Nature of the Honours Nomination Process and the Public Interests Inherent in s37(1)(b)
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When looking at the application of s37(1)(b), consideration should be given to protecting what is inherent in the actual exemption, namely, protecting the integrity and robustness of the process of recognising and rewarding individuals for exceptional merit, bravery, achievement or service to the country.
On a practical level, this means that the Commissioner will consider whether the confidentiality of the process should be maintained taking into account safe space and chilling effect arguments.
The nomination process is described on the direct.gov.uk website as follows:-
According to the House of Commons Public Administration Select Committee’s 2004 Consultation document (*) which sought views on possible changes to the honours system, approximately 6,000 – 7,000 nominations are submitted each year and approximately 3,000 honours are awarded annually (split between the New Years and The Queen’s Birthday Honours Lists). According to direct.gov.uk, in 2010, 997 individuals were included on the New Years Honours List.
Section 37(1)(b) states that information is exempt if it relates to “….the conferring by the Crown of any honour or dignity”.
The following points should be borne in mind at the outset:-
The Commissioner’s Approach
The Commissioner considers that the public interest inherent in the s37 exemption is the protection and preservation of the integrity and robustness of the centuries’ old system of awarding honours to recognise and reward individuals for their exceptional merit, bravery, achievement or service to the country. The Commissioner believes that an important element in maintaining the integrity and robustness of this process is that those contributing to it are willing to provide information and discuss the merits, or otherwise, of a nomination in a truthful and free and frank manner. As such candour is largely achieved by allowing the nomination process to be, and be seen to be, conducted in a confidential manner; the Commissioner considers that confidentiality is an important feature of the whole process to which he will attribute significant weight.
However, section 37(1)(b) is not an absolute exemption and thus there may be cases where it will be appropriate to disclose information even though this may be detrimental to the extent that it erodes the appearance and/or reality of the confidentiality of the process. In addition, if confidentiality is the main concern, the public authority could claim s41 but if s37 is claimed, wider considerations of the damage to the honours process need to be considered. Likewise, section 40(2) could be claimed if the request is directed at information relating to an individual nomination but inevitably the issue of protecting personal information may form part of the wider considerations within section 37 in an individual case.
(1) Protecting safe space
The Commissioner has accepted, in principle, the argument that those contributing to the nomination process require a ‘safe space’ in a similar way to the ‘safe space’ arguments put forward in section 35 cases. In section 37 cases, this safe space is required to allow those involved in the honours process to discuss sensitive issues around the significance or otherwise of an individual’s achievements free from any pressure by, or on behalf of, candidates and without being hindered by external or media comment/speculation/enquiries as such pressure or hindrance may distort the integrity of the process and divert resources from the task in hand.
This approach was taken in a case involving a request for information about the decision to award Colin Bell an MBE (see FS50184282) where it was said at paragraph 31:
“…only the most deserving candidates will succeed. It is important that each nomination should be judged objectively on the basis of the information given and its relative strength in comparison with others, rather than on the basis of whether a decision will meet with approval from various sectors and pressure groups”.
However, the weight which should be attached to the ‘safe space’ arguments will largely depend on the point in the process at which the request is made, as follows:-
Where a request is made during the course of the nomination discussions; then the safe space arguments will be at their strongest as the issue is ‘live’ and the parties need to be able to debate all nominations in a free and frank manner.
After The Queen has given her approval but before a final list has been agreed and published, there remains a need to maintain some safe space in order to discuss the composition of the final list which may not replicate the draft list because some nominees may reject the offer of an award. As such, provided relevant supporting arguments and/or evidence are produced, the Commissioner is likely to accept that some weight can still be attached to safe space arguments up to the point of the final list being published.
However, after the honours list has been announced and published in the London Gazette, then there is no safe space to protect and no weight should be attributed to such arguments after this point in relation to the processing of an individual nomination.
It should also be noted that the Commissioner is only likely to be persuaded that a safe space is required in cases where person-specific information has been requested, for example, why was X nominated or requests which asks for the names and reasons of all unsuccessful nominees. However, where the request asks for information concerning general policies or processes in connection with the awarding of an honour, then it is less likely that the Commissioner will accept that there is any safe space which needs to be protected.
