[2025] UKUT 74 (AAC)

This ground relates to [10] of the First-tier Tribunal’s decision. The appellant complains that the Tribunal should have treated the Commissioner as “a biased regulator” in this case because it involved the Commissioner in his regulatory capacity investigating himself in his capacity of ICO data controller. The appellant argues that the Commissioner therefore had a motive not to follow a procedurally proper investigation because of his prior dealings with the appellant. The appellant submits that this is an error of law because the Commissioner is as a matter of law biased when investigating complaints against himself. The appellant submits that this is a material error because it led the Tribunal to fail to apply an objective test as to whether the Commissioner had carried out a proper investigation and taken appropriate steps in this case. The appellant argues that as the Commissioner is biased in this case, the Tribunal should not have afforded any respect for his expertise as regulator, as the Upper Tribunal at [76] and [85] in Killock and Veale held a Tribunal must do in all cases.

In the course of oral submissions, the appellant clarified that he was not arguing that the Commissioner was disqualified from determining his complaints about the ICO on bias grounds. That is important, because normally if an allegation of bias is made out, the biased person is disqualified from taking the decision in question (unless the parties waive their right to object in a particular case). That is not, however, how the appellant deploys his bias argument in this case. Pragmatically, the appellant accepts that there is nothing that can be done about the fact that the Commissioner needs to investigate himself if a complaint is made about the ICO’s compliance with his obligations as a data controller under the UK GDPR.

The appellant’s argument in this case is instead one about the Tribunal’s approach to the evidence and to the question of what is ‘appropriate’ for the purposes of his section 166 application. His point (as I understand it in substance) is that the Commissioner is, when investigating a complaint against himself, inevitably apparently biased because he is being what is termed ‘a judge in his own cause’ and that breaches the fundamental principle of nemo iudex in causa sua (Latin meaning ‘no one may be a judge in their own cause’). That is normally a ground for automatic disqualification of a decision-maker: see R (CPRE Somerset) v South Somerset District Council [2022] EWHC 2817 (Admin) at [21] per Chamberlain J. However, the appellant, accepting that it is inevitable under the legislation that the Commissioner must decide complaints about himself, argues that this fact of apparent bias should lead a Tribunal in such cases not to afford any respect to the views of the Commissioner as the expert regulator and to approach the Commissioner’s case with scepticism.

The Commissioner in response argues that the Commissioner was neither apparently nor actually biased in this case and the Tribunal was right to give the appellant’s argument short shrift. The Commissioner contends that there is nothing in the appellant’s case that comes close to meeting the test in Porter v Magill [2002] 2 AC 357 that “the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the [decision-maker] was biased”. The Commissioner emphasises that the Commissioner is the statutory regulator with institutional competence conferred by Parliament and has a staff of more than 500 individuals undertaking different regulatory functions. The Commissioner submits the fair-minded and informed observer would not consider that the complaints-handling officers were apparently biased when dealing with complaints about other departments. He refers to Runa Begum v Tower Hamlets London Borough Council [2003] UKHL 5, [2003] 2 AC 430, concerning the lawfulness of the scheme under the Housing Act 1996 whereby the right to a review of the local authority’s decision on a person’s eligibility for housing lies internally to another local authority officer.

In Runa Begum the Supreme Court held that the scheme was not incompatible with Article 6 of the European Convention on Human Rights because these were administrative functions, and the exercise of administrative functions did not require a direct right of appeal to an independent and impartial tribunal. Article 6 was satisfied by dint of the availability of a right to review of that administrative decision by a court with full jurisdiction of fact and law. At [46] the Supreme Court specifically considered and rejected the suggestion that an appearance of bias by the internal reviewing officer might be avoided by contracting out the review function.

Mr Metcalfe also refers to Field v London Borough of Barnet [2004] EWCA Civ 1307, which concerns the same scheme and in which the argument was whether, notwithstanding the Supreme Court’s decision in Runa Begum, the decision of the internal reviewing officer was vitiated by apparent bias, whether generally because the reviewing officer was another reviewing officer or, in Barnet’s case, because it was the same officer who took the first decision (Barnet only employing one reviewing officer). The Court of Appeal in that case held that there was no apparent bias as a result of a review being carried out ‘in house’ or even by the same decision-maker. The Court of Appeal alluded to its own practice of allowing the judge who had refused permission on the papers also to sit on the hearing of a renewed oral application for permission. See [44].

The Commissioner further submits, in reliance on R (Hussain) v Sandwell Metropolitan Borough Council [2018] PTSR 142 at [154] that “proof of actual bias may be exceedingly difficult to establish” and requires “drawing a causal connection between the biased state of mind and the decision”. The Commissioner submits there was no such evidence in this case and the Tribunal was right so to conclude.