Transparency is all the rage in the wake of the Panama Papers leak, and has now seen the Prime Minister publish a summary of his tax returns for the last 6 years. Other high profile politicians are now making their personal tax affairs available to public scrutiny.
Various media commentators have questioned how far this transparency could go – will it only be expected of Prime Ministers, Chancellors of the Exchequer, the cabinet and shadow cabinet? Or will the expectation spread further to MPs, or even local councillors? Only time will tell.
For many of the country’s 21,060 local councillors
the prospect of having to divulge their tax returns may cause them incredulity.
That is not to say councillors should not expect to be held to a higher degree of scrutiny, as has been showcased in DH v (1) Information Commissioner, (2) Bolton Council  UKUT 0139 (AAC), a recent ruling for the Upper Tribunal of the Administrative Appeals Chamber.
The case involved a campaign by the Bolton News to uncover, using the Freedom of Information Act (“FOIA”), information regarding councillors who were late paying their council tax. The council did initially provide them with some details (but no names), confirming that six councillors had been sent reminders for non-payment, which parties the councillors were members of, how much was outstanding and that two had been sent a Court summons. The Bolton News made further requests, specifically in relation to the identities of the councillors that had received the summons – the Council refused to provide their identities and this position was upheld by both the Information Commissioner and the Lower Tribunal. Despite this, one of the councillors went public, leaving the other councillor’s identity a mystery.
Upper Tribunal Judge Kate Markus QC overturned the decision and ordered the Council to reveal the name of the councillor, Ismail Ibrahim, the Labour councillor for Rumworth ward.
The earlier decisions had focused on the exemption in the FOIA s40 (2) which would mean that the information would constitute personal data, as defined by the Data Protection Act 1998 (“DPA”). It was common ground that the councillor’s name was personal data and would not be disclosed unless disclosure was fair, lawful and met one of the conditions of Schedule 2 and 3 of the DPA.
The Information Commissioner took into account mitigating circumstances which impacted on whether disclosing the councillor’s name would be fair, and concluded the councillor would have a legitimate expectation that disclosure would be unfair.
The First Tier Tribunal also considered the mitigating circumstances, noting the councillor had not consented to the information being disclosed and considered the balancing of article 8 and article 10 of the Human Rights Act, judging that disclosing the name could potentially cause unnecessary and unjustified damage and distress to the individual.
Her Honour Judge Markus QC considered this, but was critical of the failure to address the interests of the public in identifying the defaulting councillor.
She made the following statements:
“I accept that there is a private element to non-payment of council tax, even in the case of a councillor. It is a matter of a private debt in respect of which the individual incurs a private liability. It arises out of a person’s occupation of a private property. The liability may arise jointly with other persons with whom the individual forms a household. Persistent non-payment will lead to the individual being summonsed, in a personal capacity, and possibly being subject to a liability order.
“But, in the case of a councillor, it is not only a private matter. A councillor is a public official with public responsibilities to which non-payment of council tax is directly and significantly relevant
The Judge listed the following reasons non-payment could be an issue:
- Section 106 of the Local Government Finance Act 1992 bars a councillor from voting on the Council’s budget if he or she has an outstanding council tax debt of over two months.
- If a councillor is present at any meeting at which relevant matters are discussed, he or she must disclose that section 106 applies and may not vote. Failure to comply is a criminal offence.
The Judge stated “council tax default strikes at the heart of the performance of a councillor’s functions”
and “recent failure to pay council tax is likely to impact on public perceptions and confidence in a councillor as a public figure. These factors are of critical relevance to expectation
”. She continued with a passage that seems extremely pertinent in the new transparency orientated political environment of the last week, “those who have taken public office should expect to be subject to a higher degree of scrutiny and that information which impinges on their public office might be disclosed”
The clear message to councillors is, if you don’t want to risk public scrutiny and criticism in relation to your council tax payments, your best course of action is to pay up - quickly.
As per the Census of Local Authority Councillors 2013 http://www.local.gov.uk/documents/10180/5854661/National+Census+of+Local+Authority+Councillors+2013+-+full+report.pdf/886cab3b-146b-4160-a548-d40c17bdfbfc
James Roochove | Solicitor