Martin Rosenbaum v The Information Commissioner & Anor

Background

to recommend individuals for appointment as non party political life peers (cross bench peers)

to vet nominations for life peers nominated by UK political parties "to ensure the highest standards of propriety" (political peers).

Relevant only to this Appeal is its role set out at (b) above ie that for political nominations to the HoL where their role is (A25):-

"...to carry out vetting only on the grounds of probity and propriety. HOLAC’s advice did not encompass matters of merit or suitability, which are outside of its remit for political lists and are a matter for the Prime Minister and the nominating parties."

the individual should be in good standing in the community in general and with the public regulatory authorities in particular; and

the past conduct of the nominee would not reasonably be regarded as bringing the House of Lords into disrepute.

a citation is prepared by the PM or other political party leader and sent to HOLAC. It is the PM's written recommendation for an appointment.

the chair of the relevant political party signs a certificate confirming whether the nominee has been involved in a financial transaction with the party.

the prospective nominee completes a HOLAC consent form. This provides the nominee's written consent to HOLAC for them to make further enquiries in relation to their nomination. The form also provides personal information.

HOLAC then vets the nomination checking "propriety" including asking for any relevant information from bodies such as ACRO Criminal Records, HMRC and the electoral commission. HOLAC also carries out online searches against the name of the nominee. In addition to this HOLAC sometimes receives other unsolicited information.

once information is received officials put together a report for HOLAC to consider at a meeting and subsequently HOLAC meets.

HOLAC (for political peers) either advises the PM that it sees no reason not to recommend appointment or draws any concerns to the attention of the PM. It might also highlight "... issues of concern which it judges fall short of probity concerns which might prevent an appointment, but which it considers nonetheless constitute relevant propriety or presentational considerations, were an appointment to be made."

it is then for the PM to decide whether to make a recommendation to the King for the appointment to be made.

"... should the Prime Minister recommend an appointment that HOLAC has indicated it would not support, HOLAC would write to the Public Administration and Constitutional Affairs Select Committee, indicating as much. The purpose of this process is to ensure transparency"

Role of the Tribunal

If on an appeal under section 57 the Tribunal considers—

that the notice against which the appeal is brought is not in accordance with the law, or

to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.

On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.

NHS England -v- Information Commissioner and Dean [2019] UKUT 145 (ACC) the UT said:-

The First-tier Tribunal ‘exercises a full merits appellate jurisdiction and so stands in the shoes of the IC and decides which (if any) exemptions apply..."

Peter Wilson -v- The Information Commissioner[2022] UKFTT 0149 it was held that:-

“30...the Tribunal’s statutory role is to consider whether there is an error of law or inappropriate exercise of discretion in the Decision Notice. The Tribunal may not allow an appeal simply because it disagrees with the Information Commissioner’s Decision. It is also not the Tribunal’s role to conduct a procedural review of the Information Commissioner’s decision making process or to correct the drafting of the Decision Notice.”

Evidence and matters considered

the Appellant's and HOLAC's skeleton arguments and authorities

the Bundle, Supplementary Bundle, the Closed Bundle and a Supplementary Closed Bundle of 42 pages

the open and closed witness statements of Ms Brunton dated 19 September 2024 with an annex

a section of ICO guidance and copies of various newspaper articles

a 10 page extract from a much longer document called UK Governance Project of 1 February 2024

a document entitled "HOLAC process for vetting party political nominees, a "Guide to Completing the Vetting Process" and The Civil Service Code dated 16 March 2015

From Request to Appeal

Copies of all material created between 6 September 2022 and the date of this request (5 July 2023) which relates to Ross Kempsell

Copies of all material created between 6 September 2022 and the date of this request (5 July 2023) which relates to Charlotte Owen

"The Commissioner’s decision is that the withheld information is exempt from disclosure on the basis of section 37(1)(b) and that in all the circumstances of the case the public interest favours maintaining the exemption"

Scope

"...to satisfy the extremely important legitimate interests of the general public to understand fully the processes for appointing people who take decisions and influence debate on behalf of the nation, and for the public to be able to see for themselves whether the processes are adequate and merit reassurance or modification."

