[2025] UKUT 076 (AAC)

I will take each of the arguments in turn, though in my judgement the third part of Mr Greenwood’s third argument and the ICO’s arguments fall to be taken together.

In my judgement , the FTT did not err in law in treating the Met Police’s request under rule 17(1) of the GRC Rules as a request to withdraw its appeal from the FTT. It was the Met Police, and the Met Police alone, that withdrew its case from the FTT, and in context that ‘case’ was the Met Police’s appeal.

Mr Greenwood sought to contrast the use of the word “case” in rule 17(1) with the word “appeal” as addressed by the Upper Tribunal in Anwar (rule 17(1): withdrawal of appeal) [2019] UKUT 125 (IAC). He argued that the use of the word ‘case’ must mean something different from ‘appeal’, because the draughtsperson of the GRC Rules could have used the word ‘appeal’ but had not done so and that election had to be seen as being a deliberate choice which meant that rule 17(1) of the GRC Rules was not about allowing the appeal to be withdrawn. An appeal was a necessary step to found the FTT’s jurisdiction under section 58 of FOIA, but once made the appeal could not be withdrawn from the FTT. Absent a consent order under rule 37 of the GRC Rules, all the Met Commissioner could do was withdraw his case on the appeal, but it remained for the FTT to decide the appeal. It followed, so Mr Greenwood argued, that the Met Police’s withdrawal of its case did not mean that the ICO’s Decision Notice of 20 June 2023 remained in place. This was because the appeal had not been withdrawn (it was just the Met Police’s case on the appeal that had been withdrawn), and section 50(6) of FOIA, accordingly, had nothing to bite on.

Mr Greenwood also sought to draw support for this argument from the terms of rule 17(6) of GRC Rules. He argued that the distinction between rule 17(1) and 17(6) had to be respected and it was only under the latter that the proceedings are withdrawn. Nothing in rule 17 provided that where a party’s case had been withdrawn, the proceedings were at an end.

The rule in issue in Anwar was rule 17 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (“the IAC Rules”), which provided as follows:

“Withdrawal

17.—(1) A party may give notice of the withdrawal of their appeal—

(a)

by providing to the Tribunal a written notice of withdrawal of the appeal; or

(b)

orally at a hearing,

and in either case must specify the reasons for that withdrawal.

(2)

The Tribunal must (save for good reason) treat an appeal as withdrawn if the respondent notifies the Tribunal and each other party that the decision (or, where the appeal relates to more than one decision, all of the decisions) to which the appeal relates has been withdrawn and specifies the reasons for the withdrawal of the decision.

(3)

The Tribunal must notify each party in writing that a withdrawal has taken effect under this rule and that the proceedings are no longer regarded by the Tribunal as pending.”

As the Immigration and Asylum Chamber of the Upper Tribunal recognised in Anwar, the wording of rule 17(1) in the IAC Rules is different from the wording used in the GRC Rules (and, for example, the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008). Firstly, the IAC Rules refer to the “appeal” instead of a party’s “case” being withdrawn. Secondly, no consent is required from the First-tier Tribunal for the appeal to be withdrawn under the IAC Rules. However, I do not see anything in the wording of rule 17(1) of the IAC Rules, dealing as it is with appeals concerning different statutory provisions, which mandates that the word “case” cannot mean or include “appeal” when it is used in the GRC Rules. The use of the word “case” may be a deliberate choice by the draughtsperson, but it is not obvious that that was done, and only done, to delineate it in contradistinction from “appeal”. The more obvious reason, in my judgement, for the draughtsperson using the more protean word “case” is to enable it to cover the arguments (or cases) of all potential people or bodies other than the appellant who may be parties on an appeal to the General Regulatory Chamber of the FTT.

By way of example, the ICO as a party to such an appeal might wish to withdraw his support for the part of the Decision Notice which had found one exemption within Part 1 of FOIA had been breached by a public authority, but wish to continue to maintain another exemption on which the Decision Notice had relied. Another example would be a respondent public authority which wished to resile in whole or in part from its opposition to a requestor’s appeal. If rule 17(1) of the GRC Rules used the word “appeal” instead of “case”, neither respondent in these examples would have any mechanism from withdrawing their case on the appeal before the FTT.

