Jacqui Smith - Standards and Privileges Committee Contents





3.  In its edition of 8 February 2009 the Mail on Sunday reported that "Home Secretary Jacqui Smith has claimed more than £116,000 in Commons expenses for a 'second home' while effectively lodging with her sister."[48] Following that newspaper article, I received a number of complaints against Ms Smith based solely on the information in that article.

4.  Under the rules agreed by the House I am guided in such circumstances by the view of the former Select Committee on Members' Interests that it "would not normally regard a complaint founded upon no more than a newspaper story or television report as a substantiated allegation."[49] Nevertheless, when I receive a complaint based solely on a newspaper report, I consider the content of that report very carefully to establish whether it provides sufficient evidence to justify me making an inquiry of the Member. Following a close examination of the article, I concluded that, while it provided a good deal of information about the arrangements which Ms Smith had for her stays in London and in her constituency, it did not provide sufficient evidence that Ms Smith's claims for her constituency residence were in breach of the rules of the House. The starting point in determining this is that where the Member has more than one home, their main home is normally where they spend more nights than any other. The article, did not, in my judgement, constitute sufficient evidence that Ms Smith's London residence was not her main home, or that she did not spend more nights there than in Redditch. It did not, therefore, provide a sufficient basis to institute an inquiry.

5.  Ms Smith's arrangements, and my decision, continued to attract considerable media coverage. Assumptions were made about the nature of Ms Smith's London accommodation. Commentators did not accept that a Member should be able to claim expenses for what they considered to be her main home, in Redditch. The rules appeared to define a Member's main home in a way which was not consistent with people's normal understanding of the term.

6.  I received a letter of 16 February 2009 from one of Ms Smith's neighbours in London which suggested that Ms Smith did not meet the overnight requirement for identifying her London residence as her main home.[50] The evidence was based on the neighbour's own observations of Ms Smith's pattern of residence at the property.


7.  The letter of 16 February 2009 was from Ms Smith's neighbour, Mrs Jessica Taplin. Mrs Taplin said that she understood that under the rules, a Member's main residence was where the Member "spends more nights than any other". Mrs Taplin wrote:

"Since Ms Smith moved into the street last April, it has been very clear to all living on the road that she resides there for less than half the week. Like clockwork she stays on Monday, Tuesday and Wednesday nights whilst Parliament is in session.

"Neither my husband or myself can remember an occasion when there were police positioned outside the house on a Sunday night or Monday morning…As there are always police stationed outside the property when she is in residence, this is a very clear and simple indicator."

8.  Mrs Taplin went on to say that during the summer and at Christmas, and at other times when Parliament was in recess: "the policemen disappear altogether for months and weeks respectively at a time."

9.  Mrs Taplin said that:

"Having done the simple maths based on three days a week minus at least a full month at summer and at least two weeks' complete absence over the Christmas period - there seems to me to be no confusion as to the simple truth of the matter. Since moving into the property Ms Smith does not as the guidance states is required 'spend more nights than any other' at the address."

10.  Mrs Taplin suggested that "a very simple and open way" to investigate the matter would be to look at the police log for the period from April 2008.

11.  Mrs Taplin sent me a further letter of 16 February following up an interview with Ms Smith which she saw on a BBC news website.[51] Mrs Taplin quoted Ms Smith as saying that the place where the Member spent the most time should be the place which they allocate as their main home. Mrs Taplin said that Ms Smith was being misleading since she and her husband had clearly stated that Ms Smith spent three nights staying at the house in London for the majority of weeks when Parliament was in session but was not present at the address when Parliament was in recess. They did not refer to her staying in London in general. Mrs Taplin added:

"She may very well spend most of her time in London—but being 'in London' does not equate to spending the majority of nights at the property she claims to be her primary residence."

Mrs Taplin concluded that the core of the issue was where Mrs Smith spent the majority of her nights and that impartial evidence (i.e. police logs) should be provided to support her claim.

12.  Having considered Mrs Taplin's two letters, I concluded that her evidence as a witness of Ms Smith's pattern of overnight stays at her London residence was sufficient to justify me inquiring into whether Ms Smith's expenses claims based on her main home being in London amounted to a breach of the rules of the House.


13.  The Code of Conduct for Members of Parliament provides in paragraph 14 as follows:

"Members shall at all times ensure that their use of expenses, allowances, facilities and services provided from the public purse is strictly in accordance with the rules laid down on these matters, and that they observe any limits placed by the House on the use of such expenses, allowances, facilities and services."

14.  The rules in relation to most of the years for Ms Smith's claims for her overnight stays away from her main home are set out in Section Three of the Green Book on parliamentary salaries, allowances and pensions published in July 2006. Section Three deals with the operation of the Additional Costs Allowance (ACA). Section 3.1.1 sets out the scope of the allowance as follows:

"The Additional Costs Allowance (ACA) reimburses Members of Parliament for expenses wholly, exclusively and necessarily incurred when staying overnight away from their main UK residence (referred to below as their main home) for the purpose of performing Parliamentary duties. THIS EXCLUDES EXPENSES THAT HAVE BEEN INCURRED FOR PURELY PERSONAL OR POLITICAL PURPOSES."

15.  In support of this Section, there are a number of "frequently asked questions" for which one is as follows:

"What can I claim?  Only those additional costs wholly, exclusively and necessarily incurred to enable you to stay overnight away from your only or main UK residence, either in London or in the constituency. If you receive the London Supplement you will not be eligible."

16.  Section 3.2.1 sets out the eligibility requirements as follows:


a You have stayed overnight in the UK away from your only or main home, and

b This was for the purpose of performing your Parliamentary duties, and

c You have necessarily incurred additional costs in so doing, and

d You represent a constituency in outer London or outside London…"

17.  The principles of the allowance are set out in Section 3.3.1 as follows:

"You must ensure that arrangements for your ACA claims are above reproach and that there can be no grounds for a suggestion of misuse of public money. Members should bear in mind the need to obtain value for money from accommodation, goods or services funded from the allowances."

And in Section 3.3.2:

"You must avoid any arrangement which may give rise to an accusation that you are, or someone close to you is, obtaining an immediate benefit or subsidy from public funds or that public money is being diverted for the benefit of a political organisation."

