Case 2: Kennedy v Charity Commission [2014] UKSC 20 - Definitive Study Notes

Case Citation, Procedural Timeline, and Judicial Composition\n- Case Name: Kennedy v Charity Commission (Secretary of State for Justice and others intervening) [on appeal from Kennedy v Information Commissioner (Secretary of State for Justice intervening)].\n- Citation: [$2014$] UKSC $20$. [$2015$] AC $455$. [$2012$] 1 WLR $3524$.\n- Hearing Dates: $2013$ October $29, 31$.\n- Judgment Date: $2014$ March $26$.\n- The Panel of Justices:\n - Lord Neuberger of Abbotsbury PSC.\n - Lord Mance.\n - Lord Clarke of Stone-cum-Ebony.\n - Lord Wilson (Dissenting).\n - Lord Sumption.\n - Lord Carnwath (Dissenting).\n - Lord Toulson.\n\n# The Factual Matrix: The Mariam Appeal and Dominic Kennedy's Request\n- The Subject Organization: The Mariam Appeal, founded in $1998$ by George Galloway MP (a high-profile Member of Parliament and critic of UN sanctions on Iraq). The appeal officially closed in $2003$.\n- Objectives of the Appeal: Primarily to provide medical assistance to the Iraqi people and highlight the cancer epidemic in Iraq, specifically naming the appeal after Mariam Hamza, a young Iraqi girl with leukaemia.\n- The Applicant: Mr. Dominic Kennedy, the Investigations Editor for The Times, who wrote an article in April $2003$ alleging that donation money was used for political campaigns and personal travel of Mr. Galloway.\n- Charity Commission Inquiries:\n - First and Second Inquiries ($2003$): Investigated funds from $1998-1999$ and the full history of the appeal. \n - Results ($2004$): Found the appeal should have been a registered charity; identified donors (United Arab Emirates, Saudi Arabia, and Mr. Zureikat); noted missing financial records sent to Jordan/Iraq; found salaries paid in breach of trust; concluded political activities were \"ancillary\" to treatment of sick children.\n - Third Inquiry ($2005$): Post-UN and US Senate reports on the Oil-for-Food Programme commissions.\n - Results ($2007$): Identified total funds of $£1,468,000$, including $£448,000$ from Mr. Zureikat, of which $£300,000$ were improper Oil-for-Food commissions. Stated Mr. Galloway \"may have known\" of the connection, despite denials. \n- The Information Request: On $8$ June $2007$, Kennedy requested disclosure under Section $1$ of the Freedom of Information Act $2000$ (FOIA) relating to documentation of these three statutory inquiries.\n\n# Statutory Framework: Freedom of Information Act 2000 (FOIA)\n- Section $1(1)$ Verbatim: \"Any person making a request for information to a public authority is entitled—(a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and (b) if that is the case, to have that information communicated to him.\"\n- Section $2(2)$ (Exemptions): Specifies that Section $1(1)(b)$ does not apply if (a) information is subject to absolute exemption, or (b) the public interest in maintaining the exemption outweighs disclosure.\n- Section $32(2)$ (Absolute Exemption for Inquiries): \"Information held by a public authority is exempt information if it is held only by virtue of being contained in—(a) any document placed in the custody of a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration, or (b) any document created by a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration.\"\n- Section $63(1)$ (Historical Records): Specifies that Information in a \"historical record\" (defined in Section $62(1)$ as after $30$ years, now transitioning to $20$ years) cannot be exempt under Section $32$.\n- Section $78$ (Saving for Prior Powers): \"Nothing in this Act is to be taken to limit the powers of a public authority to disclose information held by it.\"\n\n# Statutory Framework: Charities Act 1993 (Substituted by Charities Act 2011)\n- The Commission's Objectives (Section $1B$): Increasing public trust and confidence (Objective $1$); enhancing accountability of charities to donors and the general public (Objective $5$).\n- General Functions (Section $1C$): Identifying and investigating misconduct (Function $3$); obtaining, evaluating, and disseminating information (Function $5$).\n- General Duties (Section $1D$): Must have regard to the principle that regulatory activities should be \"proportionate, accountable, consistent, transparent and targeted.\"\n- Inquiry Powers (Section $8$): The Commission may institute inquiries and may publish reports or statements of the results as it thinks fit ($S. 8(6)$).\n\n# The Interpretation of Section 32: \"For the Purposes of the Inquiry\"\n- The Construction Dispute: Kennedy argued that Section $32(2)$'s phrase \"for the purposes of the inquiry\" qualified the word \"held.\" Under this view, once an inquiry ended, the information was no longer held for the purpose of the inquiry, and the absolute exemption lapsed.\n- Decision on Interpretation: The Supreme Court (Lord Mance and Lord Toulson) rejected this. They held that \"for the purposes of\" refers to the historical purpose for which the documents were originally placed in custody or created. \n- The Ratio: Section $32$ provides a total exclusion from FOIA to preserve the \"separation of powers.\" Courts, arbitrations, and inquiries have their own unique disclosure regimes. Parliament intended these entities to control their own records without the interference of the Information Commissioner.