(2) Chilling effect
The Commissioner accepts that the nomination process requires contributors to be willing to provide free and frank information and opinions in order to facilitate a robust discussion around the sensitive subject of whether an individual’s achievements are sufficiently significant and exceptional in order to merit an award. However, if those contributors believed that their opinions and/or criticisms could be made publicly available and thus subject to (possibly negative) external and/or media scrutiny, there may be a chilling effect on the contributors’ willingness to continue to provide free and frank input which would impact on the robustness of the process and which would ultimately go to impair the integrity and status of the honours award system.
An important point in considering the weight which should be attributed to ‘chilling effect’ arguments relates to the point at which the request is made as follows:-
Where a request is submitted in the period before a decision has been made in relation to a specific individual, the chilling effect arguments are likely to be at their strongest as the Commissioner is likely to accept that any disclosure would affect the frankness and candour with which the relevant parties would continue to contribute to the rest of the nomination process in relation to that individual. The Commissioner may also accept that the disclosure of information in relation to one individual may have a chilling effect on other ‘live’ nominations being discussed at the same time and further that “….given the significant number of nominations that are assessed and honours that are awarded, the Commissioner believes that the likelihood of the process being harmed by a loss of frankness and candour could be said to be relatively high. Therefore even if the disclosure of this information would only lead to a relatively minor, though still prejudicial loss of candour on the part of the officials involves, given the number of nominations that are assessed the effect on the process could still be significantly adverse” (para 51 of FS50184282).
However, even after the publication of the final list, the Commissioner could still be persuaded that chilling effect arguments could be attributed some weight given that the honours process is based on an ongoing expectation of confidentiality and a particular need for candour and thus disclosure may affect the future behaviour of those nominating, those nominated and those whose opinions are sought as part of the process. Although, the more time which has elapsed since the announcement of the award, the less weight should be attributed to these arguments.
It should also be noted that this chilling effect argument is likely to be stronger where the requested information relates to the decision on an award to a specified individual and that the Commissioner is less likely to be persuaded that there is a chilling effect where the requested information relates to general policies or procedures in relation to the honours process. See, for example, FS50197502 where in response to a statement made by Lord Ashcroft, following the conferring of a life peerage upon him, in which he gave an assurance that he would take up permanent residence in the UK, the complainant made a request for information which would address the issue of where Lord Ashcroft would reside and pay tax. The complainant specifically confirmed that he was not seeking information which related to Lord Ashcroft’s suitability for the peerage. The Commissioner found that a “…distinction can, and should, be made between the subjective and person-related sensitive information required by the honours system, and information relating to any criteria identified as being necessary for consideration for an award…The criteria against which nominees are considered are likely to have constitutional significance and be less sensitive and their disclosure is therefore more likely to serve the public interest” (para 26).
In the case of FS50194194, the complainant asked for information held by the House of Lords Appointments Commission (HLAC) relating to the appointment of Lord Hameed to the peerage. The Commissioner found that information in two categories ((i) standard vetting letters and (ii) miscellaneous information) could be disclosed because there would only be some very minor prejudicial impact as a result of disclosing information about the HLAC’s processes and procedures.
However, in relation to the remaining withheld information (which included internal discussions in relation to the application, responses in relation to vetting letters and submissions in support of the nomination), the Commissioner found that the public interest test favoured maintaining the exemption because: “….the Commissioner has placed significant weight on the fact that those involved in the appointments system, and in particular those who provide the House of Lords Appointments Committee with submissions to support nominations, need to be able to make candid and frank comments about nominees in the future….” (para 55). This was particularly the case in relation to the award of a peerage given that life peers are entitled to take a seat in the House of Lords and thus have an influence on legislation and may be eligible to join the government of the day. As such, this makes it even more important that contributors are not inhibited from engaging in free and frank discussions as to the suitability of nominees given the possible influence that appointed individuals may wield if awarded a peerage.
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