The Information Commissioner v Gary Spiers

A certification-for-contempt application under rule 7A of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 is a separate proceeding from the information-rights appeal which gave rise to it. A person who was a party to the appeal is therefore not automatically a party to the certification case.

The tribunal has a broad joinder power, but it should not compel a person to become a party without consent unless the decision may affect that person’s rights or interests. The overriding objective does not justify compulsory joinder merely because the person could provide useful, independent assistance. The Information Commissioner’s general functions under section 47 of the Freedom of Information Act 2000 do not give him an interest in enforcing a substituted tribunal decision notice.

Dr Gary Spiers applied to the First-tier Tribunal for certification of an alleged contempt by Garstang Medical Practice. He alleged non-compliance with a substituted decision notice made following his information-rights appeal.

The First-tier Tribunal joined the Information Commissioner to the certification proceedings and required submissions, including whether the Commissioner supported certification. It considered that the Commissioner’s regulatory role and the public interest in information rights made joinder just and appropriate.

The Commissioner appealed against that ruling. The Upper Tribunal had to decide whether the rule 7A application was separate from the earlier appeal and, if so, whether the Commissioner could lawfully be joined without consent.

1. Appeal allowed. The First-tier Tribunal’s ruling joining the Information Commissioner was erroneous in law. It was set aside under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007. The Upper Tribunal remade the ruling: the Commissioner was not to be joined to the certification proceedings.

2. A rule 7A application is a separate set of proceedings from the earlier appeal. The statutory references to the appeal proceedings and to proceedings giving rise to the application did not determine the point. Read with the definition of a certification case and rule 38, rule 7A(6) expressly treats a decision on the application as finally disposing of all issues in the proceedings comprising that separate certification case (paras [21]-[28]).

3. The Commissioner was consequently not already a respondent. He could become one only by joinder under rule 9. Although that power is broad, compulsory joinder of a non-consenting person should arise only where the decision may affect that person’s rights or interests. This is the principle drawn from the Upper Tribunal authorities and the ratio in Re Pablo Star Ltd [2017] EWCA Civ 1768 (paras [29]-[40]).

4. The First-tier Tribunal did not consider whether the Commissioner’s rights or interests might be affected. That was a material legal error and made the case-management ruling plainly wrong. The certification application alleged non-compliance by the medical practice, not by the Commissioner. Under Information Commissioner v Moss and the Royal Borough of Kingston upon Thames [2020] UKUT 174 (AAC), enforcement of a substituted decision notice is for the First-tier Tribunal. There was no dispute involving the Commissioner and no need for him to be bound by the result (paras [41]-[42]).

5. Section 47 of the Freedom of Information Act 2000 did not alter that conclusion. Its general duties to promote good practice and observance of the Act did not give the Commissioner an enforceable interest in a tribunal decision which, constitutionally, the tribunal itself must enforce. The tribunal could potentially have invited the Commissioner to assist as an amicus on general matters, but it could not require him to be a party; an amicus should not express a view on whether the application succeeds (paras [43]-[45]).

• Upper Tribunal (Administrative Appeals Chamber): Allowed the Information Commissioner’s appeal, set aside the First-tier Tribunal’s joinder ruling, and remade it by refusing joinder: [2022] UKUT 93 (AAC).

• First-tier Tribunal (General Regulatory Chamber): In certification proceedings EJ/2021/0001, joined the Information Commissioner to Dr Spiers’s rule 7A application and required submissions. That ruling was set aside.