Law

FOIA

"Information is exempt information if it relates to—(b)the conferring by the Crown of any honour or dignity."

"We recognise that in some circumstances it is permissible to have regard to later occurring matters if they cast light on the circumstances at the reference date.”

"38 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"

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."

"...correct to argue that the public interest balance to be struck with respect to the s37 exemption falls decisively in favour of non-disclosure and therefore it is not necessary to explore its other grounds of appeal."

" 20... section 37(1)(b) must be read against the backdrop of section 37 as a whole. Thus we agree with the F-tT in Luder v Information Commissioner and the Cabinet Office (EA/2011/0115 at paragraph 16) that the purpose of section 37 itself is to protect the fundamental constitutional principle that communications between the Queen and her ministers are essentially confidential. Section 37(1)(a)-(ad), as noted in the previous paragraph, specifically protects the actual communications with the Sovereign and certain other members of the Royal Family and the Royal Household. Section 37(1)(b) must be concerned with activities other than communications with the Sovereign. The logical purpose of section 37(1)(b) is to ensure candour and protect confidences in the entire process of considering honours, dignities and medals. Colonel Scriven’s argument that where a decision is made not to recommend the creation of a particular award or medal then Her Majesty may well not be informed does not avail him once it is recognised that the provision is not confined to communications with the Sovereign. In any event it does not detract from Ms Stout’s submission that recommendations would have to be made to the Queen both about proposed new honours as well as the proposed new recipients of existing honours – and information about the decision on the NDM is information which thereby “relates to … the conferring by the Crown of any honour or dignity”.

Any FOIA request in relation to a proposal to award a medal to a particular named individual would in principle inevitably engage section 37(1)(b), but such information would in any event be covered by the absolute exemptions in section 40(1) (personal information) and/or section 41 (confidential information). That suggests section 37(1)(b) must serve some wider purpose not limited to the circumstances of identifiable individuals: for example, any discussion in the HDC about a proposal to create a new honour. However, we agree with both Ms Stout and Mr Lockley that there are limits to the breadth of “relates to” and “any” in this context – so information about the venue where the HDC meets could not realistically be said to be information that “relates to … the conferring by the Crown of any honour or dignity”.

"31... Under normal circumstances the importance of maintaining the confidentiality of the process far outweighs the value of disclosure in one particular case. The tribunal must be alert to ensure that its actions do not undermine public confidence in a process which is generally well regarded as performing a useful function of recognising the myriad various contributions individuals make to the well-being of our society or humanity at large. Ms Ewens evidence provided a clear picture of the systematic way the merits of individuals are assessed and the somewhat cautious and risk-averse way in which nominations are handled in order to ensure that no taint of scandal can attach to the process, a reflection of the perceived importance of the honour system in itself and also its link to the Monarch. In Bagehot’s terminology, the honours system is a “dignified” part of the constitution with an “efficient” role in encouraging forms of behaviour.

Against this background the mismatch between the honour and the controversy concerning Mr Patel’s business is stark; the Cabinet Office statement of 7 January 2019 can have done little to assuage that concern.

35...The public interest is in the disclosure of information which will go some considerable way to meeting the public interests, however she has identified a specific document which meets that need and has not gone further. FOIA is an information regime, not a documents regime. In order to meet the public interest in disclosure identified by the Information Commissioner to explain how the decision was made while protecting the confidentiality of the voluntary participants in the system (in order to avoid damage to their confidence in the confidentiality of the system) only parts of the document referred to as “the identified information” need to be disclosed. In the closed annex to this decision I identify those parts of “the identified information” whose disclosure is necessary to achieve the public interest in transparency without damaging the public interest in the confidentiality of the volunteers who make the system possible. The disclosure of the rest of that document and of the residual information would, as Mr Rosenbaum argued, increase public understanding of the process, however that benefit is not proportionate to the harm caused to the functioning of the system"

"The exemption preserves the integrity and robustness of the honours system in order to ensure that awards are conferred solely on merit. Recipients often enjoy privileged positions, and, in some cases are entitled to take up public roles. For example, a working peer can take up a seat in the House of Lords. The exemption is also important in protecting the confidentiality of individuals who have participated in the honours process"

"The honours process relies on the principle of confidentiality, both in terms of the views put forward by the members of the nomination committees and the submissions provided by third parties concerning the suitability of nominees.

