More on the British FOIA and the House of Commons

Those who follow matters of legislative privilege and transparency may find the U.K. FOIA case against the House of Commons to be of some interest.  One wonders how the observations of the British courts as to the lack of legislative transparency might be applied to the operations of the U.S. Congress. 

As mentioned in a previous post, the case began with FOIA requests by journalists, including Heather Brooke, seeking information regarding something called the Additional Expense Allowance.  As one court explained: 

The duties of Members of Parliament are chiefly carried out at Westminster and in their constituencies.  They often work long hours, and late into the evening.  As a result, MPs for constituencies outside inner London generally need to reside in two different places.  Since 1971 they have been entitled to claim expenses up to a set limit to defray the additional costs of hotel bills or a second home.  The allowance which they can claim for this purpose is called the Additional Expense Allowance or ACA. 

The FOIA requests were made to the House of Commons administration, rather than to individual MPs, because the House of Commons is a “public authority” subject to FOIA, while MPs are not. 

After the House refused to make the requested expense information available, the journalists went to the Information Commissioner, who issued a decision that was partially favorable to each side.  Both sides then appealed to the Information Tribunal, which issued a decision in February 2008.   

The House argued the case primarily on the grounds that the requests violated the privacy of the MPs whose expenses were at issue.  This, it seems, was a bad litigation strategy, because it required the Tribunal to balance the public interest in disclosure against the privacy interests that were implicated.   The Tribunal determined that there was a substantial public interest in disclosure, mainly due to the inadequacy of the ACA system itself.  It began by explaining: 

The framework of rules governing the administration of ACA is said to be based on the principle that Members are primarily responsible for identifying, claiming and certifying their own expenditure on allowances, and for the propriety of that expenditure.  Historically, this is because of their constitutional position as elected representatives.

 Although the Tribunal noted that “[i]t is not our function to say what system ought to be operated by the House,” it nevertheless could not “decide the issues which are before us without arriving at a view on the effectiveness of the existing controls.”   On that question, the Tribunal was decidedly unimpressed:

The laxity of and lack of clarity in the rules for ACA is redolent of a culture very different from that which exists in the commercial sphere or in most other public sector organizations today.While we can appreciate that the emphasis on self-certification is historically derived from Members’ constitutional position as elected representatives, even if self-certification were considered to be in principle an acceptable system in modern conditions, the inadequacy of that approach is manifest as soon as it is appreciated that the Members upon whom the responsibility of certification is placed do not have access to a clear, coherent and comprehensive statement of their entitlements such as might enable them to fulfill that responsibility.Moreover, the information which is published in the [parliamentary regulations] does not match the system as actually administered, and hence as actually experienced by MPs.In our judgment these features, coupled with the very limited nature of the checks, constitute a recipe for confusion, inconsistency and the risk of misuse.Seen in relation to the public interest that public money should be, and be seen to be, properly spent, the ACA system is deeply unsatisfactory, and the shortfall in both transparency and in accountability is acute.

In light of this finding as the “deeply unsatisfactory” nature of the ACA system, the Tribunal found that the public interest in disclosure clearly outweighed the MPs privacy interests (although it permitted some modest adjustments in the form of disclosure to protect certain personal information).

The House of Commons then appealed to the High Court of Justice, which affirmed the Information Tribunal.The judgment of the High Court, issued in May 2008, may be found here.In view of the Tribunal’s findings as to the unsatisfactory nature of the ACA system (which were not reviewable on appeal), the High Court agreed with its assessment of the public interest:

We are not here dealing with idle gossip, or public curiosity about what in truth are trivialities.The expenditure of public money through the payment of MPs’ salaries and allowances is a matter of direct and reasonable interest to taxpayers.They are obliged to pay their taxes at whatever level on whatever basis the legislature may decide, at least in part to fund the legislative process.Their interest is 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 govern the payment of ACA.Although the relevant rules are made by the House itself, questions whether the payments have in fact been made within the rules, and even when made within them, whether the rules are appropriate in contemporary society, have a wide resonance throughout the body politic.In the end they bear 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 these applications is obvious.

The High Court also addressed how it had jurisdiction over Parliament, something that seems questionable in light of the history of legislative privilege in Britain. As the Court noted, “[i]t is a fundamental principle of our constitutional structures that Parliament should not normally be subject to judicial scrutiny or supervision” and “[l]egal proceedings like these are therefore rare.”

Nevertheless, the Court explained, “[t]he current litigation does not directly or indirectly impeach or question proceedings in Parliament and article 9 of the Bill of Rights 1689 [which protects legislative freedom of debate] is not engaged.”Moreover, the FOIA law itself expressly included the House of Commons as a public authority to which the law applied.In addition, the FOIA law made specific provision for parliamentary information to be exempted if disclosure might infringe upon legislative privilege, and in this regard the certificate of the Speaker of the House of Commons would be conclusive.As the Court noted, the Speaker had not signed any such certificate in connection with the ACA expenses.

Following the High Court decision, one imagines that the Speaker (who has since resigned) regretted his failure to sign such a certificate.There was, as I understand it, some consideration of asserting parliamentary privilege even after the High Court ruling.These issues, however, presumably became moot when the entire ACA database was leaked to the press.