ICO procedural errors in handling Eldon/Leave EU investigation exposed

Speaking yesterday at a tribunal in London, Christopher Knight, counsel for the ICO in a three-day appeal hearing brought by Arron Banks-owned Eldon Insurance and Leave EU, said: “I don’t dispute there is room for criticism of the commissioner’s internal procedures and handling of aspects of this manner.”

He added: “I repeat the lack of documents around the assessment notice falls well below [expectations] of the commissioner.”

“I do, of course, accept the absence of decision-making documents in reference to these notices cannot be held up as a model of good governance and record keeping. I accept it falls short of the standards it should have been,” he continued.

“I also accept as a result I cannot ask for respect for my client’s reasoning where that reasoning is not readily before the tribunal,” Knight added.

During the course of the tribunal hearing, it was revealed that no internal documents existed illustrating any decision-making process prior to releasing 6 November 2018 notifications against Leave EU and Eldon Insurance.

The ICO was unable to provide any documentation to shows its considerations in the run-up to producing an assessment notice that would see the broker face an audit of its insurance data.

It also emerged that, following this lack of documentation, an internal memo was drafted days after key decisions had been made by 29 October, purporting to be a briefing note to advise the commissioner on taking these decisions. 

In addition it was revealed that a key draft document was held back by the executive and communications team at the ICO, to time its release at the time of a 6 November select committee hearing.

This was over a “matter of days,” Knight said. “The commission is not sitting on these for months on end.”

Media and select committee

Meanwhile the notifications were sent to journalists under embargo on 5 November at 5pm, before they were officially released, with Eldon and Leave EU receiving their copies just half an hour earlier, at 4.30pm, the tribunal heard.

It was also told that a Digital, Culture, Media and Sport select committee received the documents on 5 November, prior to its session on Disinformation and Fake News the following day.

At the select committee hearing, information commissioner Elizabeth Denham told the panel that Eldon and Leave EU had been fined after failing to report a breach; this was factually incorrect, the tribunal heard, as these were preliminary notices.

Denham told the committee: “Eldon Insurance stated in response to our information notice, as you said, that it reported that breach to us when information was shared between Leave EU and Eldon Insurance. We found no evidence of its report of such a breach, and you know that we have issued fines against Eldon Insurance under the Privacy and Electronic Communications Regulations regulation.”

Knight added that if Eldon and Leave EU had wished to dispute the wide-spread dissemination of the notice, the “correct process” at the time would have been to launch a judicial review.

Under cross-examination, ICO director of investigations Stephen Eckersley described the process as a “race to complete a piece of work”.

Eldon and Leave EU counsel Gerry Facenna argued that the ICO’s mistakes over the 18 month process were tantamount to “procedural unfairness in a public law sense,” and went so far as labelling the investigation a “sham.”

Due to the ICO’s handling of the case, Eldon had sustained “serious reputational harm,” Facenna said.

It was suggested that LV cut ties with the broker following the ICO’s involvement, though this was disputed by the ICO, as Eldon owner Arron Banks had courted further negative publicity, for example via a National Crime Agency investigation into Brexit campaign funding.

According to an NCA statement date 24 September 2019: “The NCA has found no evidence that any criminal offences have been committed under PPERA or company law by any of the individuals or organisations referred to it by the Electoral Commission. It will therefore take no further action against Mr Banks, Ms Bilney, Better for the Country Ltd or Leave EU in respect of this specific matter.

“This investigation has been subject to press and social media commentary.  The NCA has not received any evidence to suggest that Mr Banks and his companies received funding from any third party to fund the loans, or that he acted as an agent on behalf of a third party.”

LV declined to comment when contacted by Post.

Facenna added: “We know there is no reasoning, no decision. Eckersley accepted in his evidence that the person who took those decisions thought there had been internal documents [showing a decision making process]. We now know that was not the case. There are no documents.”

According to Knight, these errors “do not relate to matters of procedural fairness at all, rather to internal procedures”.

He added: “It is not a submission that has any basis. He [Facenna] is fully entitled to say and I accept that it falls short of best practice, but he is not entitled to claim it is a sham without any evidence.”

The commissioner’s representative was also forced to deny allegations that it had timed the release of the documents and investigation to “bulk up” its Investigation into the use of data analytics in political campaigns report, published the same day as the select committee hearing.

Hearing

The first-tier tribunal took place over a three day period earlier this week, with proceedings overseen by Judge Alison McKenna, alongside tribunal members Rosalind Tatam and Nigel Watson.

Eldon and Leave EU are appealing enforcement action by the ICO, in addition to the quantum of fines levied.

A decision is expected to be reached in February.

An ICO spokesperson said: “The ICO will not be commenting on ongoing proceedings until the decisions of the tribunal are published”.

Eldon and Leave EU have also declined to comment on the proceedings.