There is a risk that the routine disclosure of the participants’ views through FOIA could erode that principle of confidentiality. This in turn could lead to a chilling effect, whereby participants will be less willing to express their free and frank opinions in future.

Such a loss of frankness and candour could result in poorer quality debate and decision-making and have a detrimental effect on the robustness of the nomination process.

The risk of a chilling effect is at its greatest during the nomination process and continues to be a significant issue in the period immediately following the publication of the honours list. However, the risk gradually begins to decrease astime passes and the participants’ expectations of confidentiality start to lessen, although it never diminishes entirely.

The nominees themselves are likely to have a reasonable expectation that their nominations will remain confidential until the honours list is officially published. Once the list has been published this should no longer be a factor.

Candidates who were nominated but did not receive an honour might expect this confidentiality to extend beyond the publication of the honours list. This is due to the potential distress and embarrassment they may suffer should this become public knowledge. In this situation, you must give strong weight to the heightened expectation of confidence those individuals might have. You have to balance the factors in favour of disclosure and those in favour of maintaining the exemption."

"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.”

it was obtained by the public authority from any other person (including another public authority), and

the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.

was the information obtained from a third party, for the purposes of section 41(1)(a) and, if so

would its disclosure constitute an actionable breach of confidence, ie:

did the information have the necessary quality of confidence to justify the imposition of a contractual or equitable obligation of confidence?; if so:-

was the information communicated in circumstances that created such an obligation?; and, if so

would disclosure be a breach of that obligation?;

would HOLAC have had a defence to a claim for breach of confidence based on the public interest in disclosure of the information?

Section 40(2) FOIA

processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.

The Parties' cases on section 37(1)(b) FOIA and the PIBT

Reasons in favour of disclosure

HOLAC in its letter of response said (B58) "there is a strong public interest in knowing that the appointments process is accountable and transparent, and in maintaining public confidence in the peerage appointments system."

(B61) The Appellant said when seeking a review:-

"The material under discussion concerns the appointment process and suitability of members of a legislative assembly – people who will be voting on laws, taking part in parliamentary debate, directly questioning ministers and so on. They will possess decision-making powers and political influence. The process for giving certain individuals this role requires a special, very high degree of legitimacy in our society, as it involves determining who has the right to make important decisions and influence debate on behalf of society as a whole. This requires maximum transparency, so that the process is both legitimate and seen to be legitimate, and the public can see for themselves that appropriate procedures and rules are followed. I therefore believe the public interest favours disclosure.

and

"This is particularly true in the case of the two individuals named in this request, given (a) their comparative youthfulness means they are likely to hold their decision-making and politically powerful roles for very many years, giving them power and influence for a much longer period than most of our legislators, and indeed they are likely in due course to be amongst the longest-serving legislators who have ever held that role in the UK; and (b) the widespread puzzlement and concern, of which HOLAC must be aware, as to what they have achieved, or what qualities they have demonstrated they possess, which could justify their appointment."

in its review HOLAC said (B64)

"...we do appreciate the importance of transparency in the peerage appointments vetting process that encourages public interest, and the public's awareness of how the peerage appointments are handled. We also recognise that there is a public interest in the workings of the peerage system...The Commission fully agrees with your view that scrutiny of peerage appointments is critical, given the role that peers then play in the public and parliamentary life of the nation"

(A8) the IC in the DN said:-

"it is clearly in the public interest that the public understand, and have faith in, the peerage appointments process. This includes understanding how HOLAC assesses nominations for peerages as part of a Prime Minister’s Resignation List. The Commissioner appreciates that HOLAC already places into the public domain significant information about the assessment process for such nominees. However, in the Commissioner’s view disclosure of the withheld information in this case would provide a particular insight into how these processes were followed in respect of the two individuals in question.

