Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

In respect of First-tier Tribunal decision reference EA2010/0053 (the MoJ’s appeal), Mr Bell was not a party and has no right to appeal to the Upper Tribunal.

In respect of First-tier Tribunal decision reference EA/2010/0061 (Mr Bell’s appeal), the decisions of the First-tier Tribunal did not involve the making of an error on a point of law.

Reasons for Decision

1.          Although I have dismissed these appeals, I have been concerned at the procedure followed by the First-tier Tribunal, as was Upper Tribunal Judge Wikeley who gave permission to appeal.

2.          Mr Bell is ultimately concerned about a speeding conviction, which he thinks was unfair. This led him to be concerned about judges who had sworn oaths of loyalty that might conflict with their judicial duties, specifically Freemasons. Further to this concern on 15 August 2008, he requested the MoJ for information:

3.          The MoJ replied on 5 September 2008 that the information was exempt under section 40(2) of FOIA, which covers personal data of persons other than the requester of the information. On 12 December 2008, Mr Bell complained to the Commissioner, who gave the following order to the MoJ on 8 February 2010 under reference FS50227348:

4.          Both the MoJ and Mr Bell lodged appeals against this decision. They were registered with separate numbers. There is an issue whether these were consolidated into one case. I will deal with that later. For the moment, I will treat them separately.

5.          Mr Bell’s appeal was made on the appropriate form supplemented by further grounds covering four and a half pages with 10 enclosures. In the Grounds for Appeal section of the form, he set out two poems and 17 proverbs from hell. In his supplementary grounds, he referred to a range of matters including the effect of Freemasons on his planning applications and speeding conviction, problems with the administration of the courts, the delay in providing the information requested, his health, the requirements for courts to be impartial, and group dynamics. This list is not intended to be exhaustive.

6.          The First-tier Tribunal made three decisions. On 24 June 2010, the First-tier Tribunal struck out Mr Bell’s appeal on two grounds. One was that it was not possible to appeal against a decision in the appellant’s favour. The other was that the issues that Mr Bell wanted to raise were outside the jurisdiction of the First-tier Tribunal. This is the first decision. The judge refused to recuse himself from hearing the MoJ’s appeal. This is the second decision. The MoJ and the Commissioner agreed that the appeal should be allowed and on 8 October 2010 the First-tier Tribunal gave a decision by consent that

7.          Mr Bell applied for permission to appeal to the Upper Tribunal. The First-tier Tribunal refused his application, but Upper Tribunal Judge Wikeley gave him permission on three grounds. Under reference GIA/1882/2012, he gave permission on the issue whether the judge should have recused himself. Under reference GIA/1883/2012, he gave permission on the issues whether the First-tier Tribunal should have struck out Mr Bell’s appeal and approved the consent order.

8.          Judge Wikeley directed an oral hearing. It was held before me on 23 November 2012. Mr Bell appeared and spoke on his own behalf. Mr Robin Hopkins of counsel appeared for the Commissioner. Mr David Forsdick of counsel appeared for the MoJ, speaking to a skeleton argument by Mr James Maurici of counsel. I am grateful to all of them for their contributions.

9.          It is convenient to begin with the issue of the consent order.

10.       The right of appeal to the Upper Tribunal lies under section 11 of the Tribunals, Courts and Enforcement Act 2007. It may only be exercised by ‘any party’ to the First-tier Tribunal decision (section 11(2)). So, Mr Bell could only exercise that right if he was a party to the decision on the MoJ’s appeal. I have decided that he was not.

11.       Judge Wikeley gave permission on the basis that the two appeals had been consolidated under rule 5(3)(b) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (SI No 1976). On the information I have been shown, I respectfully take a different view. Judge Wikeley relied on emails of 17 March 2012 and 7 April 2010. They do suggest that the appeals were going to be consolidated, but other factors suggest that they were not. First, an email of 24 May 2010 referred to the cases as linked rather than consolidated. Second, the First-tier Tribunal never treated or referred to Mr Bell as a party to the MoJ’s appeal. Third and perhaps most important, I doubt whether the power to consolidate applied to the cases. Rule 5(3)(b) provides that the tribunal may:

12.       If my decision on this ground would have prejudiced Mr Bell, I would have reinstated his judicial review proceedings against this decision. But there is no prejudice, for reasons that become apparent later.

