On July 9 of this year it was announced that the term in office of Elizabeth Denham, incumbent Information Commissioner, (which both she and the Department for Digital, Culture, Media and also Sport (DCMS), as the sponsor department, had thought expired on 17 July) had been extended by three months through the process of the issuing of Letters Patent (a notice in the London Gazette was published on 13 July).
But, in fact, her term had already been extended by statute - the provisions of the Data Protection Act 2018 have the effect of extending her term by a further two years from the five originally intended, when she was appointed in 2016.
In remarkable and forensic pre-action correspondence (on threat of an application for judicial review) Richard Greenhill shared his concerns with DCMS, and with the Information Commissioner as an interested party. Initial responses attempted to argue that the reappointment was not a reappointment (despite the clear terms of the announcement) but merely an “extension”, but upon further correspondence the DCMS has relatively rapidly conceded that the Letters Patent which conferred the purported July reappointment were in fact a “nullity”, and “of no legal effect”.
The consequence of this (and of the provisions of the Data Protection Act 2018) is that Ms Denham could continue in office until 2023, which would cause potential problems for the appointment of John Edwards, who has recently been confirmed as the next Commissioner. However, following the pre-action correspondence, Ms Denham has now asked to be relieved of office from December this year.
This incident raises serious rule of law issues. It seems that DCMS and the ICO Commissioner’s Office were unaware that the law had changed so as to extend the term automatically, yet attempts were made to extend it temporarily, by a process of purported reappointment or extension. Mr Greenhill quite reasonably points out that “The interpretation asserted by the DCMS and the ICO would allow the [Secretary of State] to re-appoint the officeholder in effect indefinitely, potentially in successive short periods”, with deleterious consequences for the concept of, and requirement for, regulatory independence.
And the matter may not entirely be over. What DCMS have not conceded, in the pre-action correspondence, is that there is any need to take steps to revoke the Letters Patent issued in July. They argue that as those Letters Patent had no legal effect (despite the Crown issuing them on the understanding that they did) they can simply stand, in their nullified state. This seems unsatisfactory and might well lead to further legal arguments about the validity of decisions taken by the Commissioner and ICO during the remainder of her term.
Mr Greenhill has kindly given permission for this Firm (which had no involvement and gave him no assistance) to publish the pre-action correspondence, for which we thank him:
Letter before claim