The Commissioner is conscious that the two nominations in question were the subject of particular press and public interest as noted by the complainant. To some degree, the Commissioner can see that the public interest in the disclosure of information that HOLAC holds regarding these two nominations is therefore perhaps greater than in relation to the nominations of other individuals who received such peerages."

in his GoA the Appellant said (A18):-

This issue concerns the appointment of members of a legislative assembly, people with substantial political influence and decision-making powers to make laws governing the rest of the population. That process must require a great degree of legitimacy in our society, and that in turn demands maximum transparency.

Issues of propriety (which are HOLAC's responsibility) are an important aspect of assessing suitability for membership of the House of Lords.

There is extensive unease as to the lack of transparency in HOLAC's work, as evidenced for example in the recent call from the UK Governance Project for HOLAC to start to publish citations about all individuals it approves. "

"10 The case for disclosure goes well beyond the normal principles under FOI of promoting transparency, scrutiny, accountability and public understanding in relation to any key public function, although these principles are still applicable and are significant factors to be taken into account as a base level for the public interest in disclosure.

11 The material at issue here concerns the appointment process for a constitutional role involved in determining the rules of our society. Those appointed are members of the UK’s legislature – people who can approve or reject proposed laws (and whose individual votes could be decisive), as well as being able to take part in parliamentary debates, directly question ministers, and so on. They possess decision-making power and political influence"

Reasons in favour of maintaining the exemption

(B58) HOLAC said that "there is a strong public interest in protecting the confidentiality of the consideration of individual nominees and ensuring the potentially sensitive vetting information can be candidly assessed.

The IC in the DN said " However, the Commissioner agrees with HOLAC that in assessing the public interest in disclosure it is vital to remember that its role is limited to assessing the propriety of those nominated, which involves the assessment of the factors set out at paragraph 17. The Commissioner appreciates the complainant’s point that propriety could, and should, be seen as part of assessing an individual’s suitability. Nevertheless, the Commissioner does not wish to enter into a semantical debate about the definition of the word “suitability”. Rather, in his view the key point is that HOLAC’s role in considering a Prime Minister’s resignation list does not involve any assessment as to the merits of a particular individual’s nomination. The press and public criticism and concern at the nomination (and elevation to the House of Lords) of the two individuals, can in the Commissioner’s view, be fairly and objectively described as questions regarding whether they merited such an award. Given the limited role of HOLAC in assessing such nominations, the Commissioner does not consider that disclosure of the withheld information would provide any particularly useful input into this debate or issue.

the IC also said:- With regard to the public interest in maintaining the exemption, the Commissioner accepts that for HOLAC’s processes to operate effectively there has to be a degree of confidentiality around individual nominations and their assessments. This is to ensure that all relevant parties can contribute freely and fully to the process without fear that potentially sensitive information would be disclosed.

In its response to the Appeal HOLAC said (A30):-

The Appellant’s arguments on public interest substantially mirror those he put forward to the IC as part of his complaint, and again ignore the limited nature of HOLAC’s function in respect of political nominees. Paragraph 3 of section 7.1 (of the Notice of Appeal) states that there was “widespread public puzzlement and concern as to the reasons for [the two life peers’] appointment”. Paragraph 4 implies that this concern goes to HOLAC’s assessment of their “propriety”.

This is incorrect. HOLAC’s consideration of ‘propriety’ (as defined in paragraph 10 of this Response) would not include assessment of experience/age, achievements, qualifications or suitability generally. The Appellant’s attempt to link the two nominees’ individual characteristics and the ‘propriety’ of their appointment confuses HOLAC’s two distinctive functions. The concerns to which the Appellant alludes go to the nominees’ suitability/merit (which fall outside HOLAC’s function in this case), not their propriety/probity (which was HOLAC’s focus).