13.       There is nothing specific in this case to suggest any possibility of bias by the judge who made the decisions. The issue is whether his possible membership of the Freemasons gives rise to apparent bias. I have decided that it does not.

14.       The test, to quote Lord Hope in House of Lords case of Porter v Magill [2002] 2 AC 357 at [103], ‘is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.’ And the Court of Appeal in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 at [25] said that ‘Nor, at any rate ordinarily, could an objection be soundly based on the judge’s … Masonic associations …’ Neither case involved Freemasons. But the general principles are binding on me.

15.       I note that Newman J in the Administrative Court case of  R (Port Regis School Ltd) v North Dorset District Council [2006] EWHC 742 (Admin) at [34] decided specifically that ‘a fair minded observer, informed of the facts in connection with freemasonry which have been placed before this court and having regard to the circumstances of this case, would not conclude that there was a real possibility of apparent bias ...’ The European Court of Human Rights has also decided in Grande Oriente d'Italia di Palazzo Giustiniani v Italy (No 2) (Application 26740/02) at [53] that ‘there was no justification for penalising a person for belonging to an association when that membership was not in itself legally reprehensible …’ Consequently, members could not be required to disclose their affiliation. I accept that the facts of these two cases were very different from this case. However, the principles relied on are generally applicable. Even if they were not, I am bound by the Porter and Locabail cases.  

16.       Following the Italy (No 2) decision, the Lord Chancellor and Secretary of State for Justice in 2009 ended the practice of requiring judicial appointees to disclose membership of a lodge.

17.       On the basis of those decisions, being a Freemason is not of itself a ground for recusal. It is possible that it may provide such a ground in the circumstances of the specific case, but there is no evidence to support such a decision in this case.

18.       The First-tier Tribunal struck out Mr Bell’s appeal for two reasons. Counsel argued that the second ground alone was sufficient to justify the decision. However, I want to comment on the first ground as it raises a point of principle and is the cause of my concern about the procedure adopted by the First-tier Tribunal.

19.       The tribunal’s first reason for striking out the appeal was that ‘There cannot be an appeal against a decision wholly favourable to the appellant.’ In giving permission, Judge Wikeley quoted what he said in giving permission in GIA/1612/2010:

That principle, of course, is indeed well-established in legal proceedings (e.g. Lake v Lake [1955] P 336, Osaji-Uneaku & Anor v National Foundation for Teaching Entrepreneurship Inc [1999] EWCA Civ 837 and Social Security Commissioner’s Decision R(I) 68/53). However, that principle surely relates to judicial decisions by courts and tribunals; it does not necessarily apply to decisions by administrative first-instance decision-makers or independent office-holders. Section 57(1) [of FOIA] expressly confers a right of appeal on both parties, and not simply “the losing party” (however that term might be defined), before the Information Commissioner. Both the applicant, as the complainant, and the council, as the public authority, had the right to appeal the Information Commissioner’s decision to the First-tier Tribunal (see section 57(1) of the Freedom of Information Act 2000).

I add that it is possible in some circumstances for a successful party to appeal against a decision of a court or tribunal: R(U) 6/88 at [5]-[6]; Secretary of State for Work and Pensions v Morina [2007] 1 WLR 3033; and Office of Communications v Floe Telecom Ltd (in liquidation) [2009] EWCA Civ 47. I would identify a general principle uniting those decisions, which I would state as follows. A party who has an interest in doing so may pursue a right of appeal against a favourable decision. In all three cases, the appellant had such an interest. In R(U) 6/88, an independent decision-maker was appealing in the interests of a claim. In Morina, the decision-maker was challenging the jurisdiction aspect of a favourable decision. And in Floe Telecom, a regulator was appealing in order to remove uncertainty created by a favourable decision. There is no reason in principle to limit this approach to decision-makers and regulators. In this case, the First-tier Tribunal appears to have overlooked that Mr Bell had an interest in preserving the Commissioner’s decision in his favour, not least because the MoJ had also lodged an appeal. I regard that as sufficient to justify Mr Bell being involved in some way when the Commissioner’s decision favourable to him was the subject of an appeal. It troubles me that the judge showed no concern for the potential prejudice caused to Mr Bell by striking out his appeal without at least offering him the chance to become a party to the MoJ’s appeal. I regard that as a potential error of law.