In Anwar the appellant’s ‘case’ was their ‘appeal’ against the respondent’s decision. Moreover, as I understand it, there could only be one respondent to such an appeal (the Secretary of State for the Home Department). Therefore rule 17(2) provided for the other outcome on the appeal in the hands of the other party to the appeal, that being the withdrawal of the decision under challenge. The IAC Rules therefore had no need to use the word ‘case’.

The equivalent of rule 17(2) of the IAC Rules is rule 17(6) of the GRC Rules. The purpose of rule 17(6) is similar to rule 17(2) of the IAC Rules. It allows for the respondent who made the decision (or act) to which the appeal proceedings relate to bring those proceedings to an end by revoking or withdrawing the decision (or act) under appeal. That action, however, is separate from and different to the respondent(s) withdrawing all or part of their case(s) on the appeal. Perhaps most obviously in a FOIA context, the respondent whose decision is under appeal is the ICO and so it is only the ICO who could invoke rule 17(6) in an appeal under sections 57-58 of FOIA. Rule 17(6) would have no application to a respondent public authority in such a FOIA appeal, but rule 17(1) would usefully enable such a respondent public authority to amend its defence on the appeal.

Insofar as emphasis was placed on rule 17(6) of the GRC Rules expressly providing that the consequence of the decision under appeal being withdrawn or revoked is that the proceedings are (save for good reason) treated as withdrawn, whereas rule 17(1) is silent on such a consequence, such silence does not in my judgement show that the appeal proceedings cannot be withdrawn under rule 17(1). For the reasons I have given already, rule 17(1) has a wider application than just the withdrawal of the appeal by the appellant, whereas by contrast rule 17(6) has a narrower focus on the decision under appeal no longer existing. But withdrawal of a party’s ‘case’ under rule 17(1) includes an appellant withdrawing their appeal, and in such a situation the consequence is (if the FTT provides its consent) that the appeal proceedings are withdrawn. That consequence will not arise under rule 17(1), however, if a public authority withdraws all of part of its response (i.e. defence) to the appeal, and that is why rule 17(1) is not couched in terms of all withdrawal acts made by a party under it sounding in the appeal proceedings being withdrawn.

I am mindful, too, that in construing the GRC Rules it needs to be borne in mind that they are not just concerned with appeals under FOIA. Moreover, and perhaps most pertinently, they also extend to applications which are not founded on any “appeal” being made. Under rule 25A of the GRC Rules, it is an “application”, not an appeal, which is made by a charity or charity trustees for an order under section 324A of the Charities Act 2011. The requirement of the GRC Rules is that these Charities Act 2011 ‘authorised costs’ proceedings are begun not by an appeal but by an application: see rule 25A(2) of the GRC Rules. It is obvious, why the use of the Anwar word “appeal” in rule 17(1) of the GRC Rules would be inapt in such authorised costs proceedings, as no appeal is involved. However, a charity may wish to withdraw its application for an authorised costs order from the FTT and the use of the generic word “case” in rule 17(1) allows it to do so. This has nothing to do with the FTT retaining any jurisdiction on the application (and even less so on any appeal).

Coming back to appeals under FOIA, however, perhaps the strongest pointer against Mr Greenwood’s first argument, is the terms of section 50(6) of FOIA. I say this because under section 50(6) of FOIA Parliament has expressly contemplated that an appeal can be withdrawn. However, on Mr Greenwood’s thesis an appeal once made cannot be withdrawn by the appellant (under rule 17(1) or otherwise) and it may only be disposed of by the FTT either deciding the appeal or by a consent order under rule 37 of the GRC Rules. So to construe rule 17(1) would put it sharply and obviously in conflict with section 50(6) of FOIA, and the language of rule 17(1) gets nowhere close to compelling such a result.

An additional difficulty with Mr Greenwood’s argument is that it would undermine much of the practical effect of rule 17(2). If an appeal once made cannot be withdrawn, and has to be decided by the FTT (absent a consent order), it is less easy to see what would engage the need for the adjudicatory consent of the FTT to the appellant’s ‘case’ being withdrawn.

In summary, the word “case” in rule 17(1) of the GRC Rules covers all or part of an appellant’s appeal, a respondent’s “response” to the appeal (per rule 23 of the GRC Rules), and an application by a charity for an authorised costs order under section 324A of the Charities Act 2011. The ‘case’ the Met Police was seeking the consent of the FTT to withdraw was its appeal and the FTT did not err in law in treating it as such.

