Case Law: Kennedy v Charity Commission, Supreme Court: Strasbourg’s mixed messages about Article 10 and any right to receive information – David Hart QC

31 03 2014

news-graphics-2007-_637463aIn the case of Kennedy v Chairty Commission ([2014] UKSC 20), in judgments running to 90 pages, the Supreme Court dismissed this appeal by Mr Kennedy, a Times journalist, for access to documents generated by the Charity Commission under the Freedom of Information Act 2000.

The documents concerned three inquiries  between 2003 and 2005 into the Mariam Appeal. This appeal was George Galloway’s response to the sanctions imposed on Iraq following the first Gulf War, and little Mariam was a leukaemia sufferer. Mr Kennedy’s suspicion, amongst others, was that charitable funds had been used by Galloway for political campaigning.

The Charity Commission had refused the request on the ground that the information was subject to an absolute exemption from disclosure contained in s.32(2) of the FOIA. The Supreme Court (in common with the Court of Appeal) held that the absolute exemption applied and dismissed Mr Kennedy’s request. But the result was a little closer in the SC, with two judges dissenting, essentially on Article 10 grounds.

The Supreme Court trailed the possibility that Mr Kennedy may be able to request the material at common law (which he had not yet done), and then seek judicial review of any refusal to provide it on conventional grounds. There was evidently some sympathy with the view that this information could properly be produced by the Commission, even though they are exempt from having to produce it under FOIA. It was common ground that the Commission had the power to provide the information if it wished.

The Court addressed the following issues:

(a) was  s.32(2) as a matter of ordinary statutory construction, an absolute exemption which continues after the end of an inquiry? Here, the key words of s.32(2)(a) relate to “any document created by a person conducting an inquiry…for the purposes of the inquiry”

(b) if so, whether that is compatible with Mr Kennedy’s Article 10 Convention rights?

Contingent issues then arose, if section 32(2) were not so compatible

(c) should s.32 be read down under s.3 Human Rights Act to be compatible, either by reading it as an exemption which (i) ceased to operate at the end of the inquiry or (ii) as a qualified exemption requiring a general balancing of competing public interests) rather than an absolute exemption;and

(d) if it is not possible to interpret s.32(2) in a manner that is compatible with the Convention, whether the Supreme Court should make a declaration of incompatibility.

Statutory construction 

The majority said that as a matter of ordinary statutory construction, s.32(2) FOIA imposes an absolute exemption from disclosure that lasts until the relevant information is destroyed or for up to 30 (or in future 20) years under the Public Records Act 1958: [34].  They thought that the Convention put Mr Kennedy in no less favourable position than he would be in if article 10 of the Convention were engaged, but added that Article 10 does not impose a freestanding positive duty of disclosure on public authorities.

The relevance of Article 10 to FOIA

The majority (Lords Mance and Toulson, with whom the others agreed) thought that the effect of s.32 is to take information falling within the absolute exemption outside the scope of FOIA. FOIA was never intended to determine whether or not such information should be disclosed. Instead, any question as to its disclosure will be governed by other rules of statute and common law. If the law otherwise entitles Mr Kennedy to disclosure or puts him in a position no less favourable regarding disclosure than that which could be provided under article 10, then there can be no basis for reading down section 32 via s.3 HRA or concluding it is inconsistent with article 10.

Lord Mance thought that the Charity Commission has the power to disclose information to the public concerning inquiries on which it has published reports, both in pursuit of its statutory objective under the Charities Act 1993 of increasing public trust in, and the accountability of, charities, and under general common law duties of openness and transparency on public authorities. The exercise of that power will be subject to judicial review. Given the importance of the principles of openness and transparency, courts will apply a very high standard of review to any decision not to disclose information in answer to questions of real public interest in this context.

Lord Toulson stressed that open justice is a fundamental principle of common law. Judicial processes should be open to public scrutiny, unless and to the extent, that there are good reasons for secrecy. Letting in the light, is the best way of keeping those exercising the judicial power of the state, up to the mark and for maintaining public confidence. These underlying considerations apply also to any quasi-judicial inquiries and hearings. In conducting any judicial review of a decision not to disclose information, the High Court should exercise its own judgment on whether the open justice principle requires disclosure.

The right to receive information under article 10

Article 10 is about the freedom to express things, as well as the freedom “to receive and impart information and ideas without interference by public authority”. But equally the freedom to express or receive information without interference is worth little if the journalist receives little which he can express – if all he is fed with are governmental press releases. The question is whether that freedom to receive is solely focussed on information willingly to be provided by a private person – or whether it imposes duties on public authorities to provide information.

