Kennedy v Charity Commission [2014] UKSC 20

A Times journalist sought disclosure from the Charity Commission of documents relating to inquiries into George Galloway's Mariam Appeal. The Supreme Court held that section 32(2) FOIA provided absolute exemption lasting 30 years, and that article 10 ECHR imposed no general duty of disclosure, dismissing the appeal.

Facts

Mr Kennedy, an investigations journalist with The Times, sought disclosure under the Freedom of Information Act 2000 (FOIA) of documents held by the Charity Commission relating to three statutory inquiries (conducted in 2003 and 2005) into the Mariam Appeal, a fund founded by Mr George Galloway MP in 1998. The Commission’s published reports concluded, amongst other things, that some appeal funds derived from breaches of UN sanctions against Iraq, that trustees had received unauthorised salary payments, and that Mr Galloway “may have known” of improper connections. Mr Kennedy considered the reports brief and unsatisfactory and sought further documentation to scrutinise the conduct and conclusions of the inquiries.

The Charity Commission refused disclosure, relying on section 32(2) FOIA, which provides an absolute exemption for information held only by virtue of being contained in documents placed in the custody of, or created by, a person conducting an inquiry or arbitration for the purposes of that inquiry or arbitration.

Issues

The principal issues were:

(1) Construction of section 32(2) FOIA

Whether the absolute exemption under section 32(2) endures beyond the conclusion of the inquiry (until the documents become “historical records” after 30/20 years under section 63(1)), or ceases at the end of the inquiry.

(2) Article 10 ECHR

Whether article 10 of the European Convention on Human Rights imposes a positive duty of disclosure on public authorities (particularly in favour of journalists and “social watchdogs”), such that section 32(2) must be “read down” under section 3 of the Human Rights Act 1998, or alternatively be declared incompatible.

(3) Disclosure outside FOIA

Whether, given section 78 FOIA (preserving other powers of disclosure), the Charities Act 1993 and common law principles independently require or permit disclosure.

Arguments

Mr Coppel QC, for Mr Kennedy, argued that the phrase “for the purposes of the inquiry” related to the present holding of documents, so the exemption ended with the inquiry. Failing that, he submitted that Strasbourg jurisprudence (notably Társaság a Szabadsagjogokert v Hungary, Kenedi v Hungary, Youth Initiative for Human Rights v Serbia and Österreichische Vereinigung v Austria) demonstrated a “direction of travel” recognising a positive right under article 10 to receive information held by public authorities, particularly for press “watchdogs”. Section 32(2) should be read down accordingly, or declared incompatible.

The Charity Commission and interveners (Secretary of State, Information Commissioner) submitted that section 32(2) provided a clear absolute exemption lasting until documents became historical records, and that article 10 imposed no general duty of disclosure, as established by the Grand Chamber decisions in Leander v Sweden, Guerra v Italy, Roche v United Kingdom, and Gillberg v Sweden.

Judgment

The Supreme Court (Lord Neuberger, Lord Mance, Lord Clarke, Lord Sumption and Lord Toulson; Lord Wilson and Lord Carnwath dissenting) dismissed the appeal.

Construction of section 32(2)

Lord Mance held that on ordinary principles of construction, the phrase “for the purposes of the inquiry or arbitration” qualified the placing or creation of the document, not its current holding. The exemption is therefore an historical condition that continues to apply after the inquiry concludes. This construction was reinforced by section 63(1), which provides that information contained in a “historical record” (after 30, now 20 years) ceases to be exempt under section 32 — implying that section 32 exemption was intended to last for that period.

Section 78 and the wider statutory/common law position

Section 32 was not intended to prohibit disclosure altogether but to take such information outside the FOIA regime, leaving disclosure to be governed by the specific schemes applicable to courts, arbitrations and inquiries. Section 78 preserves other powers of disclosure. The Charities Act 1993, particularly the Commission’s objectives (sections 1B–1E) of increasing public confidence, accountability and transparency, together with common law principles of openness, provide a route by which a journalist such as Mr Kennedy could seek disclosure, subject to judicial review on a context-sensitive standard of scrutiny.

