[2025] UKUT 74 (AAC)

I have some sympathy with the appellant’s frustration with the Tribunal for failing to acknowledge that the Commissioner investigating a complaint against himself is, at least on the face of it, in breach of the nemo iudex in causa sua principle. On the face of it, the Commissioner is indeed acting as a judge in his own cause. The Commissioner’s position is, it seems to me, different to that of the local authorities in the Begum and Field cases to which the Commissioner has referred. Those cases were concerned with internal reviews of administrative functions of the local authority. The internal reviewer under the Housing Act 1996 has no ‘outward facing’ role as the Commissioner does, and no responsibility for investigating the actions of other local authorities. The internal reviewer at the local authority is not a public regulatory body.

The Commissioner, in contrast, is primarily responsible for regulating other data controllers and public authorities and only occasionally has to fulfil the same role while investigating complaints against himself as ICO. When doing so, he does so after he has, in his ICO capacity, already made one decision on the case and often (as happened in this case) also carried out an ‘internal’ review of the sort that other public authorities must carry out in FOIA cases before someone can complain to the Commissioner (which ‘internal’ review is probably closest to the review role under consideration in the Begum and Field cases).

I can understand why the appellant feels that these features put the Commissioner in a different position when he is investigating complaints against himself to that of the local authorities in Begum and Field and why he argues that there is an appearance of bias.

However, I also understand why the appellant takes what he presents as the pragmatic approach of not arguing that the Commissioner is disqualified on bias grounds from investigating complaints against the ICO. This is because it is difficult to see how the role of information commissioner could have been set up without this feature: even if the handling of complaints about the ICO’s activities as data controller was allotted to an alternative public body, the result would be that the alternative public body was then itself a data controller, and a further public body would be needed to investigate the activities of the first alternative public body, and so on ad infinitum (to use more Latin, meaning ‘to infinity’). The only obvious way to avoid that would be for there to be a direct right of appeal to a court or tribunal in place of a complaint to the Commissioner in cases concerning the ICO’s compliance. However, Parliament has not seen fit to take that approach. I have not in this case been provided with any Parliamentary materials explaining this decision, but it strikes me that a direct right of appeal to the First-tier Tribunal in cases where someone complains that the ICO has failed to comply with the UK GDPR would appear to be redundant, given that a person who considers the ICO has failed to comply may pursue a civil claim to the County Court or seek judicial review in the High Court.

Against that background, it seems to me that, although the appellant presents his position in this appeal as being one of pragmatism, the fact that the appellant stops short of arguing that the Commissioner is disqualified from investigating himself is significant. It could be said that this is an implicit acknowledgment by him that the fair-minded and informed observer would not conclude that there was real possibility of bias merely because the Commissioner, in the exercise of his regulatory functions, sometimes has to investigate his own actions.

The Commissioner in response to the grant of permission in this appeal pointed out that the Commissioner “is the statutory regulator in this sphere, with institutional competence conferred by Parliament, and with a staff of more than 500 individuals undertaking different regulatory functions”. These factors, together with the observations of the Court of Appeal in Field at [44]-[48] about the circumstances in which an appearance of bias will not arise merely because a public authority is tasked by Parliament with reviewing the lawfulness of its own decisions, should in my judgment be sufficient to satisfy the fair-minded, and not unduly sensitive or suspicious observer, that there is no appearance of bias where the Commissioner investigates himself.

If I had to decide in the present case, on the basis of the material before me, whether the Commissioner is disqualified from investigating the actions of the ICO as a result of an appearance of bias, I would therefore reject that argument.

However, there are three reasons why it seems to me that it is unnecessary and/or inappropriate for me to make a final determination of that question in these proceedings. First, because the appellant stops short of contending that the Commissioner was disqualified from carrying out that role in this case so the issue is not in truth squarely before me, despite the importance that the point has for the appellant. Secondly, because (as the Commissioner submits) this is a section 166 application which is, as the authorities discussed above make clear, essentially a procedural remedy which should not be expanded to achieve ‘by the back door’ what ought properly to be the subject of a judicial review challenge in the High Court. A challenge to the lawfulness of the statutory scheme that has left the Commissioner responsible for investigating himself is quintessentially the sort of challenge that would be better considered in the High Court. Thirdly, and relatedly, as a result of the way the argument has been raised by the appellant, I do not have before me the evidence or submissions that would be needed fully to consider an apparent bias challenge: I would need before me all the material that would be available to the well-informed observer, which would include evidence from the Commissioner as to how the Commissioner arranges his staff and functions and what steps are taken to ensure impartiality when the Commissioner investigates the ICO. Further evidence as to the government’s or Parliament’s intentions or thinking in setting up the statutory scheme would likely also be useful.

What I do have to decide in this case, it seems to me, is whether there is enough in the appellant’s bias argument to mean that the Tribunal should take a different approach to section 166 cases where the Commissioner is asked to investigate the ICO, than in other cases. For the reasons I set out below, I have ultimately decided that I do not accept the appellant’s argument in this respect as a matter of principle, although I do have some concerns about the way that the Tribunal has expressed its decision in this case which bear on this argument and which I need to address.