18.  Section 3.11.1 gives the definition of the Member's main home as follows:


"When you enter Parliament we will ask you to give the address of your main UK home on form ACA1 for the purposes of ACA and travel entitlements. Members are expected to locate their main homes in the UK. It is your responsibility to tell us if your main home changes. This will remain your main home unless you tell us otherwise.

"The location of your main home will normally be a matter of fact. If you have more than one home, your main home will normally be the one where you spend more nights than any other. If there is any doubt about which is your main home, please consult the Department of Finance and Administration."

19.  Section 3.12.1 deals with changes to a Member's living arrangements. It states:

"If you change the location of your main or second home please let us know promptly, as it may affect your ACA claim. …"

20.  The bulk of the inquiries were to cover a period of four years starting at the beginning of the financial year 2005-06. The relevant Green Book for that early period until July 2006 was the edition published in April 2005. That edition contained similar provisions to those quoted from the July 2006 Green Book relating to the scope of the allowance (in Section 3.1.1); and relating to eligibility (in Section 3.2.1). It provided in Section 3.9.1 the same definition of a main home as appeared in Section 3.11.1 of the July 2006 Green Book. It did not include the principles of the allowance set out in Section 3.3.1 and Section 3.3.2 of the 2006 Green Book.

21.  The major change between the April 2005 Green Book and its predecessor for June 2003 was that it omitted the statement that Ministers were deemed to have their main home in London.[52] The provision, which was abolished in 2004, read as follows:

"If you are a Minister or office holder … then your main home is deemed to be in London. Unless you are provided with an official residence, you will receive London Supplement with your salary, and you may be eligible to claim ACA in the constituency."

22.  The July 2006 version of the Green Book was superseded by a new version on 1 April 2009 and further revised in July 2009. These versions replaced the provisions of section 3.11.1 of the 2006 Green Book with a definition that required the Member to determine where his or her main home was, based on his or her circumstances. This complaint, however, relates to Ms Smith's claims under the provisions of the Green Book of July 2006 and earlier editions.


23.  I wrote to Mrs Taplin on 17 February to let her know that I had accepted her complaint. At the same time, I wrote to Ms Smith.[53] I noted that the essence of Mrs Taplin's complaint was that Ms Smith's London residence was not her main home as defined by the rules of the House and that she should not, therefore, have so designated it for the purposes of her claims against the Additional Costs Allowance. I asked Ms Smith to set out the arrangements she had made for her accommodation in London and in Redditch; why she considered her London accommodation to be one of her homes and also why she considered it to be her main home; to explain the nature of her accommodation in Redditch and why she considered her Redditch accommodation was not her main home; and to set out for each of the last three years to the best of her recollection the number of nights she had spent in her London residence, in her Redditch residence and elsewhere. I asked her to explain what costs arising from her constituency residence she claimed from parliamentary allowances and to set out the nature of the discussions she had had with the House authorities about her arrangements.

24.  Ms Smith responded on 24 February.[54] Ms Smith said that, contrary to what the complainant had said about not residing at her London property during the summer and at Christmas and at other times when Parliament was in recess, she had spent a "significant proportion of [her] time at [her] London home" over the 2008 summer recess and the 2008 Christmas holiday period.

25.  Ms Smith noted that the complainant placed "great store by the visibility of the police presence outside [her] home to support her assertions". While it would be inappropriate to give detail about the nature of her protection, she had specifically asked the police to be as unobtrusive as possible. Furthermore, given the unpredictable nature of events that she dealt with as Home Secretary, there was no set pattern to her arrangements, so the complainant's statement that: "like clockwork she stays on Monday, Tuesday and Wednesday nights whilst Parliament is in session" was "just wrong".

26.  Ms Smith said that she was confident that she had abided by both the letter and the spirit of the guidance laid down by Parliament for ACA claims. In 1997, after her election to Parliament, she had rented a house in London with her sister. She already owned a house in her constituency with her husband. She realised that being a Member of Parliament would involve her having two homes—one in London and one in her constituency—and being away from her young family. She therefore wanted her London home "to be more than simply a bolt hole."

27.  Ms Smith said that, in May 1998, she moved into a different house in Redditch. Later in 1998 when she returned to Parliament from having, in effect, taken maternity leave, she moved in London to a flat on her own. Her sister had moved to another job that meant she lived outside London so they could not share. In October 2001, however, she moved to a house in London which she again shared with her sister.

28.  In May 2004, Ms Smith moved to her current Redditch home, a four bedroom house bought for £295,000. She had a joint mortgage on this property with her husband. In April 2008, she moved in London to her current address where she lived with her sister and her sister's partner. This was a three bedroom house bought for £450,000. Her sister had a mortgage on the house. Ms Smith was a guarantor of the mortgage. Newspaper descriptions of her living arrangements in this house were mostly wholly inaccurate. She did not "rent a room", she shared the house. Ms Smith said that she paid a rent of £700 per month to her sister, on which her sister paid tax. In addition, she contributed to other bills, such as utilities and cleaning. She bought the TV licence. They ate together and Ms Smith contributed about £150 a month towards food. She had bought fixtures, fittings and furniture throughout the house. She recently paid £1,000 as a share of having a new boiler. She had entertained friends and other family members at the house. In particular, they had chosen to have a third bedroom partly so that her children could have a room to sleep in when they came up in school holidays and for weekends. Ms Smith and her sister provided emotional support for each other.

29.  Ms Smith concluded that for all these reasons, and most importantly because it was her base for most of the week, she considered her London residence to be her main home in the terms set out in the guidance for the Additional Costs Allowance.

30.  Ms Smith stated that she had been appointed as a Minister in July 1999. Up to February 2004, when the Fees Office had circulated a letter, she understood that Ministers had no choice over which of their homes to nominate as their main home: it had to be their London home because it was assumed that Ministers would spend the majority of their time in London. In the judgements that she had made about the nomination of her main home, this precedent seemed to her to be an important factor. Ms Smith said it weighed strongly with her in the decision not to change the designation of her main home after 2004, when the rules changed to allow Ministers to nominate either their constituency or their London home. Furthermore, by 2005 she was a senior Minister and she entered the Cabinet in 2006. She believed that she would be spending more time in London as a Cabinet Minister, as in fact had been the case.

31.  Ms Smith said that she was aware that some people had argued that, as her children lived in Redditch, this must be her main home. When she became a Minister, she and her husband had considered whether to move their children to London. Because of their children's circumstances, they took a "conscious decision to split the main family home from [her] main home".

