The Strange Saga Of The Information Commissioner’s Reappointment

On July 13, 2021, the following notice appeared in The London Gazette:

THE QUEEN has been pleased by Letters Patent under the Great Seal of the Realm dated 9 July 2021 to re-appoint Elizabeth Anne Denham, to be the Information Commissioner, for a further period of three months and thirteen days commencing on the 18 July 2021.

This seemingly innocuous statement was the start of a bizarre saga that ultimately resulted in the Government admitting that the Letters Patent were a legal nullity.

Denham became Information Commissioner on July 18, 2016 under the provisions of the Data Protection Act 1998. Her appointment was for a five-year term; however, the Data Protection Act 2018 repealed the 1998 Act and extended her term until July 2023.[1] Crucially, the 2018 Act also established that the Information Commissioner cannot be reappointed.[2]

In January 2021, the Department for Digital, Culture, Media and Sport (DCMS) announced that Denham had agreed to extend her term of office until October 31, 2021 in order to allow time for the recruitment of her successor (why this was necessary when her term didn’t end until 2023 was not addressed). The Letters Patent of July 9, 2021 purported to give effect to Denham’s decision (though due to a miscalculation, the extension granted by the Letters Patent only runs until October 30, 2021).[3]

The day after Denham’s reappointment was gazetted, Rich Greenhill wrote to the ICO to ask how it could be squared with the provisions of the Data Protection Act 2018. The ICO’s response claimed that, despite the wording of the Gazette notice, Denham had not, in fact, been reappointed.[4] Unsatisfied with that response, Greenhill informed the DCMS that he would seek judicial review of the Letters Patent on the grounds that they were unlawful.[5]

Remarkably, the Government Legal Department responded on September 10 conceding that the Letters Patent of July 9 were indeed unlawful. However, because they were a legal nullity, they argued that this obliviated the need for judicial review. They also stated that, since Denham had asked to be relieved of office with effect from December 1, 2021, any judicial review would be purely academic in nature.

The Government’s actions here are unlikely to be nefarious, but it’s still an unfortunate turn of events. Either the DCMS didn’t realize they were violating the 2018 Act, or they didn’t care. Neither option is particularly attractive. Also, this isn’t the first time this Government has asked the Queen to do something that has later turned out to be a legal nullity. This probably won’t generate the same furor as the 2019 prorogation controversy, but it’s certainly not helpful for the Palace.

It goes without saying that ministers shouldn’t advise the Sovereign to perform unlawful acts. Even though constitutional convention dictates that the blame lies with the minister, it puts the Sovereign in an incredibly awkward position. Their ability to resist unlawful advice is limited. While the Monarch may ask a minister to reconsider their advice, they are generally obliged to accept that advice if the minister persists. There are of course situations where the Sovereign is arguably entitled to refuse advice, but they are exceptional. The Monarch cannot (and should not) be expected to police the constitution on a day-to-day basis.[6]

This might not be the end of the story, either. The Government’s insistence that the Letters Patent don’t need to be formally rescinded is problematic: Jon Baines of Mischon de Reya has suggested it could lead to questions about the validity of Denham’s actions during the remainder of her term. The consequences of the Government’s unforced error could continue to reverberate for some time.

[1] See Schedule 20(19).

[2] See Schedule 12(2)(4).

[3] Rich Greenhill to the Secretary of State for Digital, Culture, Media, and Sport, 17 August 2021, 11

[4] Greenhill, 15-17.

[5] Greenhill, 1. He argues that, since the Crown cannot revoke the Letters Patent at common law and none of the statutory mechanisms for removing the Information Commissioner from office have been triggered, judicial review is the only remedy. In the past, the writ of scire facias could be used to obtain the revocation of Letters Patent, but this writ has been abolished. Despite this, Greenhill submits that modern judicial review could be substituted for the former proceedings.  

[6] It’s worth remembering that, unlike an American president, there are few formal checks on the Sovereign’s power. If, for example, the Monarch refused to accept ministerial advice, there would be no constitutional mechanism to circumvent their decision beyond the government resigning in protest.  

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