On 26 March 2014 the Supreme Court gave a lengthy judgment in Kennedy v Charity Commission  UKSC 20, running to 248 paragraphs. The Supreme Court decision is full of surprises. The Court decided to depart from the arguments of the parties- the majority insisted that common law rights rather than the Human Rights Act were the key to the case; and then embarked on an extended and wide ranging obiter discussion of public law issues, revealing further disagreements between the Justices.
Mr Kennedy, a Times journalist, raised concerns about how George Galloway MP ran his controversial Iraq charity, the Miriam Appeal. He alleged that public donations were used to fund visits by Mr Galloway to Iraq and to support political campaigns against UN sanctions and against Israel. As a result, the Charity Commission which held three inquires under the Charities Act 2006, which dismissed the complaints in very brief terms, leaving unanswered questions which the Supreme Court thought were of considerable public importance.
Mr Kennedy then requested disclosure from the Commission of documents which might explain the inquiries’ conclusions under the Freedom of Information Act (FOIA). He accepted that some information might attract absolute exemption from disclosure under FOIA (such as confidential information under s 41) and that other parts came within the scope of qualified exemptions and therefore required weighing up rival public interests under s 2(2).
However, the Commission said that all the documents were subject to an absolute exemption under s 32, on the basis that s 32 exempts the Commission from any duty to disclose documents held by a Court or persons conducting an inquiry or arbitration. Mr Kennedy responded by arguing that the absolute exemption under s 32(2) fell away once the inquiry concluded, either as a matter of ordinary construction or by interpreting s 32 in accordance with s 3 of the Human Rights Act. The protracted litigation began with a FOIA request in June 2007, followed by a detailed consideration by the Information Commissioner, two hearings before the First Tier Tribunal, a High Court hearing and two hearings before the Court of Appeal, which Mr Kennedy appealed to the Supreme Court.
The issues before the Supreme Court
The principal issues before the Supreme Court were whether the absolute exemption ended with the inquiry’s conclusion, either as a matter of ordinary construction or under the extended meaning permitted by s 3 of the HRA. The Supreme Court had little difficulty in deciding against Mr Kennedy that the absolute exemption under s 32 continued after the inquiries ended. The principal battleground therefore focused on the scope of Art 10.
The Art 10 issue
Unfortunately, the Strasbourg jurisprudence on whether freedom of expression entails a right of access to information is not entirely straightforward. In the older cases (which include Grand Chamber decisions), Leander v Sweden (1987) 9 EHRR 433, Gaskin v UK (1989) 12 EHRR 36, Guerra v Italy (1998) 26 EHRR 357 and Roche v UK (32555/96) (2005) 42 EHRR 30, the ECtHR deny that a right of access to information falls within the scope of Art 10. However, a series of later cases, Matky v Czech Republic Judgment 10 July 2006, Tarsasag v Hungary (2011) 53 EHRR 3 and Kenedi v Hungary (31475/05) (2009) 27 BHRC 335 say what Article 10 conferred a right of access to information, at any rate for those who exercise of the functions of a social watchdog, like the press.
Lord Judge CJ in Independent News and Media  1 WLR 2262 observed that the Strasbourg jurisprudence appeared to have developed a wider scope since Leander. But when the point was argued before the Supreme Court in Sugar v BBC  1 WLR 439, Lord Brown disagreed, holding in trenchant terms [88-96] that Art 10 creates no general right to freedom of information. Lords Mance and Wilson agreed with his analysis.
Since Sugar there have been four more ECtHR cases indicating that Art 10 confers a right of access to information: the Grand Chamber decision in Gillberg v Sweden (2012) 34 BHRC 247, Shapovalov v Ukraine, Judgment 32 July 2012, Youth Initiative for Human Rights v Serbia Judgment, June 25, 2013 and Österreichische v Austria, Judgment, 28 November 2013 (which was in fact given after the oral argument).
Mr Kennedy asked the Supreme Court to overrule Sugar before a seven judge court. Lord Mance, in giving the leading judgment (with which Lords Neuberger, Clarke and Sumption agreed) scrutinised the four new Strasbourg decisions [76-96]. He concluded, on the unsatisfactory state of the case law, that Art 10 did not confer a positive right of access to information . He also said  that it was unfortunate that the ECtHR chambers did not refer cases to the Grand Chamber where it disagreed with older Grand Chamber judgments.
Lord Mance’s approach is open to question on several grounds. His views appear to be out of line with current Strasbourg practice concerning referrals to the Grand Chamber, fail to acknowledge the dynamic interpretative techniques it uses when considering the scope of Convention rights (which Lord Wilson stressed in his dissenting judgment at ) and seem to imply that Strasbourg applies a system of precedent- which it does not.