Had it been necessary for the resolution of the appeal, the Supreme Court would have concluded that article 10 did not contain a freestanding right to receive information from public authorities. The recent developments in the case law of individual sections of the European Court of Human Rights relied on by Mr Kennedy were not sufficient to justify a departure from the principle clearly established in a series of Grand Chamber decisions on article 10.

Lord Mance at [57-100] considered this at some length. The Strasbourg case law “is neither clear nor easy to reconcile”. It was “unfortunate” that individual sections of the ECtHR when disagreeing with statements of principle by the Grand Chamber did not release the case to the Grand Chamber.  As I noted previously (see my post on the CA), ECtHR cases during the late 1980s and 1990s gave no encouragement towards there being a positive obligation to collect and disseminate information of its own motion, as the environmental case of Guerra put it, and the former soldier (Roche) who wanted to know what had being going on at Porton Down whilst he was there received a similar dusty answer.

The first major change of direction was Tarsasag, in which the Strasbourg Court thought that it had advanced towards the recognition of a right of access to information. A state many have a monopoly of information. A State’s obligations in matters of freedom of the press include the elimination of barriers to the exercise of press functions where, in issues of public interest, such barriers exist solely because of an information monopoly held by the authorities.

Lord Mance thought that this advance was “weakly” based in the case law, was “aspirational”, “tentative” and not necessary for the decision. More recent cases from Strasbourg (collected at [76]) receive a fairly emphatic demolition job from Lord Mance over the next 20 paras, but, as we will see, their gist was supported by the dissenting judges.

Lord Mance rejected Mr Kennedy’s “radical analysis” that these recent decisions show that a right to receive information can arise under article 10, without any domestic right to the information; there is a general duty to disclose which is engaged under article 10(1) by any claim based on public interest.

“93…..On that basis, however, the statements of principle in the Grand Chamber decisions are history.

94. Had it been decisive for the outcome of this appeal, I would have considered that, in the present unsatisfactory state of the Strasbourg case law, the Grand Chamber statements on article 10 should continue to be regarded as reflecting a valid general principle, applicable at least in cases where the relevant public authority is under no domestic duty of disclosure. The Grand Chamber statements are underpinned not only by the way in which article 10(1) is worded, but by the consideration that the contrary view – that article 10(1) contains a prima facie duty of disclosure of all matters of public interest – leads to a proposition that no national regulation of such disclosure is required at all, before such a duty arises. Article 10 would itself become a European-wide Freedom of Information law. But it would be a law lacking the specific provisions and qualifications which are in practice debated and fashioned by national legislatures according to national conditions and are set out in national Freedom of Information statutes.

Dissenting judgments

Lord Wilson [160-201] and Lord Carnwath [202-248] would have allowed the appeal on the basis that Mr Kennedy had a right to receive the requested information under Article 10 of the Convention. At [189] Lord Wilson said

this court should now in my view confidently conclude that a right to require an unwilling public authority to disclose information can arise under article 10. In no sense does this betoken some indiscriminate exposure of sensitive information held by public authorities to general scrutiny. The jurisprudence of the ECtHR, of which this court must always take account and which in my view it should in this instance adopt, is no more than that in some circumstances article 10 requires disclosure.

Lord Carnwath agreed at [219].

From that position, it was “possible” under s.3 HRA to read s.32(2) in such a way that the absolute exemption expired at the end of the relevant inquiry. This would preserve the FOIA as the mechanism for obtaining information, which they considered would offer a number of advantages to a person seeking information compared with the judicial review procedure necessary if a non-FOIA request had been refused.

Comment

Plainly not the end of the litigation. Mr Kennedy will doubtless now be drafting his non-FOIA request for information, which on the minority view of the HR position, will have to be conducted not on ordinary review principles but with the court deciding for itself whether the refusal was in accordance with Convention rights. Sooner or later, the case will get to Strasbourg to decide whether recent Article 10 decisions accord with the direction of travel, or whether the Court will decide that the older Grand Chamber principles rule the day.

Other things of interest. Much emphasis of the fact that one should start with the common law and not with the Convention. Lord Mance at [46]: Convention rights represent a threshold, and the natural starting point is to start with common law: [46]. Or Lord Toulson at [133]:

There has sometimes been a baleful and unnecessary tendency to overlook the common law. It needs to be emphasised that it was not the purpose of the Human Rights Act that the common law should become an ossuary.

This post originally appeared on the UK Human Rights Blog and is reproduced with permission and thanks.

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9 04 2014
PACE vs FOIA: Access Denied | valerieeliotsmith

[…] problem so I won’t discuss it further here. For anyone who is interested, here is the link to a fairly short article on the Kennedy case (which also includes a link to the full judgment – probably not so great for the brain-fogged […]

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