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Parliament was planning to continue to defy demands for full details of MPs’ expenses even when it was finally going to release receipts in July.
Its plans were wrecked after The Daily Telegraph today began publishing details taken from a CD apparently containing all the unredacted receipts supporting claims under the ‘additional costs allowance’ (ACA) made by MPs over the past five years, including the cost of second homes.
Last year, the high court ordered parliament to release details of all such expenses claims, dismissing an appeal against an order to disclose made by the information tribunal.
The tribunal had in turn dismissed an appeal by the commons against a decision by the information commissioner that a breakdown of the total annual amounts claimed by each MP for accommodation allowances should be released. But the tribunal substituted that decision for one that ordered disclosure of specific claims and supporting documentation.
This represented another lost appeal by the house of commons against orders to disclose various details of MPs’ expenses in response to requests under the freedom of information act (FOIA). Requests for details of MPs’ expenses were made by journalists, FOIA campaigners, the FOIA Centre and even at least one MP.
The high court specifically rejected parliament’s argument that disclosure, in particular of MPs’ home addresses, would breach their privacy.
The information tribunal had previously ruled that it was inappropriate to redact MPs’ addresses. The tribunal was so convinced that the ACA system was deeply flawed that it ordered full disclosure, including the addresses to which the ACA forms applied.
It noted that the addresses of well-known MPs were already available, and that such details are made public for all prospective MPs as soon as they register as candidates. Given that at least one address of an MP would be in the public domain anyway, there would not “ordinarily be a sufficient reason for keeping a further address confidential, particularly when scrutiny of the identity of second homes is part of the reason for disclosure of the information under consideration.”
It made an exception for “details relating to the security measures at MPs’ homes (whether goods or services) save that where an amount has been identified by the MP as relating to security, that reference and the total amount attributed to it shall not be redacted.”
It added: “Where a particular MP has a special security reason for keeping the address of his or her main or second home confidential (for example, because of a problem with a stalker, or a terrorist or other criminal threat), that address may be redacted.”
The commons told the high court that the tribun-al’s conclusion on the need to disclose addresses was flawed, saying that it represented an intrusion into a “core” issue of privacy and that it was neither proportionate nor necessary.
However, in its ruling in May 2008, the high court said: “The strength of the tribunal's reasoning de-pended on its overall conclusions about the many deficiencies in the ACA scheme, which was exclusively concerned with accommodation arrangements.
“Having closely examined the privacy issue, not only as it related to the MPs claiming ACA, but also to anyone living with them, the tribunal concluded that ‘the ACA system is so deeply flawed, the shortfall in accountability is so substantial, and the necessity of full disclosure so convincingly established, that only the most pressing privacy needs should in our view be permitted to prevail.’
“It may be that the system will be revised, and subject to much more robust checking to ensure, for example, that the addresses to which ACA relates do in fact exist, and that the claims for them are within the scheme and not excessive. If so, the case for specific disclosure of such addresses may be rather less powerful. As it seems to us, all the necessary elements to the decision-making process were properly recognised and carefully balanced by the tribunal.”
It added: “None of this is intended to suggest that the disclosure of an individual's private address under FOIA does not require justification. In the present case, however, there was a legitimate public interest well capable of providing such justification. Thus, for example, there is evidence which suggests that one MP claimed ACA for a property that did not exist, and yet further evidence may demonstrate that on occasions MPs claiming ACA were letting out the accommodation procured from the ACA allowance.”
The house of commons was planning to release MPs’ expenses claims, including receipts, in July after redacting some details. The commons intended, for example, to redact details of MPs’ addresses.
Harriet Harman, leader of the house of commons and deputy leader of the Labour party, gave the clear impression in one interview that the redactions would have gone further than the exceptions provided for by the information tribunal.
She told Channel 4 News: “The public were entitled to more detail than we published, so they could see year by year, and compare different MPs of how much they are spending and what they are spending it on.