Accordingly, disclosure of the withheld information would not meet the public interest arguments put forward by the Appellant. The DN was correct in its analysis, at par. 21, of the relevance of HOLAC’s limited role in respect of the two nominations and that “given the limited role of HOLAC in assessing such nominations…the [withheld information would not] provide any particularly useful input to this debate or issue”.

While there is a generic public interest in the transparency in and the public’s understanding of the appointments process, its level is much lower than, for example, in Corke. The public interest in maintaining the confidentiality of vetting records is far greater, having regard to the following:

HOLAC already facilitates transparency of its processes via guidance/information provided on its website. Members of the public armed with that information will know what issues are part of HOLAC’s advisory role in relation to political nominees, and that it is not concerned with the suitability of those nominees. Disclosure of withheld material is not required for that purpose;

For HOLAC’s processes to operate effectively, there must be confidentiality around individual nominations and their assessments. This ensures that all those who input into the process (the political party, the nominee, various agencies/authorities with whom enquiries are made) contribute freely and fully to the process, without fear of potential disclosure of any sensitive information. Disclosing the withheld information would severely undermine the confidentiality of the process (which is its cornerstone) and so HOLAC’s effectiveness in the future. Furthermore, if the probity bodies did not have confidence that HOLAC would protect the information they provide it, they would need to reassess its future supply (having regard to their own legal duties). This would be significantly contrary to the public interest. This public interest analysis is on all fours with the IC’s guidance;

The public interest in withholding the information, in the context of the ‘chilling effect’/’confidentiality’ considerations identified in the IC guidance, has not significantly diminished—the resignation list was published less than a year ago;

HOLAC’s vetting requires the nominee’s consent, which can be withdrawn at any time. If the confidentiality of the information a nominee provides to HOLAC (as well as information provided about them) is no longer properly protected, it is likely that future nominees will be deterred from providing the necessary consent. This would likely result in the reduction in the pool of those willing to go through the process and may ultimately lower the calibre of those who complete the process. This would be detrimental to the public interest.

Any information held by HOLAC which may be incidentally relevant to the issue of ‘suitability’ of the nominees (notwithstanding that this was not the subject of HOLAC’s consideration), would nonetheless be exempt pursuant to s. 37 (1) (b) FOIA, for the same reasons"

Balance

(B58)"Taking all of the relevant factors into consideration, including the fact that the Commission already places a great deal of information about its working practices in the public domain to reassure the public that these are sufficiently rigorous, I consider that the balance of the public interest lies in maintaining the section 37(1)(b) exemption in respect to the advice given by the Commission to the Prime Minister regarding the above individuals on Boris Johnson's resignation peerage list"

(B64) "...I believe that the balance of the public interest was fully considered for the reasons set out in our previous letter. Having considered the public interest tests, we do appreciate the importance of transparency in the peerage appointments vetting process that encourages public interest, and the public's awareness of how the peerage appointments are handled. We also recognise that there is a public interest in the workings of the peerage system. While we acknowledge the weight of these public interest factors, I would maintain, however, that the public interest is in favour of withholding the information within scope of the request. "

(B65) "The Commission does not advise the Prime Minister about whether an appointment may be justified on grounds of suitability or merit; and its advice is not binding on the Prime Minister. The Commission therefore considers that the legitimate public interest in peerage appointments is not, in this instance, best served through releasing material it holds in which other considerations are in play; and in which the focus of your public interest concerns is unlikely to be well addressed. Confidentiality is important in order to protect the integrity of the system and without which the system could not function. It ensures that those involved, including nominees submitted to the Commission (whether successful or otherwise), can take part in the understanding that their confidence will be honoured and that decisions made are taken on the basis of full and honest information."

