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Ashcroft and the Commissioners

The Information Commissioner has ordered the Cabinet Office to release  information relating to Lord Ashcroft’s undertakings concerning his ‘intention to take up permanent residence in the United Kingdom on taking his seat in the House of Lords.’ The original Freedom of Information Act request sought to find out the form and recipient of Ashcroft’s undertaking.

The Cabinet Office argued that the information fell under several exemptions from the FoI Act – that it was covered under the Data Protection Act, that it was confidential, and that it was exempt as it related to the award of honours. The Information Commissioner rejected each and found that disclosure was in the public interest.

So what will this information tell us when released (assuming there is no appeal)? It won’t say much about Ashcroft’s domicile status. However, by revealing the form and recipient of the undertaking, it may identify a person who can shed more light on these arrangements.

The controversy surrounding Ashcroft was also cited by the Commissioner as a reason why the public interest favoured disclosure:

Since Lord Ashcroft’s ennoblement, the question of where he lives has continued to be raised leading to speculation that Lord Ashcroft has not satisfied the undertaking he gave. Statements by senior politicians concerning Lord Ashcroft’s undertaking have been evasive and obfuscatory and have served to compound this speculation.

and then added:

In the Commissioner’s view there is a legitimate interest for the public to know more about Lord Ashcroft’s undertaking. This flows from the legitimate public interest in understanding the process by which Lord Ashcroft’s peerage was awarded, knowing the details of any conditions placed upon that award and knowing whether Lord Ashcroft has met what appears to have been a condition to his award.

The ruling, in particular that the public interest lies in knowing whether Ashcroft has fulfilled his undertaking, may add to the pressure for some clarification of his status.

Meanwhile, the Electoral Commission’s investigation into the donations made by Ashcroft’s company, Bearwood Corporate Services, continues. The Commission is said to be considering whether the company is carrying on business in the UK – which is a legal requirement for a company to be a permissible donor to a political party.

When big sums (over £5m) are in question, the political stakes are high. The easiest thing for the Commission would be to find that the donations are lawful and maintain the status quo (I mean ‘easy’ in allowing the Commission to avoid deciding what to do next). A finding that the donations are not permissible opens difficult questions about remedies. Deciding whether a company carries on business in the UK requires a careful look at the evidence and takes time – and the issue is time sensitive. A ruling after the election would come too late, with the Party having gained the electoral benefits of the funds. Yet a ruling before the election that the donations are not permissible would also raise difficulties – it would be a controversial step if the Conservative Party had to repay £5 million in donations in the middle of an election campaign (just as it would have been controversial had the Commission required the Liberal Democrats to hand back donations from 5th Avenue). This is just the political context, rather than the merits of the case, but goes to show the difficulties faced when ruling on the legality of company donations.

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