32.  Ms Smith also understood the need to seek advice in cases of doubt. That was why her husband, on her behalf, had made contact with the Department of Finance and Administration in June 2007 to seek further advice. Ms Smith enclosed a copy of the letter that she had then sent to follow up the phone call, and a copy of the Department's response.[55]

33.  Ms Smith said that, to identify where she had spent her nights in each of the last three calendar years, she had requested copies of her Ministerial diaries. She had compared these with her constituency and personal diaries and "with my recollection when the diaries are not clear or are incomplete" and provided her best estimates.

34.  In commenting on this information, Ms Smith noted that she had undertaken more overnight and overseas ministerial trips during 2008. It turned out that they had taken place on nights that she would usually have been in London. She noted also that "some of the discrepancy between the number of days and nights spent in each location" was due to her being able and prepared to travel to her Redditch home very late at night and to set out from there very early in the morning in order to conduct ministerial business.

35.  Ms Smith said that as the Home Secretary she needed to be prepared to respond quickly to events and to spend extended periods of time in London—as was the case immediately after she took up post in 2007. At that point she could not predict how many nights she would need to spend in London, but it was a reasonable assumption for her to have made that she would spend more nights in London. She noted that in total, according to her calculations, in the three-year period 2006-08 she had spent 462 nights in London and 435 nights in Redditch. Ms Smith added that she was happy to provide further clarification or details for each of the last three financial years.

36.  Ms Smith said that in the last three years she had claimed the following for her constituency residence from parliamentary allowances: £22,110 in 2006-07 and £22,948 in 2007-08. She believed her claims in the financial year 2008-09 were at a slightly lower level.[56] She had claimed in the categories of mortgage interest, utility bills, council tax, telephone, servicing and maintenance, repairs and cleaning.

37.  In conclusion, Ms Smith noted that she had been subject to incidents at both her addresses and that it was very important that disclosures about her movements and security arrangements did not facilitate further difficulties or concerns.

38.  Ms Smith's letter to the Department of Finance and Administration had been sent on 19 June 2007.[57] She noted that since first becoming a Minister in 1999, she had claimed her London home as her main residence as it was deemed that Ministers had their main home in London as a matter of course. She noted that in recent years, that rule had been relaxed with Ministers now able to say that their main home was not in London. Miss Smith noted that her ministerial duties continued to extend her residence time in London. But she was concerned that she had not formally clarified the designation of her main residence. She noted that she had in particular asked the Department for advice about whether the home where her family lived should automatically be her main home. She said that the advice of the Department was that this was not relevant. She asked for confirmation of this.

39.  In conclusion, Ms Smith said that: "certainly, whilst I remain a Minister (with the extra London and non-constituency based duties this entails) it seems reasonable to continue to deem my 'main home' as being in London…Please could you confirm that this fulfils the conditions of the ACA."

40.  A senior official in the Department of Finance and Administration responded on 11 July.[58] Having summarised Section 3.11.1 of the Green Book (see paragraph 18 above) he said: "I can confirm therefore that the location of a Member's main home may not always be where their family reside. I agree with your assertion that [it] is reasonable to continue to claim the allowance against your constituency home given [that] your ministerial responsibilities require you to spend the majority of your time in Westminster."

41.  Having considered Ms Smith's letter of 24 February with its enclosures, I wrote to her on 2 March about four matters.[59] First, I undertook to show Ms Smith in advance all the factual material I would include in a memorandum to the Committee so that she could comment on the security aspects of any disclosures in that material.

42.  Secondly, I accepted her offer to let me have the statistical information she provided on a financial year basis, including the financial year 2008-09.

43.  Thirdly, I asked for her permission to approach the Metropolitan Police Service, and through them West Mercia Constabulary to ask for information based on their logs. While I did not need information in more detail than she had provided to me, and would not wish to put her personal security at risk in any way, I did think it would be helpful for me to have this information.

44.  Fourthly, I drew Ms Smith's attention to the answer to the first of the frequently asked questions in Section 3.1.1 of the Green Book, that Members could claim "Only those additional costs wholly, exclusively and necessarily incurred to enable [them] to stay overnight away from [their] only or main UK residence…". I asked Ms Smith to let me know whether she had considered her claims under the Additional Costs Allowance against the criterion that her claims must only be for those additional costs which enabled her to stay overnight in her constituency, given that I took it from her letter that she had owned a home in the area with her husband since before she was elected to the House in 1997.

45.  Ms Smith responded to my letter on 26 March 2009.[60] She set out the information about the number of nights she had spent in London and in Redditch in each of the last four financial years. Ms Smith noted that, in terms of the figures for the financial year 2008-09, had one more night per month been spent in London rather than in Redditch, the balance would have been "more than reversed". On the basis of these figures, therefore, she maintained that she had made a wholly reasonable judgement that she would spend more nights in London than at any other property. She had based that judgement on the previous rule in place until the end of 2003-04 that assumed a Minister's main home would be in London; her experience of previous financial years, in which she spent more nights in London than in Redditch; and her expectation as Home Secretary that she would need to be in London with no warning and could therefore spend more rather than less time in her London home.

46.  On my question about the interpretation of the requirement that claims had to be for the additional costs of staying in her constituency, Ms Smith said that her interpretation of this condition had always been that "the 'additional element' related to additional costs involved in having to have two homes in order to carry out both parliamentary and constituency duties." She had never interpreted "additional" as being about whether a particular home was added after election to Parliament. When she was elected to Parliament, there was a genuine need for an additional residence and the nomination for which was to be her main residence only changed when she became a Minister, in line with the rules of the time. The fact that she had maintained a home in her constituency—in addition to her home in London—was directly related to her role as a Member of Parliament. Ms Smith said that if she was not an MP, she would need only one home and she might have sold her Redditch home to move elsewhere. She therefore believed that the costs she had claimed for her Redditch home had been precisely to enable her to stay overnight in her constituency.

47.  Turning to my request for information from the police, Ms Smith said I would wish to judge whether to approach the Metropolitan Police Service, and through them, West Mercia Constabulary along the lines I had proposed. Having no familiarity with the type of records which might be held, however, she was in no position to judge how accurate they might be. As I would appreciate, accuracy in these matters was of paramount importance to her. Ms Smith said that in her view the most accurate records for her movements were her ministerial and personal diaries, supported by her own personal recollection. She understood it would be an unprecedented step to provide access to a Home Secretary's ministerial diary but she would be "very happy to arrange an opportunity for us to go through this and [her] other diaries for the years in question."

