[2025] UKUT 74 (AAC)

My concerns about the Tribunal’s self-directions as to the law

My first concern is this: the Tribunal in the present case at [10] and [11] directed itself that it had to consider whether it had “a good reason to interfere with the Commissioner’s regulatory judgment”. However, what the Upper Tribunal in Killock and Veale decided is the task for the Tribunal on a section 166 application is that the Tribunal must decide for itself, applying an objective test, what is “appropriate” by way of investigation: see [84]. The Upper Tribunal made clear that the Tribunal is not merely to review the Commissioner’s decision as the High Court would on an application for judicial review.

It would have been better if the Tribunal in the present case had given itself an explicit direction to that effect. As it is, the phrase “a good reason to interfere with the Commissioner’s regulatory judgment” has been taken by the Tribunal out of context from [86] of Killock and Veale. What the Upper Tribunal in Killock and Veale said at [85]-[86] was that, in deciding for itself whether a step is “appropriate”, the Tribunal must take account of, and give weight to, the view of the Commissioner as an expert regulator on any matter “where it is established that the Commissioner has exercised a regulatory judgment”.

The danger in the Tribunal’s self-direction only to consider whether there is “good reason to interfere with the Commissioner’s regulatory judgment” is that it makes it look at first blush as if the Tribunal is applying a judicial review approach of reviewing the Commissioner’s decision rather than an objective test as the Upper Tribunal in Killock and Veale held was required.

My second concern is that the Tribunal has also at [9] quoted from [76] of the Upper Tribunal’s judgment in Killock and Veale, which is not actually the part of the judgment that was relevant in this case. Paragraph [76] of Killock and Veale is in the part of the judgment discussing the dividing line between the High Court’s role on judicial review and the remedy available under section 166. The Upper Tribunal was there referring to the Commissioner being in the best position as the expert regulator to consider the merits of the complaint by way of explanation as to why the Tribunal’s jurisdiction under section 166 does not extend to the merits of the complaint at all. The relevant paragraphs of Killock and Veale for the Tribunal’s purposes in section 166 cases are [85] and [86]. At [85] the Upper Tribunal sets out what the relevant expertise of the Commissioner is so far as concerns the procedural aspects of complaints handling with which the Tribunal is concerned under section 166. By way of reminder, what the Upper Tribunal said in that paragraph was:

… in the sphere of complaints, the Commissioner has the institutional competence and is in the best position to decide what investigations she should undertake into any particular issue, and how she should conduct those investigations. As Mr Milford emphasised, her decisions about these matters will be informed not only by the nature of the complaint itself but also by a range of other factors, such as her own regulatory priorities, other investigations in the same subject area and her judgment on how to deploy her limited resources most effectively.

At [85], the Upper Tribunal thus holds that the Tribunal must, when deciding objectively whether any (further) appropriate step needs to be taken by the Commissioner, take into account and give weight to the views of the Commissioner as an expert regulator. At [86] the Upper Tribunal explains that it does not mean that the Tribunal must regard all matters before it as matters of regulatory judgment – it is those matters identified in the passage I have just quoted which constitute matters of regulatory judgment so far as the investigative process is concerned (i.e. regulatory priorities, other investigations in the same subject area and deployment of resources). The Upper Tribunal explains at [86] that it is only in respect of those matters where it is established that the Commissioner has exercised a regulatory judgment that the Tribunal will need “good reason to interfere” and “cannot simply substitute its own view”. The Upper Tribunal added that the extent of respect due to the Commissioner’s view “may in turn depend on the degree of regulatory judgment involved”.

Although I have those concerns about the Tribunal’s decision in this case, there is in fact no ground of appeal that argues that the Tribunal has erred in law in the respects I have identified as troubling. And I am satisfied that, when the decision is read as a whole, it is apparent that the Tribunal has in fact properly taken an objective approach in this case and made up its own mind about appropriateness. Thus at [12], it applied its own mind to the question of the 7 February 2023 email and considered for itself what it meant and in [13] it expresses itself to be satisfied that the Commissioner has taken adequate steps to investigate in terms that indicate it has considered that for itself rather than merely reviewing the Commissioner’s approach. Further, although the Tribunal has failed to consider explicitly which aspects of the Commissioner’s approach in this case constitute the exercise of regulatory judgment and which do not, it has in practice properly taken the approach of regarding the Commissioner’s decisions about how much investigation to do as being part of the Commissioner’s regulatory competence about deployment of resources, with which it should not interfere unless there is “good reason” to do so.