20.       I accept, as counsel pointed out, that Mr Bell did not ever say that he wished to preserve the favourable decision that he had received from the Commissioner or ask to be made a party. However, those who represent themselves, however intelligent they may be, regularly fail to understand what may be in their own best interests. It is part of the role of the tribunal, embodied in the overriding objective in rule 2, to protect them. At least, that requires the tribunal to ensure that the decisions they make are properly informed. In some cases, it may require the tribunal to act contrary to the person’s wishes. What is required depends on the circumstances of the case.

21.       I have not overlooked this factor. If Mr Bell had been made a respondent to the MoJ’s appeal, he would have sought to raise his grounds of appeal. But the tribunal could have dealt with that by barring him from pursuing those grounds under rule 8.

22.       The tribunal’s other reason for striking out the appeal was that Mr Bell’s grounds were outside the tribunal’s jurisdiction. I accept the argument of counsel that the tribunal was entitled to strike out the part of the proceedings formed by those grounds.

23.       Parties often believe that a tribunal has power to deal with any issue that is connected with their concerns. That is wrong. Tribunals are statutory bodies. As such, they have only the jurisdiction given them by statute. In the case of the First-tier Tribunal’s jurisdiction in information rights, there is an appeal under section 57(1) of FOIA against the Commissioner’s decision notice. The essence of the tribunal’s power is to decide if the notice was in accordance with law: section 58(1)(a). And being in accordance with law essentially means this. The Commissioner was limited by the terms of the request. He had to decide whether the MoJ held information within the scope of the request. If it did, he had to decide whether or not it was required to disclose it. The Commissioner had no other role in this case. It was no part of the Commissioner’s role to decide that the authority should have collected information that it did not hold. And the limits on the Commissioner’s powers likewise applied to the tribunal on appeal.

24.       Much of what Mr Bell had written in support of his appeal was not on its face related to the request he had made. The judge was entitled to strike out the proceedings in so far as they related to those grounds. The remainder of the grounds were related to his request, albeit in a general way. The judge listened to Mr Bell’s oral argument at a telephone hearing. While admitting that he had not followed every step in the reasoning, he summarised the argument, which is the same as Mr Bell put to me. he argued that the information collected by the MoJ was inadequate because it did not cater for judges who has been members of the Freemasons in the past and who continued to recognise their oaths of loyalty. I also understood him to say that the judges should have been required to provide sworn answers to the questions asked. In other words, Mr Bell was complaining about the circumstances in which the information was collected and about information that was not held.  Both those matters were outside the Commissioner’s jurisdiction and the tribunal’s. The tribunal was entitled to strike out the proceedings in so far as they related to those grounds.

25.       So far, I have decided that:

26.       A mistake is only an error of law if it is material. A mistake is material if it made, or in some circumstances, may have made a difference to the outcome of the case: R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 at [10]. So, the issue is whether it would have made any difference if Mr Bell had been a party to the MoJ’s appeal. The answer is that it would not, because Mr Bell has lost interest in obtaining the information that was the subject of his original request. In the course of his presentation to me, I asked him three times for a straight answer to the question whether he still wanted the information. I listened carefully to his answers, but he never said that he did. Indeed, at one point he said that it would be dangerous to release the information held by the MoJ, as it would be misleading. When counsel had completed their submissions, I put the point to him again, especially in view of Mr Hopkins’ argument. I told him plainly, although perhaps unkindly, that I had found his earlier answers ‘evasive’. Again, he did not say that he wanted the information. This is consistent with his attitude when he was informed of the proposed consent order. My impression is that, having further considered the matter, Mr Bell realised that the information he originally sought was not adequate for his purpose and lost interest.

27.       There is also this factor, although it was not covered in the oral argument. Membership of the Freemasons is part of the judge’s personal data. The Freemasons are a lawful organisation. Accordingly, there would be no interest in disclosing membership, unless there was something in the circumstances of the case to show otherwise. In this case, there was not. In short, the decision embodied in the consent order was correct in law.