48.  Ms Smith said that she had considered carefully my request for permission to approach the police. In view of the important issues it raised for the relationship between protection officers and the principals whom they protected, and in view of the potential implications my request might have for others who were covered by protection arrangements, she had sought advice from the Home Office Permanent Secretary. She forwarded his letter to her of 25 March,[61] with a letter to him of the same date from the Director of the Propriety and Ethics Team in the Cabinet Office.[62]

49.  In her letter, the Director noted that there had been only one occasion she could recall when they had provided an external body with access to a Minister's diary. However, she could appreciate in this case how a ministerial diary could provide an evidence base to establish the Home Secretary's movements. She therefore agreed it should be provided to me for the purposes of my investigation. The Director said that she was not aware of any instances where police protection logs had been provided. She thought the Permanent Secretary would be better placed than she to comment on the impact of providing access on overall policy on personal protection, but she would have thought it raised difficult issues. Her preference, therefore, would be to rely on the Ministerial diary in the first instance and to fall back on the protection logs if at the end of the process, I felt further clarification was needed.

50.  The letter of 25 March to the Home Secretary from the Permanent Secretary to the Home Office[63] said that he agreed with the Director's advice.[64] It would be an unusual and—so far as he knew—unprecedented step for police records to be used in this way but, following discussions with the Cabinet Office Director, he had agreed with the Home Secretary that, in line with her wish to be as helpful as possible to me, I could have access to the Home Secretary's Home Office diary. While "they would no doubt require some interpretation and commentary" they were, unlike police records, an official account, prepared by civil servants, of the Home Secretary's movements. The Permanent Secretary thought they would provide the basis for verifying the Home Secretary's stays in London, in Redditch, and elsewhere. But the Permanent Secretary stressed that they would never normally make the diaries accessible to anyone.

51.  On the question of access to police records for a similar purpose, the Permanent Secretary commented that in terms of personal protection within government, the Home Office did not normally "even confirm or deny whether individuals receive protection" and they certainly never revealed any details about the nature of that protection. The police were responsible for the provision and operation of protection, and it was entirely a matter for them what records they kept. The Permanent Secretary did not know how full these records were or what police resource might be involved in collating usable information. He added that it would be a highly unusual step to reveal any information relating to personal protection, even to the Parliamentary Standards Commissioner. Personal protection was provided to protect the individual. It was not designed to provide a record of an individual's movements and private arrangements. He commented "Many senior politicians accept protection as a necessary consequence of the job they do, but dislike the intrusion into their and their families' privacy which it necessarily involves. If, in the future, they thought that it might be used to provide personal information to a third party, I fear they may look at protection in a completely different way."

52.  The Permanent Secretary's overall view was: "We would greatly prefer it, if all other avenues for resolving this matter could be used before asking the police to release their records."

53.  Having considered Ms Smith's letter, the letter from the Director of Propriety and Ethics in the Cabinet Office, and the letter from the Permanent Secretary in the Home Office, I wrote to Ms Smith on 30 March.[65] I said I was mindful of both Ms Smith's own security and that of others who might require police protection. I noted that both Ms Smith's Permanent Secretary and the Cabinet Office had suggested that access to police records should only be used as a last resort. I thought it would be helpful, therefore, if I took up Ms Smith's offer to go through her ministerial and other diaries. I said that I suspected this could take a little time and that I would be happy to discuss the logistics of this with anyone she designated with the aim of ensuring that the work could be carried out as quickly and securely as possible.

54.  Following contacts with Ms Smith's Special Adviser, Ms Smith, that Adviser, myself and a member of my staff met on 1 and 3 April to go through Ms Smith's ministerial and personal diaries to identify her overnight locations. I had a further meeting with her Special Adviser on 6 April to conclude the work on Ms Smith's diaries for March 2009. At that meeting, Ms Smith's Special Adviser provided me with photographs which Ms Smith had told me were taken at her London home on Christmas Day 2008, and at a London location on Boxing Day 2008 and on the House of Commons Terrace on New Year's Eve. Her Special Adviser subsequently sent me on 21 April the digital properties file for each of these photographs identifying the date and time they were taken. Ms Smith's Special Adviser also provided me some information about missing diary dates.

55.  Having considered carefully the diary information which I had collected, the degree of certainty which I considered it was able to provide, and the advice Ms Smith had received from the Permanent Secretary to the Home Office and from the Cabinet Office, I decided that it would be helpful if I could also have information from the police about Ms Smith's overnight stays. This was because, despite our careful analysis of Ms Smith's diaries, there were unavoidably a number of nights where it was necessary to make a judgement because, theoretically, Ms Smith could have travelled to Redditch between her last appointment in London on one day and her first appointment there the following day, and there were other days where the evidence was not sufficient to form a wholly reliable judgement. These days were enough significantly to affect the final figures.

56.  I therefore wrote to Ms Smith on 22 April.[66] I enclosed a summary of the overnight stays which we had identified following our analysis of her diaries. I noted that the figures were very close to the ones which she had sent me in her letter of 26 March; that a comparatively small number of nights spent in Redditch (or, in the final year, in London) would have a significant effect on the overall figures; that a significant proportion of the conclusions were based on a reasonable estimate of where Ms Smith was likely to have spent the night; and that for a small number of nights the diaries alone provided insufficient evidence to make a wholly reliable judgement. For 2007-08 and 2008-09 the number of nights for which there was insufficient diary evidence could affect significantly the overall balance across the year. In the light of this, I concluded that it was necessary for me to ask the police whether they could reliably provide such information. Whilst I noted that I would not describe it as a last resort, this information was, I believed, necessary in view of the comparatively narrow gap between the London and constituency locations in the final two years, the proportion of nights which were necessarily estimated from her diaries and the potential impact the most uncertain nights would have on the overall figures.