I should add finally on this ground of appeal that the ICO referred me to paragraph 10.1 of the Explanatory Memorandum to the Tribunal Procedure (Amendment) Rules 2021. These amendment rules, amongst other things, added in paragraphs (6)-(10) to rule 17 of the GRC Rules. Paragraph 10.1 of explanatory memorandum refers to these amendments as having been “made in relation to the withdrawals of appeals”, and that the proposed amendments had been the subject of consultation by the Tribunal Procedure Committee (“the TPC”). The TPC’s consultation was also relied on before me by the ICO. He founded in particular on the TPC’s view as set out in paragraph 12(i) of the consultation document.

“12.

There are presently 4 ways in which an appeal may be disposed of in the GRC upon the decision under appeal being revoked/withdrawn.

(i)

Withdrawal of the appeal under GRC rule 17

(ii)

Non-opposition to the appeal

(iii)

Consent Order encompassing either (i) or (ii)

(iv)

Strike out of the appeal under GRC rule 8”

The ICO argued that the TPC’s view about the scope of rule 17(1) of the GRC Rules prior to the amendments to rule 17 was persuasive. There may be some force in this submission given it is for the TPC to make the Tribunal Procedure Rules: see section 22(2) of the Tribunals, Courts and Enforcement Act 2007. However, the explanatory memorandum to any legal instrument has no more than a secondary role in deciding the intended scope of the legal provision itself (see paragraph [30] of R (O) v Secretary of State for the Home Department [2022] UKSC 3; [2023] AC 255); and here the explanatory notes and the TPC’s consultation are at further remove as they are not about the meaning of “case” in rule 17(1). The Upper Tribunal’s primary function is to construe the words of the legal instrument or rule in their statutory context: R (O) at paras; [29]-31]. Given this, I do no more than note that the TPC’s view about rule 17(1) of the GRC Rules accords with the one to which I have (already) come about rule 17(1).

The appeal therefore fails on this ground.

I am satisfied, however, that the appeal should succeed on this second ground. In my judgement, rule 32(1) of the GRC Rules required the FTT to hold an oral hearing before it made its rule 17(2) decision consenting to the Met Police withdrawing its appeal to the FTT. My reasons for coming to this conclusion are as follows.

First, none of the exceptions to rule 32(1) found in rule 32(1A)-(4) applied. This is more than a forensic observation. It is an important consideration in interpreting rule 32(1) because the exemptions from the requirement to hold an oral hearing before making a decision which disposes of the proceedings found in paragraphs (1A)-(4) of rule 32 show that the draughtsperson has had specific regard to the class of cases that should not be subject to the oral hearing requirement in rule 32(1) and has set those exempt classes of case out in the GRC Rules. The FTT ‘giving’ (to use a neutral word at this stage) its consent to the withdrawal of an appeal under rule 17(2) does not fall within any of the specified exemptions found in rule 32 of the GRC Rules.

Second, three matters arise under rule 32(1): (i) was the FTT on 16 January 2024 making a decision, (ii) if it was a decision, did that decision dispose of (the appeal) proceedings, and (iii) had each party consented to the matter being determined without a hearing?

As to the first issue under rule 32(1), in my judgement the FTT was making a decision on whether to consent to the Met Police withdrawing its appeal. That involved the FTT in adjudicating on that matter. That such adjudication was needed results from the word “consent” itself. The result was not automatic, or as is sometimes said ‘self-executing’, on the Met Police’s application to withdraw its appeal. Moreover, the context makes the need for a decision more obvious as Mr Greenwood had put forward detailed arguments opposing that decision being taken and the ICO had indicated that withdrawal was not an appropriate means of dealing with the appeal. I may add that none of the parties before me argued that the FTT was not deciding whether to consent to the Met Police’s appeal being withdrawn under rule 17(2).