One critical question the Supreme Court had to consider is how the ECtHR would, itself, decide the Art 10 issue. The reality is that the direction of travel is all one way- every recent ECtHR decision has said that Art 10 confers a right of access to information. Lord Wilson in his dissent stated that the Supreme Court could ‘confidently conclude’ that Art 10 required an unwilling public authority to disclose information , whereas Lord Carnwath held in his dissenting judgment  that the general direction of travel (unless the Grand Chamber ruled otherwise) was clear. In R(Gentle) v Prime Minister  1 AC 1356 Lady Hale indicated [56-57] that she considered the Strasbourg jurisprudence, she would be guided by what she could reasonably foresee what the ECtHR would decide; and in Ambrose v Harris  1 WLR 2435 Lord Dyson looked for a ‘sufficient indication’ of how the ECtHR would decide the case. It is respectfully submitted that the conclusion of the majority on the scope of Art 10 is, therefore, unconvincing
The common law alternative
Another curious feature of the decision is how the majority seized on a reference in the Commission’s printed case to s 78 of FOIA- which states that nothing in the Act ‘is to be taken to limit the powers of a public authority to disclose information held by it’. Section 78 was mentioned by the Commission for the limited purpose of arguing that its refusal to disclose was not an ‘interference’ with Art 8. However, the majority used s 78 as a launch pad to discuss obiter extending the common law principles of open justice, as developed by R(Guardian Newspapers) v City of Westminster Magistrates’ Court  QB 618, where the Court of Appeal held that the magistrates acted unlawfully in refusing to disclose the skeleton arguments, witness statements and other documents.
The majority’s extension of the Guardian News principle presented a number of difficult issues (which were not raised before the parties). Lord Mance [48-50] appeared to regard this development as a modest one, taking the view that, having regard to the terms of the Charity Act, the Commission should accede to Mr Kennedy’s request for disclosure in the public interest- unless there were powerful countervailing arguments to be advanced: see, also Lord Toulson at [124-129]. By contrast, Lord Carnwath was sceptical about such a broad proposition [236-242], pointing to a basic fallacy, that statutory tribunals did not sit in public, so that the cornerstone principle of Guardian News was absent. In Lord Carnwath’s view the alternative common law approach was, ‘arguably, a bolder leap into the unknown than the modest step’ the Supreme Court was being asked to take (after full argument) in relation Art 10.
The Supreme Court also disagreed about the standard to be applied when assessing whether the principle of open justice was overridden by countervailing factors. Lord Mance stated [52-54]- that the Wednesbury standard had developed an issue-sensitive scale of intervention to enable the Courts to perform their constitutional function in an increasing polity and concluded that the proportionality test is relevant to judicial review outside the scope of Convention and EU law, apparently performing the burial rights to the Wednesday principle which Dyson LJ foreshadowed in [34-37] in R(ABCIFER v Secretary of State for Defence  QB 1397. Lord Carnwath was much more cautious , pointing out that the jurisprudential basis for this flexible approach remains uncertain and that it was, at best, uncertain whether proportionality had become part of domestic public law.
Another curiosity in the judgment concerns how Mr Kennedy can now take his case forward. Lord Sumption emphasised  that a fresh request based on common law grounds would not necessarily result in a favourable outcome. Furthermore, if Mr Kennedy tried to judicially review a refusal to provide the documents requested, those new proceedings might be time-barred under CPR 54.5(1) since the ground of challenge arose so long ago. Lord Toulson suggested  that it would be harsh for the claim to be treated as time barred under CPR 54.5(1) because of the legal uncertainty concerning the correct route he should take. However, it is far from clear whether legal uncertainty in these circumstances will constitute a ‘good reason’ for extending time under the Civil Procedure Rules: so that any future judicial review case will fall at the first hurdle. Assuming the Administrative Court reached the stage of deciding the case on common law grounds, it is equally uncertain whether Mr Kennedy will prevail.
The upshot is Mr Kennedy may yet find that he will need to obtain a ruling from the ECtHR concerning whether Art 10 entails a right of access to information- sooner that the Supreme Court appear to have assumed.
Richard Clayton QC practises from 4-5 Grays’ Inn Square and Kings Chambers, Birmingham and is an Associate Fellow at the Centre for Public Law, Cambridge University. He represented an intervener in Kennedy.
(Suggested citation: R. Clayton, ‘The Curious Case of Kennedy v Charity Commission’ U.K. Const. L. Blog (18th April 2014) (available at: https://ukconstitutionallaw.org/)).