure that, as with the approach taken by the FOIA, required an assessment in all the circumstances of the case, of the question whether the public interest in maintaining the exemption outweighed the public interest in disclosing the information. I am not persuaded this would work in the context in hand. If the fullest information is to be provided, there needs where possible to be clarity from the start about whether confidentiality will be respected or not.

The certainty offered by a “bright line” rule is proportionate. I appreciate there is not a similar bright line rule for an FOIA request concerning the conferring of an honour or dignity (save in those cases where, because of the content of the request, an absolute exemption is also engaged). However that is explicable by the fact that the purpose and compass of the two pieces of legislation are different.

In combination, paragraph 3(b) of Schedule 7 of the DPA and section 40(1) of the FOIA give clarity to all and from the start that the nominee for a peerage will not be entitled to access his or her personal data through the Commission. There, the public interest question involved has been decided rather than left to be addressed when a request for disclosure is made and on a case by case basis. The public interest question involved when the request is not a request by the nominee to access his or her personal data will be addressed when a request for disclosure is made and on a case by case basis. The balance struck by the approach taken in the legislation is at least within the margin of appreciation accorded to a Member State in these matters.

In the result I am satisfied that, in the particular respect under consideration in the present case, the Directive has been implemented in a way that is compliant and proportionate.

Dr Sampson pursued one additional line of challenge to paragraph 3(b) of Schedule 7 of the DPA. He argues that it is incompatible with Article 8 of the Charter of Fundamental Rights of the European Union (2012/C 326/02).

This argument does not in my judgment take things any further. Article 8 provides in part that everyone has the right of access to data which has been collected concerning him or her. Article 52 recognises that there may be limitations on the exercise of the rights and freedoms recognised by the Charter. Article 52 includes the sentence: “Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.”

The Charter therefore does not offer Dr Sampson an argument that is materially different to the one he advances on behalf of Dr Ranger by reference to the DPA, and which I have rejected above.

In broadest terms Dr Ranger, through Dr Sampson, describes his claim as one for transparency. As the argument was put by Dr Sampson, the availability of access to documents, data or information that is sought would provide reassurance, to potential applicants and to the public at large, in relation to the appointments process.

Generally speaking there is of course force in the point that transparency can provide reassurance. But there is a price to be paid by that approach. As already mentioned the availability of access might inhibit frank contributions of information to the appointments process. It is very much in the public interest that decisions about membership of the legislature should be made with full information.

The reassurance to which Dr Ranger refers, whether to public or to applicant, is ultimately achieved, not through the availability of the access that he seeks, but rather by the involvement of the Commission. The public has the reassurance of a body that must act in the public interest and which does so in accordance with a process that is published. The Commission accepted by its Counsel, Mr Hooper, that its decisions are amenable to judicial review.

Where in the course of the appointments process the Commission receives contributions of information it must be trusted to deal with them appropriately and give them the weight that it judges them to merit. If, using its best judgment, they merit no weight the Commission must be trusted to give them no weight.

A further broad appeal was made by Dr Sampson to the rule of law. The importance of the rule of law is not in doubt. Its maintenance requires that the legislation is applied as enacted.

It is clear to me that the claim should be dismissed on all points.

I hope that Dr Ranger may now, with dignity, be able to treat the matter as at an end. I hope that his considerable energies may be devoted to showing that there are other ways in which to contribute fully to business life and public service.

Unhappily the matter has generated protracted correspondence over a number of years. Lest they be overlooked I should record two points that were recorded by the Commission in correspondence before these proceedings began, addressed to solicitors acting for Dr Ranger or his wife.

The first is that the rejection of any one nominee for appointment did not imply that the Commission believed that that individual was not a suitable candidate to become a non-party-political peer, only that it considers that there are stronger candidates. The second is that in the present case the Commission’s secretariat has stated that there is “no evidence that the two unsolicited letters played any part at all in the Commission’s eventual decision”.

These two points are restated elsewhere in the correspondence when it is recorded that the Commission:

“…only considered the information that [Dr Ranger] personally provided. They did not seek, confidentially or otherwise, any other information about Dr Ranger (including information from his referees or from any other source). On the information provided by Dr Ranger, and taking into account the published criteria for nomination as a non-party political peer, the Commission did not think that his nomination was as strong as that of some other candidates, and was therefore unable to take his nomination any further”.