If authority is needed in support of the conclusion that the FTT was making a decision under rule 17(2) of the GRC Rules, it can be found in paragraphs [36]-[37] of AMA v Greater Manchester West Mental Health NHS Foundation Trust and others [2015] UKUT 36 (AAC) and paragraph [29] of VS v St Andrew’s Healthcare [2018] UKUT 250 (AAC). Both those decisions concerned rule 17(1) and (2) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, which concerned (as here) the FTT “consenting” to a party in mental health proceedings withdrawing their “case”. In AMA and in VS the FTT’s task was described, respectively, in this way:

Setting the issue of the oral hearing to one side, I accept Mr Greenwood’s argument that the FTT erred in law in failing to take account of the ICO’s lack of support for withdrawal of the appeal when it consented to the appeal being withdrawn. I also accept the ICO’s arguments that the FTT erred in law in its consideration of the Met Police’s request to withdraw its appeal. All these arguments are in my judgement just different ways of making the same point about the FTT’s failure to grapple properly with the consequence of the appeal being withdrawn.

I do not accept, however, Mr Greenwood’s argument that a relevant consideration for the FTT was Mr Greenwood’s inability to use the FTT to enforce compliance with an FTT decision if the appeal was withdrawn. The use of the FTT’s ‘enforcement’ mechanism under rule 7A of the GRC Rules is, as I have already noted, a separate set of proceedings (see Spiers). In this case those separate proceedings would only arise once the appeal proceedings had been decided and if the FTT had ordered the Met Police to do something and it was then argued the Met Police had not complied with that order. Until that stage had been reached, however, the issue of enforcement by the FTT of a potential future breach was legally irrelevant to the issues that arose on an appeal under section 58 of FOIA. This is underscored by the fact that unless and until the FTT has made a decision on a section 57 appeal and substituted a Decision Notice under section 58(1)(b) of FOIA, the only Decision Notice is the Information Commissioner’s and enforcement of the Information Commissioner’s Decision Notice is a matter for the Information Commissioner: per Information Commissioner v Moss and the Royal Borough of Kingston upon Thames [2020] UKUT 174 (AAC).

Reverting to the FTT’s consideration of the arguments for and against withdrawal, and putting Mr Greenwood’s arguments to the FTT against withdrawal aside, in my judgement a clear error was the FTT’s failure to show that it had had any regard to the ICO’s view of 12 June 2024 that the appeal was not amenable to withdrawal. The FTT, as shown by its reasoning, at no stage grappled with this concern. Taking account of the ICO’s view is not an empty procedural formalism. The ICO’s inhabits what has been described as the role of “guardian” in respect of FOIA: see paragraph [33] of Browning v ICO and Department for Business, Innovation and Skills [2014] EWCA Civ 1050; [2014] 1 WLR 3848, as well as section 47(1) of FOIA. In paragraph [51] of Lubicz v ICO and Kings College [2015] UKUT 555 (AAC) the ICO was described as:

“…unlike other parties. He is an independent regulator and has a role in assisting in or ensuring the proper administration of the FOIA regime. As such, his role in tribunal proceedings is not to defend his decisions come what may….”

Given the ICO’s role in ensuring the proper administration of the FOIA regime, the concern he expressed about the appeal being withdrawn needed to be addressed by the FTT.

Moreover, the concern expressed by the ICO on 12 June 2024 was an obvious and, in my view, a correct one. This only added the need for it to be addressed by the FTT. To turn the language the FTT used in paragraph 26 of its consent to withdraw decision around, there was a good other reason to refuse to consent, and that reason was the ICO’s concern that the Met Police’s appeal was not amenable to withdrawal.

That concern was based, as I see it, on the following relevant considerations. Withdrawal of the appeal would leave the Information Commissioner’s Decision Notice of 20 June 2023, and the steps the Met Police were required to take under that notice, intact (per section 50(6) of FOIA). Without the FTT substituting an alternative Decision Notice, which could only occur under section 58(1)(b of FOIA if the appeal was not withdrawn, the ICO could not substitute any alternative Decision Notice: see Malnick. However, the ICO’s Decision Notice remaining in place was, on the face of it, not a result which either the Met Police or the ICO considered was the correct one. That much is and was obvious from the ICO’s changed view about the merits of Met Police’s appeal, which itself was based on the Met Police having advanced a more particularised (or changed) basis for its reliance on sections 30, 31 and 38 of FOIA during the course of the appeal proceedings. In other words, the ICO was of the view that a different Decision Notice, one which upheld the Met Commissioner’s decision, was merited. However, that result could obtain only if the appeal proceedings continued and led to a decision under section 58 of FOIA. It could not arise if the appeal was withdrawn.