\n- Impact of Section $63$: The court noted that Section $63(1)$ explicitly mentions that Section $32$ expires after $30$ years (becoming a historical record). This proves the exemption was intended to persist long after the specific inquiry proceedings concluded.\n\n# Article 10 of the Convention and the \"Direction of Travel\"\n- Article $10$ Verbatim: \"$1.$ Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority… $2.$ The exercise of these freedoms… may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society…\"\n- Traditional Strasbourg Jurisprudence (The \"Leander\" Principle): Established in Leander v Sweden ($1987$), Gaskin v UK ($1989$), Guerra v Italy ($1998$), and Roche v UK ($2005$). These cases stated that Article $10$ basically prohibits governments from restricting receiving info that others wish to impart; it does not confer a right of access to records or an obligation on the state to impart information.\n- The Recent Evolution (\"Social Watchdogs\"): Kennedy relied on newer section decisions—Tþrsasþg a Szabadsþgjogokért v Hungary ($2009$), Kenedi v Hungary ($2009$), and Österreichische Vereinigung zur Erhaltung v Austria ($2013$). These cases suggested that where a \"social watchdog\" (press/NGO) requests information of public concern held in an \"information monopoly,\" Article $10$ might impose a positive obligation to disclose.\n- The Court's Analysis of Article $10$: The majority (Mance, Toulson, Sumption) refused to follow this new \"direction of travel\" definitively. They held that Section Decisions of the ECtHR did not yet nullify the Grand Chamber principles in Leander and Roche. They further argued that Article $10$ did not require FOIA to be \"read down\" because common law and the Charities Act already provide avenues for disclosure.\n\n# The Majority Judgment (Mance, Neuberger, Clarke, Toulson, Sumption)\n- Central Conclusion: The appeal is dismissed. Section $32(2)$ remains an absolute exemption within the FOIA framework, continuing for $30$ years post-inquiry.\n- The Common Law Prescription: Lord Mance and Lord Toulson held that although FOIA was closed, the Charity Commission still has a common law duty and statutory powers under the Charities Act to disclose information. \n- Judicial Review Standard: Any refusal by the Charity Commission to disclose inquiry info outside FOIA can be challenged via judicial review. Because the request involves a journalist (watchdog) and high public interest, the court will apply an \"intense\" standard of review, asking the Commission to show \"persuasive countervailing considerations\" against disclosure.\n- Open Justice Principle: Lord Toulson emphasized that while inquiries are not courts, the \"letting in of light\" is essential for public confidence. Inquiries are quasi-judicial, and the common law presumption of openness applies to them just as it does to courts (Guardian News and Media Ltd v City of Westminster Magistrates' Court [$2013$] QB $618$ applied).\n\n# The Dissenting Opinions (Lord Wilson and Lord Carnwath)\n- Lord Wilson's Dissent:\n - Criticized the majority's solution as \"profoundly unsatisfactory\" and \"vague.\" \n - Argued that Section $32(2)$'s $30$-year blanket prohibition was a paradigm of disproportionality.\n - Believed FOIA was intended to be a comprehensive code and that forcing journalists into \"cumbersome\" judicial review was an obstacle to freedom of expression.\n - Supported reading down Section $32(2)$ under HRA Section $3$ so it expires when the inquiry ends, mirroring the Inquiries Act $2005$.\n- Lord Carnwath's Dissent:\n - Emphasized that FOIA provides a specialist, cost-free tribunal system which is superior to the High Court for information disputes.\n - Concluded that the \"direction of travel\" in Strasbourg was clear enough to warrant a recognition of an Article $10$ right of access.\n - Found no policy reason why Charity Commission inquiries should be more secret than those under the Inquiries Act $2005$.\n\n# Comparative Disclosure Regimes Table\n- Court Records: Absolutely exempt under FOIA $S. 32(1)$, but accessible via inherent jurisdiction and CPR $r 5.4C$.\n- Inquiries Act $2005$ Inquiries: Exempt during the inquiry, but Section $18(3)$ of the $2005$ Act expressly removes the FOIA $S. 32(2)$ exemption once documents transition to the Minister at the end of the inquiry.\n- Charity Commission Inquiries: Absolutely exempt under FOIA $S. 32(2)$ for $30$ years; disclosure sought only via the Commission's discretionary powers and common law judicial review.\n\n# Conclusion and Implications\n- The Status of FOIA: FOIA is not an exhaustive scheme. Absolute exemptions in FOIA do not prohibit disclosure; they merely move the dispute into the arena of common law and specific statutory duties.\n- Pathway for the Applicant: Dominic Kennedy was advised that he could make a fresh request under the Commission's common law duties. The court indicated that the Commission would need to perform a balancing exercise based on transparency and accountability principles.\n- Legal Precedent: This case reinforces the strength of common law \"open justice\" and transparency, suggesting they can serve as alternatives or supplements to the FOIA statutory scheme.","title":"Kennedy v Charity Commission [2014] UKSC 20 - Definitive Study Notes"}