57.  Accordingly, I wrote to the Commissioner of Police of the Metropolis on 22 April requesting his help in identifying the number of nights Ms Smith had spent at her London residence compared to the number of nights at her constituency residence.[67] I noted that Ms Smith had emphasised to me that accuracy in these matters was of paramount importance to her. These figures would only be of value to me if they could be produced with a high degree of assurance as to their accuracy, and if they could be produced within a reasonable timescale. Nor would I want to incur a disproportionate use of police resources. I noted that I had consulted Ms Smith to seek her agreement to my approaching the police for this information. I summarised the advice that she had received from senior officials and noted that Ms Smith had said that it was for me to judge whether to approach the Metropolitan Police Service, and through them, West Mercia Constabulary with this request.

58.  I received on 30 April a response from an Assistant Commissioner in the Metropolitan Police.[68] She said that they had consulted the West Mercia police who shared their views. She said that "the privacy versus security concerns could cause principals, where risk decrees that they need to be protected, to understandably reconsider their position over concerns of a breach of privacy if material were to be released. This could cause significant problems around future protection arrangements." Regarding Freedom of Information, the Assistant Commissioner said that the Metropolitan Police regularly received requests asking for details of protection provided to individuals, and their policy had been to use a "neither confirm or deny" response. She was concerned that supplying the details requested could "undermine that position when considering future FOIA requests". Security arrangements were a serious and ongoing concern.

59.  On Data Protection, the Assistant Commissioner said that she had been advised that the details of the whereabouts, movements and timings of the Home Secretary amounted to 'personal data' within the meaning of the Data Protection Act, and said that "such information should only be released with the express and clear written consent of the subject".

60.  The Assistant Commissioner concluded that:

"Whilst I am keen to provide appropriate assistance, having taken all these issues into account my view is I am not in a position to release the information requested upon the basis of considerations as they pertain at this time. Should the position change, I would be content to reconsider that view."

61.  I responded to the Assistant Commissioner's letter on 7 May.[69] I noted that I would need to consider whether my request was so central to my inquiry that I had to refer the matter to the Committee on Standards and Privileges for it to consider whether to exercise its power to ask for papers and records. But, before considering this further, I asked if the Assistant Commissioner could give me some further guidance on the reference in her letter to reconsidering her view "should the position change". I asked her to let me know what changed conditions she considered would be necessary in order for her to reconsider her view. I asked her also to let me know what reassurances from me might help to meet her security and privacy concerns, given that I was asking only for annualised returns, and assuming that the appropriate level of consent was provided by the data subject (Ms Smith).

62.  I received a response from the Assistant Commissioner on 4 June.[70] She said that, as she thought she had made clear in her letter of 30 April,[71] the main concern that the police had related to Data Protection. She believed that it was a matter between me and Ms Jacqui Smith as to whether she relinquished her right to privacy and whether I would seek "her express consent" for the Metropolitan Police Service (and the West Mercia police) to release the data I had requested. The Assistant Commissioner said that:

"Data supplied in a summarised format would not compromise our current position on the security of protected persons."

63.  Having considered the matter again, I continued to believe that accurate data provided from police logs would help my inquiry. Accordingly I wrote to Ms Smith on 8 June.[72] I asked her to consider giving me her express consent to the Metropolitan Police Service and the West Mercia Constabulary releasing to me in a summarised format the information they held relating to her overnight stays in London and Redditch between 28 June 2007 when she became Home Secretary; and her police protection started and 31 March 2009.

64.  Ms Smith responded with her letter of 15 June[73] giving me her consent. She noted that she had not opposed me seeking this information with respect to her specific circumstances. Her only stipulation was that this information should be as accurate as that provided from other sources. She was, therefore, content for me to receive this information from the Metropolitan Police and the West Mercia Constabulary "on the condition that they can supply me with the night by night analysis that forms the basis of the summary." She was writing to the Commissioner and the Chief Constable to make this request.

65.  Accordingly, I wrote to the Assistant Commissioner on 18 June[74] to request the release of this data on the basis of Ms Jacqui Smith's express consent. I attached her letter of 15 June.[75] I asked the Assistant Commissioner to let me know when she sent me the information, whether there were any points she would wish to make about the accuracy of the summaries the police had produced.

66.  The Assistant Commissioner replied on 3 July.[76] Her letter represented the position of both the Metropolitan Police Service and the West Mercia Constabulary. The Assistant Commissioner confirmed that she had received a letter dated 15 June from Ms Smith providing her written consent to the provision of this data to me. She said that her officers and West Mercia officers had collated data for Ms Smith's London and Redditch residences. This had then been checked for consistency with another data source. Data had been collated by the relevant departments and checked by independent officers. It was consistent with the other source on all but two occasions.

67.  The figures provided by the police suggested that for the period from 28 June 2007 to 31 March 2008, the police guarded Ms Smith for 101 (or 102) nights in London and 128 nights in Redditch; and from 1 April 2008 to 31 March 2009, the police guarded Ms Smith for 137 nights in London and 173 (or 174) nights in Redditch.

68.  The police figures differed significantly from the diary estimates. For the period from 28 June 2007 to 31 March 2008, police figures suggested that Ms Smith had spent 26 more nights in her Redditch home than she had in her London home, whereas her diary suggested that the difference was two nights over the same period. For 2008-09, the police figures suggested that Ms Smith had spent 37 more nights in Redditch than she had in London, whereas her diary estimates suggested that the difference was 9 nights.

69.  I wrote to Ms Smith on 7 July, enclosing a copy of the Assistant Commissioner's letter and drawing Ms Smith's attention to the difference in the balance of her overnight stays between her own diary estimates and the police information.[77] I also indicated that I proposed to class one of the dates for which the police had no firm records as an overnight stay in London, and the other as an overnight stay in Redditch.

70.  Ms Smith responded with her letter of 14 July.[78] She said "I have now gone through again day by day my personal and Ministerial diaries to check any discrepancies with the Metropolitan Police summary." In her letter, she included a table which provided in most cases strong circumstantial evidence from her diary records of her location where it differed from the police records. I have not included this information in the evidence, to protect Ms Smith's privacy and that of her family. The references related to ministerial and political engagements or personal commitments in other parts of the country or abroad, which either placed her away from both residences or which strongly suggested that she had spent the night in London.

71.  I considered carefully the analysis in Ms Smith's letter. I replied to her on 21 July, suggesting that the objective was to produce the best estimate we could of her overnight stays and that I proposed to accept her analysis of her overnight stays where the comments she had made substantiated the amendment to the location which she proposed.[79] But where she had not been able to provide such evidence, I thought it right to accept the police analysis. I attached a revised schedule as the best estimate of her pattern of overnight stays in each of the years in question. I asked Ms Smith to confirm her agreement to this analysis.