(A8) The Commissioner accepts that disclosure of the information in the scope of the request would significantly undermine the confidentiality of the process, and in turn, HOLAC’s ability to effectively conduct such assessments in the future. As a result the Commissioner considers there to be a significant public interest in maintaining the exemption, sufficiently so, that this outweighs the public interest in disclosure when taking into account the points that he has made above.

There is a basic level of public interest in transparency, scrutiny, accountability and public understanding in relation to a key public function of this kind;

On top of this, the process of selecting legislators has a very special and important constitutional status which requires maximum legitimacy in our society, and that in turn demands maximum transparency;

This is especially true in the case of these two individuals;

There is significant concern about a current lack of transparency in HOLAC’s operations;

It is particularly important for the biographical information and reasons for nomination on to be released (or alternatively for it to be stated that it was never supplied);

Disclosure will not stop those involved in the vetting process continuing to fulfil their duties professionally and conscientiously"

The Parties' cases on section 41 FOIA

"...At the start of the vetting process the Commission informs nominees that any information provided by them and any information the Commission obtains in the course of its further enquiries of other bodies will be treated as confidential. The information therefore has the necessary quality of confidence and there is no overriding public interest that would allow it to be disclosed in breach of that confidence.... "

"...disclosure can only constitute an actionable breach of confidence if it would be counter to the public interest. For the reasons I have already given above, I maintain that there are overriding public interests which favour disclosure."

"The information that is provided to the Commission, including on resignation honours, is obtained from another person and with their consent, is shared with the Commission members. It is only on this basis that the information is shared. I am satisfied that such information has the necessary quality of confidence, was imparted in circumstances which imported an obligation of confidence and that the disclosure of the information would have been both unauthorised by the person confiding the information and would be detrimental to them. I am in no doubt that disclosure of the information would be a breach of confidence and that it would be actionable in the courts. I also consider that any court action brought against the Commission would be likely to succeed."

As to Section 41, in my opinion there would not be an actionable breach of confidence, because the public interest (for the reasons already given above) favours disclosure."

"HOLAC identified to the IC that “it is holding agreements with the associated vetting bodies that the information they provide would remain confidential”. If this confidentiality can no longer be assured, these vetting bodies would need to reassess the future supply of their information/advice (having regard to their own legal duties)"

The Parties' cases on section 40(2) FOIA

"If it would not be fair to the data subject to disclose their personal data, an absolute exemption from disclosure applies. Even if the disclosure of personal data might be fair in some individual; cases, further consideration is then given to Schedule 2 and 3 of the Data Protection Act, including whether processing might be necessary for the purposes of legitimate interests. The Commission undertakes to treat nominations in confidence, thereby creating a reasonable expectation that their names or similarly personally-identifying information, will not be released publicly. To release personally-identifying information (including an individual's name) would therefore, in the Commission's view, be unfair and would therefore contravene the first data protection principle."

"...disclosure is necessary to satisfy the extremely important legitimate interests of the general public to understand fully the processes for appointing people who take decisions and influence debate on behalf of the nation, and for the public to be able to see for themselves whether the processes are adequate and merit reassurance or modification"

"While I acknowledge a legitimate interest in the disclosure of the information requested, I do not consider that this outweighs the interests and rights of the individuals concerned. I am therefore satisfied that disclosure would not be lawful in this instance. I have also concluded that it would be neither fair nor transparent."

"As to Section 40, in my opinion disclosure would be fair and lawful processing of personal data, as it is necessary for the vital legitimate interests of the general public to understand fully the processes for appointing people who take decisions on behalf of the nation, and for the public to be able to see for themselves whether such crucial processes are adequate."

referred to the data subjects' reasonable expectation of confidentiality

the potential for harm due to the nature of the vetting process

the relevant data subjects privacy rights outweighing the legitimate interest of the Appellant

"34...I maintain that disclosure would be fair and lawful processing in this case for the personal data of these successful nominees who have been granted peerages This is because (in line with article 6(1)(f) of the UK GDPR) it is necessary for the legitimate interests of others, and those legitimate interests override the interests of the data subjects in their data being protected.