Article 10 ECHR

Lord Mance undertook an extensive review of the Strasbourg case law. The Grand Chamber decisions in Leander, Guerra, Roche and Gillberg established that article 10 does not impose a positive obligation on the state to disclose information of its own motion. Later Section decisions (Társaság, Kenedi, Youth Initiative, Österreichische) were difficult to reconcile with the Grand Chamber jurisprudence, were inadequately reasoned, and did not establish a clear principle displacing the Grand Chamber’s position. Article 10 was therefore not engaged so as to impose a general duty of disclosure on the Charity Commission.

Reading down/incompatibility

Even if article 10 were engaged, section 32(2) could not be read down to terminate the exemption at the close of the inquiry without disrupting the statutory scheme (since section 2(2)’s public interest balance would not then apply). The Charities Act could itself be read compatibly with any article 10 rights, so no declaration of incompatibility was warranted.

Lord Toulson’s reasoning

Lord Toulson emphasised the common law principle of open justice, drawing on R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2013] QB 618, and held that statutory inquiries should be regarded as analogous to judicial proceedings for these purposes. Disclosure of inquiry documents could be sought through judicial review applying open justice principles, with the High Court exercising its own judgment.

Dissents

Lord Wilson would have read section 32(2) down under section 3 HRA to confine its effect to the duration of the inquiry, considering article 10 engaged in light of recent Strasbourg jurisprudence. Lord Carnwath agreed, regarding the Strasbourg “direction of travel” as sufficiently clear and the alternative common law route as more cumbersome and less protective of the applicant’s rights.

Implications

The decision confirms that section 32(2) FOIA provides an absolute exemption from FOIA disclosure that persists until documents become historical records. However, the Court emphasised that section 32 is not a prohibition on disclosure but a redirection: disclosure of inquiry documents must be considered under the statutory framework governing the relevant inquiry (here the Charities Act 1993) and at common law.

Importantly, the majority recognised a robust common law principle of openness and transparency applicable to statutory inquiries, supported by the Charity Commission’s statutory objectives, functions and duties. A refusal of disclosure may be challenged by judicial review, with the intensity of scrutiny calibrated to the nature of the interests involved. Lord Mance’s judgment contains a significant restatement of modern judicial review, recognising the role of proportionality and context-sensitive review beyond the rigid Wednesbury standard.

The case also offers important guidance on the relationship between domestic law and Strasbourg jurisprudence. The majority declined to follow Section-level Strasbourg decisions that appeared inconsistent with Grand Chamber authority, signalling a willingness to scrutinise the coherence of Strasbourg case law rather than mechanically applying every recent decision. Lord Mance and Lord Toulson stressed that the development of domestic common law should not be neglected in favour of exclusive reliance on Convention rights.

For journalists, NGOs and others seeking disclosure from public bodies in connection with statutory inquiries, the practical route lies outside FOIA — through the statutory powers and duties of the relevant authority, enforceable by judicial review applying principles of transparency and accountability. The decision was specific to Charity Commission inquiries under the 1993 Act; different statutory regimes (such as the Inquiries Act 2005) operate differently. Mr Kennedy remained free, following the judgment, to make a fresh request to the Commission on this alternative basis.

Verdict: The appeal was dismissed. The Supreme Court held by a majority (Lord Neuberger, Lord Mance, Lord Clarke, Lord Sumption and Lord Toulson; Lord Wilson and Lord Carnwath dissenting) that section 32(2) FOIA provides an absolute exemption from disclosure that continues after the conclusion of an inquiry until the documents become historical records, and that article 10 ECHR did not require section 32(2) to be read down or declared incompatible. Disclosure could, however, be sought outside FOIA under the Charities Act 1993 and common law principles of openness, subject to judicial review.

Source: Kennedy v Charity Commission [2014] UKSC 20