CONSTITUTIONAL LAW-PARLIAMENT-PARLIAMENTARY PRIVILEGE

Queen’s Bench Division,

Judge P, Latham LJ and Blake J

16 May 2008

Members of the public are entitled to details of MPs’ claims under the additional costs allowance (ACA) payable to MPs who represent constituencies outside or eligible outer constituencies.

Nigel Giffin QC and Karen Steyn (instructed by the Treasury Solicitors) for the appellant.

James Goudie QC and Akhlaq Choudhury (instructed by Mark Thorogood) for the first respondent.

Hugh Tomlinson QC (instructed by Simons Muirhead & Burton) for the second respondent.

Simon McKay of McKay Law for the third respondent.

Philip Coppel (instructed by Bates Wells & Braithwaite) for the fourth respondent.

The proceedings concerned the ACA payable to MPs who represented constituencies outside or outer constituencies which were eligible. The ACA was introduced in 1971. The House of Commons published information about the total sums paid annually in respect of the allowance to 14 MPs later identified in the proceedings. Further details were then requested by the applicants, who were the respondents in the instant appeal, concerning allowances paid. The applications were refused. Complaint was made under s 50 of the Freedom of Information Act 2000 (FIA 2000) to the information commissioner.

After a time he decided that the applicants should be provided with a breakdown of the total annual amounts claimed by each MP for accommodation allowances in the specified years. The House appealed to the information tribunal under s 57, stating that the order should not have been made or, alternatively, that the categories of the breakdown should be varied. The applicants resisted the appeal and cross-appealed on the basis that the relevant information should be disclosed in full as per the original requests. The tribunal stated that the system as operated constituted a recipe for confusion, inconsistency and the risk of misuse. The appeal by the corporate officer of the House of Commons was dismissed, and the cross-appeals allowed. The House appealed to the High Court.

IGOR JUDGE P (GIVING THE JUDGMENT OF THE COURT):

It was a fundamental principle of our constitutional structures that Parliament should not normally be subject to judicial scrutiny or supervision. The House of Commons was answerable to its collective conscience, and in the ultimate analysis, to the electorate. Legal proceedings like the instant action were therefore rare, and it was as well to emphasise at the outset that the court was not being asked to address, nor was it addressing, the basis of and justification for the system by which claims for ACA might be made. That was exclusively for the House of Commons itself.

The current litigation did not directly or indirectly impeach or question proceedings in Parliament and Art 9 of the Bill of Rights 1689 was not engaged. Rather, the court was interpreting and applying the legislation enacted by Parliament. That expressly included the House of Commons among the public authorities to which FIA 2000 applied.

There was no doubt that the public interest was at stake. The court was not dealing with idle gossip, or public curiosity about what in truth were trivialities. The expenditure of public money through the payment of MPs’ salaries and allo wances was a matter of direct and reasonable interest to taxpayers. They were obliged to pay their taxes at whatever level and on whatever basis the legislature might decide, in part at least to fund the legislative process. Their interest was reinforced by the absence of a coherent system for the exercise of control over and the lack of a clear understanding of the arrangements which governed the payment of ACA. Although the relevant rules were made by the House itself, questions whether or not the payments had been made within the rules, and even when made within them, whether or not the rules were appropriate in contemporary society, had a wide resonance throughout the body politic. In the end they bore on public confidence in the operation of our democratic system at its very pinnacle, the House of Commons itself. The nature of the legitimate public interest engaged by the instant applications was obvious.

Misdirection

The principal ground of appeal asserted that the tribunal had misdirected itself by failing to recognise the existence of and therefore give appropriate weight to the reasonable expectations of MPs about precisely how information about the ACA claims would be made available to the public. In essence it was submitted that that constituted an error of law which infected the entire decision and although the tribunal had purported to conduct the necessary balancing exercise, that highly relevant consideration was not, or not adequately, addressed.

His lordship ruled that it was impossible to conclude that the tribunal had ignored the issue of MPs’ reasonable expectations.

The tribunal had expressly recorded the argument, and expressly rejected it. There was no error of law which would justify interfering with the tribunal. Once legislation such as FIA 2000 had been enacted, MPs could not contract out of compliance with it. Even if (which was not accepted) MPs were justified in anticipating that the details of their claims for ACA would not normally be disclosed, once it emerged, as the tribunal had found, that the operation of the ACA system was deeply flawed, public scrutiny of the details of individual claims was inevitable.

As to the disclosure of individual addresses, there was a legitimate public interest justifying disclosure. If arrangement for oversight and control of the ACA system were to change, then the issue of the privacy and security of MPs and their families might lead to a different conclusion to that reached by the tribunal.

The appeals would be dismissed.