72.  Ms Smith responded with her letter of 24 July.[80] She pointed out that "The various exercises that we have now completed have identified the difficulty of arriving at a fully accurate record of where I spent every night over the last four years." She added, "…I accept your recommendation that we should now agree on a best estimate and I am willing to accept your table as that estimate." The agreed table is as follows:
 London  Redditch Elsewhere  Total for year Difference between London and Redditch nights  
1. 2005-06 (from 11 May)        
Number of nights (diary estimate)  139 128  58 325  11 
2. 2006-07        
Number of nights (diary estimate)  151 131  83 365  20 
3. 2007-08        
a. Number of nights (diary estimate) up to and including 27 June  43 29    14  
b. Number of nights (diary estimate and police figures) from 28 June  109 122    -13  
c. Number of nights (diary estimate and police figures)  152 151  63 366  
4. 2008-09        
Number of nights (diary estimate and police figures)  143 161  61 365  -18 

73.  Obtaining the police information had taken from 2 March, the date of my initial request to Ms Smith, until 3 July, the date of the Assistant Commissioner's letter with the requested information. During the period when I was seeking and analysing the information about Ms Smith's overnight stays, I had made enquiries of a number of witnesses to see if I could obtain some eyewitness evidence which could, once it had been received, be used to reinforce the statistical data.

74.  I wrote to the complainant, Mrs Taplin, on 22 April.[81] I noted that I had been examining carefully documentary evidence to establish the nights which Ms Smith had spent at her London residence, at the residence in Redditch, and elsewhere. I noted that the number of nights spent elsewhere would, of course, affect the overall arithmetic. I asked whether, on reflection, the complainant had any further evidence in addition to her letters to me of 16 February. In particular, I said it would be helpful to know whether she had any further evidence to suggest that Ms Smith did not spend some Thursday nights at her London residence up to March 2009; and any further evidence she had which suggested that she did not spend some nights in her London residence during the summer and over the Christmas and New Year of 2008-09, including Christmas Day.

75.  Mrs Taplin responded with her letter of 6 May.[82] She said that she had no written diary or log of the police presence but noted that normal police presence was from Monday mid-morning to Thursday mid-morning and only when Parliament was sitting. She said that this had increased since my inquiry had begun, with the police now there more frequently, sometimes appearing on Sunday night and sometimes being there until Friday rather than Thursday morning. Referring to my specific reference to evidence suggesting that Ms Smith did not spend some of her nights at her sister's house in the summer and over Christmas and New Year, Mrs Taplin said that she could "only say that during the summer recess there is no regular police presence". At Christmas, she and her husband had been abroad, "only returning on 3 January. From memory there was no police presence for a good week or two after our return, only resuming when Parliament was sitting."

76.  Mrs Taplin concluded: "I hope this helps, but surely the police activity log provides evidence of where Ms Smith actually spends the night?"

77.  I also wrote on 22 April to Ms Smith's sister, Ms Sara Smith, with whom Ms Smith stays in London.[83] I set out Ms Smith's description of the arrangement for her accommodation in London as described in her letter to me of 24 February. I asked Ms Sara Smith to confirm her sister's description, to confirm with any evidence she had to support it that most weeks, including the parliamentary recess, Ms Smith stayed with her from Monday to Wednesday, with some Thursday nights and a few part weekends. Finally, I asked her to confirm that Ms Smith and her family had spent the nights of 24-26 December inclusive and 31 December 2008 at their shared address, with any evidence she had to support this.

78.  Ms Sara Smith wrote on 30 April.[84] She said that she and her sister shared a house, as they had done for many of the years during which her sister had been a Member of Parliament. She confirmed her sister's description of the way they shared the accommodation. She also confirmed that her sister spent "three, four, five or more nights a week here, depending on where her duties as a Minister and constituency MP take her" but she was not sure she could provide evidence for this "further than my word".

79.  Turning to the Christmas 2008 period, she enclosed a photograph of Ms Jacqui Smith and her son in front of a Christmas tree and evidence that it was taken in the early morning of Christmas Day 2008. Ms Smith said that their next door neighbour would be happy to confirm that Ms Jacqui Smith was at the property for Christmas and the New Year, as the photograph that Ms Jacqui Smith had shown me demonstrated.

80.  Turning to the evidence which she believed Mrs Taplin had given me, Ms Smith said that it implied that Mrs Taplin or her husband had checked the outside of the Smiths' home every night. This was "quite a commitment" as they lived around thirty metres away "…on the same side of the road and behind a fir tree". Ms Sara Smith said that "The idea that weeks and months have gone by when Jacqui has been away from London—and away from our home here—is not true." Ms Smith concluded her letter with a number of comments on the way the media had reported Mrs Taplin's allegations and the inquiries which she believed newspapers were making about her (Ms Sara Smith). She suggested that by giving her "facts" to a newspaper first, her neighbour "may have encouraged a few people to have made up their minds already".

81.  I noted Ms Sara Smith's reference to possible evidence from another neighbour. She kindly provided me with contact details. I therefore wrote to that neighbour on 14 May.[85] I asked him to confirm the report of Ms Jacqui Smith's presence in the London property on 24 to 26 December and on 31 December. I asked him also to comment on the evidence that Ms Smith had stayed overnight in London from Monday to Wednesday, with some Thursday nights and a few part weekends, including during the parliamentary recesses, and more specifically, last summer.

82.  The neighbour, Mr David Gordon, responded on 30 May.[86] He said that he could confirm the presence of Ms Jacqui Smith at the London house over both the Christmas and New Year periods, 2008-09. He had witnessed a number of family members present at that address for several days during that time and "Ms Jacqui Smith was one of that company". Mr Gordon said he was present at his own address from 24 to 26 December inclusive and on 31 December 2008. Their houses overlooked one another to some degree and so he had occasion to have sight of Ms Jacqui Smith during these periods. He stated that police officers were on duty throughout the Christmas and New Year periods which indicated the presence of Ms Jacqui Smith there. With regard to Ms Smith's presence generally at the London address, while he did not keep a record of events, dates or days of the week, it was his firm impression that, on balance, Ms Jacqui Smith was present there "at least 60% of the time". It was more usual that she was there for a significant part of the working week, although he had noticed "occasional periods of extended presence, lasting a full week or even, on occasion, consecutive weeks." There had been several weekends when he had been aware of her presence at the house, although this was less usual. He had no impression of any significant change of pattern during the parliamentary recess.