35.... disclosure is necessary to satisfy the extremely important legitimate interests of the general public to understand fully the processes for appointing parliamentarians who take decisions, make laws and influence debate on behalf of the na on, and for the public to be able to see for themselves whether the processes are adequate and merit reassurance or modification.

These legitimate interests in disclosure are extremely weighty, for the reasons I presented above under section 37.....it is also significant to note that people who agree to be nominated for a peerage have to accept they would be taking on a central public, political and constitutional role. This will inevitably come with additional scrutiny of their personal activities, background and interests, and thus reduced privacy. The legitimate interests of the public in the release of the information are therefore much greater than those of the data subjects in it being withheld"

Witness evidence

"...as a Deputy Director in the Cabinet Office, in which role I am Head of the Honours and Memorialisation Secretariats and, in a separate capacity, Secretary to the House of Lords Appointments Commission (HOLAC / Commission). In my role I am responsible for the honours system and memorialisation of The Late Queen Elizabeth II as well as supporting HOLAC as its senior official. These roles are separate, given that HOLAC is an arms-length advisory body, which is staffed by civil servants but which supports the Commission as an independent organisation. In my role as Secretary to HOLAC, I am responsible for supporting the Commission in its core functions of making nominations for membership of the House of Lords to the independent non-party-political (crossbenches) and of the propriety vetting of life peerages to the crossbenches and political benches..."

Closed hearing

is the information in the two citations in the public domain?

what checks are done by HOLAC in respect of that?

to what extent is there material that strays into merit/suitability within the meeting notes?

Tribunal's Review

The schedule of information in scope (A5CB- A6CB)

An email to HOLAC of 11 November 2022 and connected HOLAC emails (A11CB- A13CB)

Letter from the Chair of HOLAC to the PM of 5 February 2023 (A48CB)

HOLAC Minutes for 8 December 2022 (A14CB)and HOLAC meeting minutes of 12 January 2023 (A105CB)

HOLAC consent form from Ross Kempsell (A9CB) and Charlotte Owen (A114CB)

HOLAC's vetting material for Ross Kempsell (A7CB) and for Charlotte Owen (A112CB) and vetting summary paper and vetting tracker (A37 CB – A47CB) Full vetting report (A53CB) and Updated vetting reports (A96CB)

Email correspondence in October 2022 between HOLAC and the Cabinet Office about the list (A16CB – A20CB)

ACOBA results list (A117CB)

The Citations (A21CB)

we agree with HOLAC when it says that there is a strong public interest "in knowing that the appointments process is accountable and transparent, and in maintaining public confidence in the peerage appointments system" and we attributed considerable weight to the public interest knowing the PM's reasoning as set out to HOLAC.

while we accept that a nominee can withdraw consent at any time and it is not in the public interest for the pool of those willing to be nominated or the calibre of candidate to be lowered. However, in this Appeal we are dealing only with two who were appointed and a request that was made after their appointment was made public.

Life peers are Members of Parliament with the rights, obligations and influence associated with such an appointment thus enhancing further the weight of the public interest in the PM's citations.

while HOLAC says that for its "processes to operate effectively, there must be confidentiality around individual nominations and their assessments" as far as we could see the citations for political life peers (on a resignation list) are not in fact part of HOLAC's process. These Citations were prepared by the former PM and sent to HOLAC who take no part in assisting in the choice of nomination and the content is entirely outside their prior knowledge and control. Therefore, in our view disclosure would not reveal HOLAC's process or role.

we accept that it is important and strongly in the public interest that all those who take part in the nomination of a life peer should be able to take part fully and without fear. However (1) public officials and politicians (including the PM) who take part in the process know or ought to know relevant information is subject to FOIA and (2) that even when engaged section 37 is subject to the PIBT.

we considered the Decision in Ranger that:-

"...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"

however we were not persuaded that publication of these two citations would result in a PM in the future providing less frank contributions or being less open or candid. We reach that conclusion because of the importance of the role of the PM, the importance of the role a PM takes in the appointment of political peers and because of the role HOLAC play and its ability, if appropriate, to refer an outcome to the Public Administration and Constitutional Affairs Select Committee.

we do not know whether when Boris Johnson was preparing these citations he knew that they might be published as a result of a request, thought they could not be or gave no thought to it. However, having seen them, we do not think it likely that had he known about the potential for disclosure their content would have been different.

