Amanda Hart v The Information Commissioner & Anor

On 13 November 2023 the Prime Minister’s Office issued a statement made in parliament and issued a press release which indicated that there had been a Cabinet reshuffle:

The tribunal notes that the changes included Ms Braverman’s dismissal as Home Secretary and were the move of Mr Cleverly from the Foreign Office to the Home Office to replace her; with the vacancy of Foreign Secretary being filled by former Prime Minister Mr Cameron. Further changes were made to the leadership of the Cabinet Office, DEFRA and DHSC. Mr Sunak thus became the third Conservative Prime Minister since 1970 to appoint one of his predecessors as Leader of the Conservative Party as Foreign Secretary, following the example of Mr Heath appointing Sir Alec Douglas-Home in 1970 and Mr Cameron appointing Mr Hague in 2010. Sir Alec Douglas-Home remained in the House of Commons after losing the 1964 General Election and ceasing to be PM and was still serving as an MP when appointed Foreign Secretary. Mr Hague, having lost the 2001 General Election, remained an MP but resigned as Leader of the Conservative Party. Mr Cameron, after his resignation as PM in 2016, resigned his seat.

On 20 November the Appellant wrote to the Cabinet Office seeking information in the following terms:

It is perhaps surprising that the Appellant was unaware when she made the request that point 9 had long been overtaken by events.

The Cabinet Office gave a substantive response on 22 January. It confirmed that it held information within the scope of the request, however it withheld the information relying on s37 of FOIA which provides (so far as is relevant):

The Cabinet Office set out its view of the balance of public interest which in its view required the maintaining of the confidentiality of the process explaining:

The Cabinet Office provided a copy of the extract from Hansard, confirming that this information was reasonably available to Ms Hart (therefore within s21 FOIA) and that other information withheld under s37 was also protected from disclosure by s40 (the protection of personal data). In seeking an internal review on 22 January Ms Hart encapsulated her concern:

The Cabinet Office maintained its position noting that the request ‘appears to relate more to the process of Lords appointments than to the specific appointment of Lord Cameron to the House of Lords’. The Cabinet Office provided links to information detailing the appointment process for the House of Lords and also a link to the Cabinet Manual which explained:

Ms Hart was critical of the response stating that there was no specific information about the timing of the announcement or the rationale for the appointment and complained to the Information Commissioner who investigated. In responding to the Commissioner the Cabinet Office emphasised the distinction between the Cabinet Office and the House of Lords Appointment Commission (HOLAC) who were responsible for vetting and set out the process that had been followed:

The IC also noted the Cabinet office’s statement that “while the process for Lord Cameron was especially quick, it is not unusual for the nomination and vetting process to be truncated to a couple of days, end-to-end” The Cabinet Office had interpreted the request as being for “a copy of a request from the Cabinet Office to HOLAC to begin its vetting process for David Cameron, in order that he could ascend to the House of Lords and take up a ministerial appointment” given the language of the request a directive issued to the relevant authority (as the only other bodies were the Cabinet Office and the Palace) the only material matching the description were the documents sent to HOLAC which started the process.

The Information Commissioner issued his decision notice IC-289075-D4Y0 on 19 November 2024. This reviewed the history of the request and its handling, considered the competing weight of the arguments on the public interest in maintaining the confidentiality of the honours process and concluded that all the information fell within s37(1)(b) and the public interest lay in non-disclosure.

In her grounds of appeal Ms Hart argued that the Cabinet office had failed to comply with its duty to confirm or deny whether it held the information, it had failed to provide her with advice or assistance, that the basis for decision would be information held by the Cabinet Office, that there was a public interest in releasing the information and that the use of s37 was improper and there should have been the release of redacted information.

In resisting the appeal the First Respondent argued that there had been compliance with the duty to confirm whether information was held, since cabinet office had stated that some information was held and this discharged that duty. The Cabinet Office had assisted her by supplying links to information, the public interest arguments had been weighed, all the information fell within the exemption and redaction would have resulted in meaningless document. In supporting the Information Commissioner’s approach the Cabinet Office emphasised that the Commissioner had seen the documents during his consideration of the request, the Commissioner had concluded that the documents provided limited information about process, but by implication did not reveal the reason for the decision to nominate David Cameron, the decision by the Commissioner not to order disclosure reflected the limited value of the information.

In the various stages of advancing her arguments the Appellant has attempted to expand the scope of her request, to seek more information than is requested by the words she used and to advance arguments based on unfounded suppositions as to how the honours system and the appointment of Cabinet Ministers work together. The Cabinet Office at an early stage drew attention to the need for Cabinet Ministers to be MPs or members of the House of Lords. Her request (in two parts) was firstly for the “document or directive issued to the relevant authority concerning the appointment of David Cameron as a Lord. This may include details of the attributes and qualifications considered for this distinction”. The Cabinet Office explained the role of HOLAC as the necessary step in scrutinising such an appointment and accordingly why the request was for the documents sent to HOLAC at the start of the process.

Ms Hart in the course of her arguments stated:

“Any member of the public might reasonably suspect that Cameron accepted the position on the condition that he was made a Lord. If this is what happened, it would be blatantly wrong.

We are not asserting that the requested documents will definitively reveal such a quid pro quo, but at least they would provide the public with some explanation as to why David Cameron was made a Lord so long after his tenure as an MP ended. This is the essence of our concern regarding “timing”, which appears to have been misunderstood as simply the date and time of his ennoblement”

Ms Hart therefore appears not to have understood or accepted the basic functioning of the relationship between being a Minister and being a member of one of the Houses of Parliament despite the explanations given and the widespread understanding of the relationship which is daily reflected in news coverage of politics. It appears that she has preferred to embrace something adjacent to a conspiracy theory in which a return to political office some years after ceasing to be an MP justifies wild unevidenced speculation.

His Majesty’s Ministers are appointed on the advice of the Prime Minister of the day. In November 2023 Mr Sunak felt the need to make changes to the membership of his Cabinet and in his judgement in the circumstances in which he found himself, the appointment of a former Prime Minister as Foreign Secretary was a sound decision. That was a matter for his decision and he put in train the process of securing the granting of the privilege of a peerage to Mr Cameron in order to enable the ministerial appointment.

There was no requirement to “include details of the attributes and qualifications considered for this distinction” which Ms Hart sought through her request for “the document or directive” because that is not the way the process works. The Prime Minister may have discussed the issue in his weekly audience with the King, it may have been raised in Prime Ministers Questions however what Ms Hart sought was recorded information in a specific context.

The examination by the Information Commissioner of the recorded information which she identified concluded that “the information is limited, reflecting the Cabinet Office’s limited role in the nomination process”. The tribunal would endorse that conclusion. The material contains little of value and the public interest is decisively in favour of non-disclosure.

The personal attributes and qualities of Lord Cameron and the timing of the decision are matters which were discussed in the media at the time and may well appear in memoirs published by the participants in the future, however they are not matters contained in recorded form within the material requested.

The decision of the Information Commissioner is correct and the appeal is dismissed.