In a sense, Mr Greenwood’s arguments to the FTT for why the Met Police should not be allowed to withdraw its appeal engaged, albeit perhaps obliquely, with this same point. Mr Greenwood’s concern about the fresh arguments the Met Police had seemingly persuaded the ICO about in the course of the appeal proceedings was with the merits of those ‘new arguments’. However, what I have termed the Met Police’s new arguments had no real relevance in the appeal proceedings unless and until the FTT had dealt with those new arguments on the appeal, accepted them and allowed the Met Police’s appeal, and substituted a new Decision Notice under section 58(1)(b) of FOIA to the effect that the Met Police was entitled to rely on the relevant exemptions in section 30, 31 and 38 of FOIA (as well as section 40) and was not required to provide Mr Greenwood with any further information under FOIA.

It may be that this is what the FTT was driving at when it said that when dealing with an appeal under section 58 of FOIA its focus was “on the Decision Notice itself” and its role was to decide if that Decision Notice was not in accordance with the law, withdrawal would mean the ICO’s Decision Notice would stand and Mr Greenwood’s concern about the Met Police’s ‘new arguments’ was [therefore] not an issue for the FTT on the appeal. However, what this fails to grapple with is why it was appropriate under FOIA (that is, in accordance with Part I of FOIA) to keep that original Decision Notice in place.

I also accept there is merit in the ICO’s argument that the FTT’s formulation of its jurisdiction under section 58 of FOIA appears to have been too narrow. On an appeal in respect of a section 50 FOIA Decision Notice, the FTT exercises a full merits reconsideration as to what the correct decision should be: Malnick at paragraphs [45]-[46]. This reconsideration should take account of new arguments (e.g., as to exemptions) made by the parties in the course of the appeal proceedings. The FTT’s jurisdiction was not therefore limited to whether the Decision Notice itself had been correctly decided. Mr Greenwood’s concern about what the correct position ought to have been was, therefore, an issue for the FTT on the appeal and was, as a result, relevant to whether to decide to consent to that appeal being withdrawn.

In the end, as I have said already, the point made in the last paragraph may be doing no more than making the point again that Mr Greenwood’s concerns about the Met Police’s ‘new arguments’ (and the ICO’s view that withdrawal was not an appropriate remedy) were matters which were relevant to whether the FTT ought to consent to the appeal being withdrawn. The FTT exercises an inquisitorial jurisdiction to ensure that “FOIA is properly applied in the circumstances” (see Lownie v ICO, National Archives and the FCO [2020] UKUT 32 (AAC) (at paragraph [31]) and Browning v IC and DBIS [2013] UKUT 236 (AAC) (at paragraph [60]). That investigatory function was needed in this case in circumstances where neither the Met Police or the ICO were supporting the Decision Notice of the ICO and where Mr Greenwood had advanced detailed arguments for why the new stance of the Met Police and the ICO was not in accordance with Part I of FOIA.

Given the errors of law made by the FTT, its consent to withdraw decision must be set aside. I am satisfied I can remake that decision. Largely for the reasons I have set out above, I remake that decision by refusing to consent to the Met Police withdrawing its appeal from the FTT. In summary, I refuse to consent to the appeal being withdrawn because to do so would leave a Decision Notice in place which neither the Met Police nor the ICO considers is the correct Decision Notice.

Mr Greenwood’s argument in opening that I should also redecide the substantive appeal of the Met Police under section 58 of FOIA, was not maintained in his closing arguments. I refuse to do so in any event. The first reason why I refuse to do so is because that appeal has not been decided by the FTT and section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 only empowers me to re-make a decision. There is no substantive decision on the section 58 appeal for me to remake as it has yet to be made in the first place by the FTT. Secondly, and even if this first point is wrong, redeciding the first instance appeal needs to wait until another day, whichever tribunal is to redecide it. Once this point is reached, the FTT is the expert evaluative body charged with deciding such appeals (see Natural England v Warren [2019] UKUT 300 (AAC); [2020] PTSR 565 at paragraph [189]), and all parties should be able to have the appeal decided by that tribunal.

I add finally that as the Met Police has not had its appeal struck out under rule 8 of the GRC Rules, and nor has the ICO been debarred from any taking further part in the FTT appeal proceedings under rule 8, there is no warrant for the claim made at one stage on behalf of Mr Greenwood that both the Met Police and the ICO should not be able to participate in the FTT appeal.