83.  Turning to the summer of 2008, Mr Gordon said that he could vouch for regular police attendance at the house, which indicated Ms Jacqui Smith's presence. Occasionally there was no indication of her presence at the house for about a week, but "my observation and impression supports the view that she was present there more often than not".

84.  In summary, therefore, Mr Gordon said that his "own observation and impression" would support Ms Jacqui Smith's account which I had given him.

85.  I wrote to the Director of Operations in the Department of Resources on 22 April.[87] I showed the Director the relevant correspondence and the table of Ms Smith's overnight stays which I had drawn up in discussion with her following my initial analysis of her diaries. I invited the Director's help on the interpretation of Section Three of the Green Book. I asked whether Section 3.1.1 of the rules, read with the Frequently Asked Questions about the Additional Costs Allowance, enabled the cost of accommodating a Members' family in their second home to be met; whether the Department considered that Ms Smith had more than one home within the terms set out in the Green Book; whether he considered that it was open to Ms Smith to identify her Redditch home as her main home, even though she spent more nights in London, than in any other place, given this part of the rule appeared to provide for exceptions. I invited the Director's comments on the exchange of letters between Ms Smith and the Department in June and July 2007[88] and asked for any information the Director had from his records about the conversation which Ms Smith reported in a letter of 19 June 2007 that the Fees Office had had with her husband.

86.  The Director of Operations responded on 15 May.[89] He addressed first my question about the interpretation of the 2006 Green Book, and in particular whether the scope of the allowance extended to costs attributable to family members. The Director said that while the Green Book (3.14.1) said that living costs for anyone other than the Member were not allowable, this had to be construed against a general premise elsewhere in the Green Book that support was available to Members in part to facilitate family life in both London and the Member's constituency. He cited the example of travel allowances providing for spouses and children and the reference to a joint mortgage elsewhere in Section 3 of the Green Book. The advice was: "In the day-to-day administration of the ACA the Department has adopted a pragmatic approach such that, for example, utility bills are generally paid in full and not apportioned in respect of a spouse/partner in residence… our general approach is that costs exclusively or disproportionately for family members are not allowable. So, I am satisfied that the cost of Ms Smith accommodating her family in her second home was acceptable under the rules."

87.  In respect of whether the Department considered that Ms Smith had more than one home within the terms set out in the Green Book, the Director said that he had "no reason to doubt that [… Road] is Ms Smith's residence whilst in London." He noted that according to her letter of 24 February Ms Smith paid rent, contributed to running costs and bought fixtures and fittings and furniture.[90] The Department could not verify any financial transactions because they were not in themselves a subject of any claim against parliamentary allowances: "Bearing in mind the demands of being a Member of Parliament, I can only conclude that [… Road] is indeed a home in the terms set out in the Green Book."

88.  The Director then considered the question as to whether it was open to Ms Smith to identify her Redditch home as her main home, even though she spent more nights in London than in any other place, given that the rules appeared to provide for exceptions. He said, that "The simple answer to this is that it was indeed open to Ms Smith to nominate her constituency home as her main home if the overall facts justified it." He noted that, at the time of the complaint, Departmental records showed Ms Smith's main home as being at her previous address in London. He said that they had received a "backdated nomination form" for the current address in March 2009.

89.  The Director said that "Advice on the main home nomination was offered by the Department on at least two relatively recent occasions when sought by Ms Smith." The letter of 11 July 2007 from the Head of the Validation and Enquiry and Advice Team[91] did, he considered, "set out the position fairly. The main home is not always where a Member's family resides because this can be 'trumped' by the prime condition in the Green Book, which is where one spends most nights. However, my office would always advise that where a Member's family lives is a relevant consideration. Such a fact is not of no consequence."

90.  The Director noted that the Department's letter followed telephone advice that Ms Smith's husband had received from another member of staff on 18 June 2007. He attached the electronic record of this advice.[92] This recorded that the query was "Can you clarify the rule about family members benefiting from ACA payments please?" The advice is reported as: "Told her that she could not claim any form of rent or mortgage to a family member for renting said property."

91.  In the meantime, I had received, unsolicited, a letter of 7 May from Mr Ben Wallace, the Member for Lancaster and Wyre.[93] He asked me to take into account responses to a series of Freedom of Information (FOI) requests to Redditch Borough Council. He noted that the Council had confirmed that "full Council Tax has been paid in respect of the property and that no claim was made for either a second home discount or a single person discount." He noted that Redditch Borough Council offered a reduction in Council Tax liability of 25% if there was only one adult living in the property as their main home, and a discount of 50% if no one lived there. He concluded, "Given that the Home Secretary has claimed the Additional Costs Allowance on the basis that her main home is meant to be London, I believe this latest revelation is worthy of further consideration by your office." He attached the responses to the FOI request to his letter and, following a request from me, subsequently sent me on 18 May the questions which were submitted to Redditch Borough Council. Mr Wallace noted that the request had been made in the name of another person.

92.  I reviewed in early June the evidence I had received from witnesses and the work which I was undertaking on identifying the location of Ms Smith's overnight stays. I wrote to Ms Smith on 18 June[94] to let her know that, subject to the information I was then seeking from the police, I proposed to proceed to an interview with her before concluding my inquiry. In my letter of 21 July[95] I confirmed the date of the interview, and that I proposed to submit a memorandum to the Committee covering both this complaint and the complaint about her media package claims (my inquiries into which are described in the following section).

93.  I met Ms Smith for our interview on 1 September.[96] She reiterated that her letter of 24 February[97] had summarised her arrangements for sharing accommodation in London with her sister, and their history. She said, "The living arrangements are that we have always just shared the house. One of the things that makes me angry is the interpretation of how we live. It is my home in London. There was a short period when I had a flat, but I didn't like it and it didn't feel like home". Decisions had been taken early on not to move the children from Redditch to London and, "we actually had a conversation when I said that I am going to spend more of my time in London. We decided to separate the family home from my main home".