“But I do defend what we did, that we should not publish MPs' home addresses, because MPs that live with their families, who live with their children - it should not be the case that that should be in the public domain.
“A local head teacher should not have to have their home address put in the public domain, the local commander of the borough police should not have their address put in the public domain.
“The fact that my address was in the public domain meant that I had Fathers4Justice on my roof. If people have got homes to live in - I stand by the right to say we do not publish addresses.”
Politicians have been critical of the fact that the CD sold to The Daily Telegraph contained unredact-ed expenses claims, including all the addresses. But the newspaper was able to reveal the practice of “flipping”, under which MPs changed the designation of their “second” home in order to claim for expenditure at two properties, only because it had bought unredacted details of expenses, including all the addresses.
How would the commons have been able to redact details of MPs’ addresses when it finally published the expenses?
The government, in a little-noticed move after the high court ruling, changed the law specifically to block the disclosure of MPs’ addresses under FOIA.
Although further attempts in the commons since the ruling to exempt MPs from FOIA ultimately failed, Jack Straw, justice secretary, introduced a statutory instrument last July that put details held by the house of commons, house of lords or the welsh assembly of any residential address of members of those assemblies completely outside the scope of FOIA.
Any information held by those assemblies on members’ regular or future travel arrangements, or any material relating to the identity of anyone who has provided goods or services to a member at a residence of the member, or anything relating to expenditure by a member on security arrangements, was also put outside the scope of FOIA under the order.
This change to the law, “the freedom of information (parliament and national assembly for Wales) order 2008”, also meant that the appeal mechanisms under FOIA did not apply to any of this information.
For anyone whose interest is to uncover the truth and hold people in positions of power to account, FOIA has proved to be crucial. The case of the scandal of MPs’ expenses starkly demonstrates what can be uncovered with the help of FOIA.
However, we have to observe that none of us who used FOIA to loosen the earth around the rock from under which many MPs are currently crawling made the seismic discoveries that have so shocked the public. That honour has gone to The Daily Tele-graph, which secured the deal with a bit of old-fashioned cheque-book book journalism.
Indeed many of the MPs’ misdemeanours would have remained hidden even after the publication by the commons – forced by FOIA – of MPs’ expenses. The appeal mechanism under FOIA, including the high court, ultimately ruled in favour of openness. But MPs, backed up by the government, did not want the law that “applies to all” to apply to them.
And so, two months after the high court observed that it would be “inconceivable” that MPs could expect to be above the law, the government changed the law in such a way that would maintain some of the cover-up of their activities.
A CD apparently containing all the MPs' expenses under the ‘additional costs allowance’ since 2004 was offered for sale to several newspapers. It was reportedly offered to The Times for £300,000, while the Sunday Express took from it details of a claim made by the husband of Jacqui Smith, the home secretary, for the cost of watching two porn videos. Newspaper reports say that the Sunday Express subsequently refused to pay for its scoop.
Well-placed sources have revealed that the CD was then offered to The Sun, but the price demanded had dropped sharply to £30,000 for the highlights. The Sun decided that this figure was too high. We find this a curious piece of news judgement.
The CD was then offered to The Daily Telegraph. Well-placed sources say that The Daily Telegraph only needed to pay a maximum of £110,000 for the CD, much lower than the figures speculated by rival newspapers. The sources also indicate that the seller insisted that The Daily Telegraph pay up front – a wise move.
The Daily Telegraph has played an important public service in publishing the details, and it will reap the commercial rewards – and a clutch of journalistic awards.
This case demonstrates the need for an overhaul of FOIA to make it more effective at holding those in power to account. This should be top of the shopping list for any constitutional changes in the UK to usher in a political revolution.
Although FOIA did not on its own lift the lid on this scandal, it provided the crowbar and someone else supplied the fingers to remove it completely. But no one interested in uncovering information that ought to be in the public domain can be in any doubt about the value of FOIA.
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