(h) we do not accept that publication of these two citations would create a future "chilling effect" on a PM seeking to achieve the successful appointment of a political Life Peer. As is said by the UT in the Badger Trust case

"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...."

and by Charles J in the Simon Lewis case

"...any properly informed person will know that information held by a public authority is at risk of disclosure in the public interest."

and on considering officials in Davies:-

"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."

we took the view that it was equally possible that a reminder that a citation might be disclosed if the PIBT favoured it could result in greater openness and candour.

we gave no weight to the Appellant's submission that their relatively young age and potential length of time as life peers was a material factor when weighing the public interest because in our view such an issue had no relevance to the assessment of the PIBT.

we gave some, but little, weight to the " widespread puzzlement" submission made by the Appellant based, for example, on a number of press reports provided to the Tribunal.In an Appeal it might be possible for evidence to be produced of "puzzlement" that could greatly influence the balance of the PIBT. However, that was not the case here. Additionally in our view there was some danger of the PIBT being judged on the basis of an attempted assessment of the media and the public's reaction in this situation. We were also not convinced it could even be objectively done.

we considered the IC's view in the DN that "... disclosure of the information in the scope of the request would significantly undermine the confidentiality of the process, and in turn, HOLAC’s ability to effectively conduct such assessments in the future." We accept that it is strongly against the public interest for this process to be significantly undermined.However, in our view it is also important to note that while those involved may consider it to be a confidential process it is one that (as they know) is subject to a FOIA request and the PIBT. Also as regards the two citations in scope of this request produced by Boris Johnson and sent to HOLAC we do not accept that their disclosure would undermine the HOLAC's effectiveness in the future.

Ross Kempsell at part page A26CB – A27CB.

Charlotte Owen on part of page A31CB.

as regards section 41(1) in our view while the information was obtained from a third party, disclosure would not constitute an actionable breach of confidence because the content (on this occasion) did not have the necessary quality of confidence even if arguably the information was communicated in circumstances that created such an obligation. Finally, and in any event, on the same basis as set out for the PIBT and section 37 in our view the Appellant had demonstrated that HOLAC would have had a defence to a claim for breach of confidence based on the public interest in disclosure of the information

finally, as regards section 40(2) FOIA, Article 5(1)(a) with 6(1)(f) GDPR requires processing to be lawful, fair and transparent for example where necessary for the pursuit of a legitimate interest unless overridden by the rights and freedom of the data subject. Both citations do contain personal data being the sort of information that might appear in a cv or a professional networking site such as LinkedIn or appear in an online site such as Wikipedia. HOLAC accepted (B65) that the request involved a legitimate interest in the disclosure of the information requested and in our view disclosure was necessary in the pursuit of that interest because it would add to the public's understanding of the process and how political peers come to be appointed and what was said as regards these nominations. Having seen the content and because the data subjects concerned on this occasion were ultimately both appointed as life peers and Ms Brunton's evidence that on this occasion disclosure would not cause any particular harm our conclusion was that the data subjects rights did not outweigh the interest being pursued and that disclosure would be fair and transparent as regards the data subjects as well as lawful.

Decision

the citation in respect of The Rt Hon the Baron Kempsell of Letchworth at pages A26CB – A27CB

the citation in respect of Rt Hon the Baroness Owen of Alderley Edge at A30CB – A31CB together with the names of those who supported that citation but not the content of their expressed support.