94.  The London property, Ms Smith said, was a three bedroom Victorian town house. She had one bedroom, her sister and her partner another, and there was one for the children, although they did not leave things there. It was also used twice a month by another child. Ms Smith commented, "It is more than visiting a sister or the children visiting an aunt. They wouldn't have to ask permission or to be invited." The living areas, kitchen and dining area were shared. She did not have a separate study, and worked on the kitchen table, commenting "I like people around me". She entertained in the house, but not frequently—every couple of months, and her sister and partner sometimes joined in. She said that the utility bills were probably in her sister's name—the arrangements were "slightly informal"—and she did not contribute to the council tax. She occasionally gave money on top of her rent to get repairs done, and listed a range of fixtures, fittings and furniture she had bought for the property. Her sister decided on the decoration of all rooms except her bedroom, but she was consulted.

95.  Often at the weekends when she was in London, Ms Smith said, the children visited, but this was not frequent, and was happening less as the children had grown up. Her husband visited more often—once a fortnight during the week. She commented, "My children are based in Redditch—my family is based in Redditch. What we explicitly did was to separate my family life from my work life". She accepted that this was difficult for people to understand, and for this reason she had checked up with the Fees Office.

96.  Ms Smith saw the key element of the use of her London home as for her Ministerial business. In 1999, she had become a Minister, and was thus required to claim London as her main home until February 2004. In 2004, when Ministers' London homes ceased automatically to be their main homes, she realised that, as a Minister, most of her life was her work, and most of her time she spent where her work was. She "decided that something needed to qualitatively change to justify a change of designation. I didn't think it likely that I would spend less time in London. Nothing big enough had changed": London was "my home for parliamentary/ministerial duties". She accepted that she had failed in her responsibility to inform the Department of Resources promptly of her move in London in April 2008 and had breached the rule in that respect.

97.  Ms Smith described her Redditch property as a large detached four bedroom house. She confirmed the range of items she had claimed against the Additional Costs Allowance, but had not claimed for every month in every category. She did not claim for food or subsistence, and commented "the costs are greater than the maximum of the allowance. It is a matter of choosing what to claim for when we reach the ceiling". Her husband chose the furniture and decoration, but she was consulted. It had never crossed her mind to apply for a council tax discount on the grounds that she did not live in Redditch, "It would be weird to take money from my constituents to make a saving for the mass of taxpayers". She thought of herself as living there. She accepted that quite a few of her constituents, if they were aware of all the facts, would probably have said that her main home was where her family was. She nonetheless maintained that "if you are Home Secretary you do and should spend most of your time in London. I was making claims on the basis of my individual circumstances, not my family circumstances".

98.  Ms Smith said that she had not at the time counted up where she spent her nights, although when the rule ceased to require Ministers to treat their London home as a main home she had thought about her likely overnight stays there as a London based Minister: "the most important thing from 1999 until June this year has been my Ministerial role and my Ministerial work. The default position is that I am doing my Ministerial work; that I am in London and working". She accepted that, once she became Home Secretary, the availability of a car had meant it became easier to get back to Redditch and that "when I could, I travelled to Redditch to spend the night there". However, she went on to say, "it seemed to me that you needed a justification to change. If asked the question, would I really have said that as Home Secretary I spent more time in Redditch than in London?". She later commented "When I became Home Secretary something qualitative would have to happen to make me change the designation. Nothing did happen." Ms Smith accepted that in 2008-09 she had spent more nights in Redditch than in London, a process that had started earlier, but maintained that she could not have known this in advance; she had made her best judgement, looking forward, on where she expected to stay.

99.  As to the exchanges with the Fees Office initiated by her husband's telephone conversation on 18 June 2007, Ms Smith said that this had arisen from thoughts of moving house in London. She had realised that she would be criticised for her arrangements, and was trying to ensure that she stuck with the rules. She wanted to carry on living with her sister, and the most financial benefit to her would have been to share the London mortgage with her, but she decided not to do this. While she would not have been able to claim for rent if she had nominated her sister's property as her second home, Ms Smith pointed out that she could have claimed a range of other items which would in her opinion have added up to much the same as she had claimed for Redditch "I don't believe I would have claimed less the other way round".

100.  Ms Smith's overall conclusion was that, having gone through the process, it would have been difficult to have justified having her homes the other way round. She subsequently told me that, while she was currently making no second-home claims against the ACA, had Parliament not decided that Members should not change their designation, she would now have done so and designated Redditch as her main home under the 2009 rules, because she had ceased to be Home Secretary. To the suggestion in oral evidence that she had had discretion under the rules to nominate Redditch as her main home and that, on a balanced analysis of the facts it was her main home and should therefore have been identified as her main home for ACA purposes, Ms Smith said this was "based on a lack of understanding of the rules and a complete misunderstanding of my living arrangements," and that had she nominated Redditch, she would have been criticised as a "part time Home Secretary". She had stuck by the spirit of the pre-2004 rules; tested them by checking with the Department; fulfilled their objective requirements; and made a reasonable judgement that prospectively she was likely to spend more nights in London than in Redditch.

48   WE1 Back

49   Select Committee on Members' Interests, First Report, Session 1992-93, HC 383 Back

50   WE2 Back

51   WE3 Back

52   This change was also incorporated in an updated electronic July 2004 version of the 2003 Green Book. Back

53   WE 4 Back

54   WE 5 Back

55   WE 7 and 8 Back

56   Ms Smith's claim for 2008-09 was £19,182 (source: Department of Resources) Back

57   WE 7 Back

58   WE 8 Back

59   WE 9 Back

60   WE 10 Back

61   WE 11 Back

62   WE 12 Back

63   WE 11 Back

64   WE 12 Back

65   WE 13 Back

66   WE 14 Back

67   WE 15 Back

68   WE 16 Back

69   WE 17 Back

70   WE 18 Back

71   WE 16 Back

72   WE 19  Back

73   WE 20 Back

74   WE 22 Back

75   WE 20 Back

76   WE 23 Back

77   WE 24 Back

78   WE 25 Back

79   WE 26 Back

80   WE 27 Back

81   WE 28 Back

82   WE 29 Back

83   WE 30 Back

84   WE 31 Back

85   WE 32 Back

86   WE 33 Back

87   WE 34 Back

88   WE 7 and 8 Back

89   WE 35 Back

90   WE 5 Back

91   WE 8 Back

92   WE 36 Back

93   WE 37 Back

94   WE 21 Back

95   WE 26 Back

96   WE 55 Back

97   WE 5 Back


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