ACCOUNTABILITY, transparency, and freedom of information are essential to democracy. These values are not absolute; hence the law is used to demarcate how much transparency, access, and freedom are allowed. The Freedom of Information Act 2000 (FOIA) provides a mechanism for accessing information held by public authorities. It has been heavily criticised for not providing sufficient access due to its wide exemptions and section 53 veto power. Nevertheless, it was thought that, where citizens seek information, they should use FOIA. In Kennedy v The Charity Commission [2014] UKSC 20, [2014] 2 W.L.R. 808, the Supreme Court found that this may not always be the appropriate method. The Supreme Court held, by a majority of 5:2, that Kennedy should not have pursued his claim under FOIA; instead he should have sought disclosure via the Charities Act 1993 (“Charities Act”) and judicial review. The majority took this opportunity to criticise the overuse of human rights, and to emphasise the significance of the common law and its role in ensuring accountability and transparency.

The background to the case was the operation of George Galloway M.P.'s “Mariam Appeal” from 1998 to 2003. Galloway established the organisation with the stated aim of providing medical assistance to Iraqi children. Various allegations of misconduct were made against the organisation, including misuse of funds and improper receipt of monies resulting from abuse of the UN Oil-for-Food programme. The allegations resulted in inquiries by the Charity Commission (“the Commission”). The Commission confirmed some of the allegations, but its reports did not clarify Galloway's role, nor were the process and reasoning of the inquiry clear. Kennedy, a journalist, sought information about the inquiry under FOIA. The Commission claimed exemption by virtue of FOIA, s. 32(2). It provides:

In the Supreme Court, the Justices agreed that, on an ordinary construction, the information was exempt under section 32(2). Where the Justices differed was in their interpretation of the Strasbourg jurisprudence, and the need to interpret section 32(2) compatibly with Convention rights. The majority (Lords Mance, Toulson, Sumption, Neuberger, and Clarke) held that section 32(2) could not be circumvented, and there was no Article 10 European Convention on Human Rights (Article 10) right of access to the information. Whilst they rejected Kennedy's appeal, they suggested that the claim could have been successfully pursued via the Charities Act and judicial review. Lords Wilson and Carnwath dissented. They found that Article 10 provides a right of access which is violated by the blanket prohibition in section 32(2). They would have used section 3 of the Human Rights Act 1998 to read down section 32(2) so that the exemption only applies whilst the inquiry is ongoing. Thus they would have allowed the appeal.

The Strasbourg jurisprudence was mixed. The majority decided that the jurisprudence was ambiguous and determined to follow the Grand Chamber decisions, which stated that there was no right of access, until the principles were clarified. Conversely, Lords Wilson and Carnwath found the earlier Grand Chamber decisions of limited relevance as they were primarily Article 8 cases. Moreover, all the recent Article 10 decisions demonstrated a clear and consistent expansion of the right to include a right of access. The analysis of the minority is compelling and is consistent with the Strasbourg approach to precedent, the living instrument interpretation of the Convention, and the democratic rationale for the Convention rights.

None of the Justices advocated reinterpreting section 2 of the Human Rights Act 1998 to go beyond the Strasbourg jurisprudence. Nor did any of the Justices refuse to follow Strasbourg jurisprudence. Indeed, Lord Mance declined the opportunity to rethink Lord Bingham's statement in R. (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 A.C. 323 that the courts should do no more, but certainly no less than Strasbourg. Where the Justices differed was in how to interpret the jurisprudence. Whilst the majority sought high-level statements of principle and detailed analysis of the implications, the dissenting judges were content to follow the line of the developing Strasbourg jurisprudence, provided that the general direction was clear. The majority's determination that we need to wait for a Grand Chamber judgment runs the risk that there will be a lag in implementation. Conversely, a bold use of the minority's approach could result in the domestic courts' running ahead of the Strasbourg jurisprudence. If the Strasbourg Court later adopts a more nuanced and conservative approach than the domestic courts, they would need to rein in their earlier analysis or determine that they are entitled to go beyond Strasbourg jurisprudence under section 2. It is for this reason that Lord Carnwath anticipated that other cases may require a more cautious approach.

The Justices also disagreed over whether FOIA needed to be read compatibly with the Convention. Having found that there was no Article 10 right, there was no need for the majority to reinterpret FOIA. Yet the majority held that, even if there were a right, there was no need to read FOIA compatibly, as it is not the only vehicle for accessing information. Lord Mance explained how Kennedy could have used the Charities Act and the common law requirement of openness. The Charities Act establishes the duties of the Commission, which include increasing public trust and confidence in charities, and enhancing accountability. These provisions limit the Commission's activities, including responses to requests for disclosure. Thus, if information is of genuine public interest, the Commission must disclose it unless there are persuasive countervailing considerations. Any refusal to do so will be subject to judicial review. Lord Wilson was deeply sceptical. He found the scheme so vague and hypothetical that he doubted whether it was a scheme at all, and whether it would satisfy the “prescribed by law” requirements of Article 10.

The differences in part reflected different perceptions of the relationship between the common law and human rights. Whilst Lords Wilson and Carnwath focused on the human rights jurisprudence, the majority championed the common law. One possible explanation for the majority's approach is that is part of a broader attempt to embed principles in anticipation of the potential repeal of the Human Rights Act 1998. Yet it is difficult to regard this as a pro-rights stance by the judiciary, when claims are rejected. The public is none the wiser as to Galloway's involvement and the nature of the inquiry. The common law model proposed by the majority has never been used and Kennedy may now be out of time for bringing such a claim, unless judicial discretion is exercised. Even if he is able to bring proceedings, it is not clear that he would be successful. Lords Sumption and Carnwath were cautious about assuming that there would be a favourable outcome without hearing all the arguments. Moreover, their Lordships expressed different views as to the applicable standard of review. Lord Mance suggested that proportionality may be now be used in all cases. His recommendation was based on the structured nature of proportionality reasoning rather than a particular degree of scrutiny. He advocated looking for the underlying tenet or principle and proceeding from that basis. In this case, the relevant principles were accountability and transparency. Lord Toulson, reasoning by analogy with challenges to the High Court against a refusal of disclosure by a lower court, thought that the Court should decide for itself whether the open justice principle required disclosure. Lord Carnwath was less convinced that principles of open justice developed in the context of judicial hearings could be transferred to a statutory inquiry which was not required to sit in public. Lord Carnwath was also cautious about Lord Mance's comments concerning the nature of judicial review in an application where these points had not been fully argued. He doubted whether universal proportionality had been established. He also cautioned of the differences between reviewing process under a judicial review model, and a human rights model which allows the court to determine whether the decision was in accordance with Convention rights.

Ultimately, whilst the case offers an array of deep points of contention and interest, much of it is obiter and none of it ensured accountability. If the courts are going to expand and develop the common law, it is vital that rights and constitutional principles do not become theoretical and illusory. Citizens are entitled to expect that the means of accessing important information will be clearly established by law. We do not know whether the scheme envisaged by the majority will provide access to information. Moreover, as Lord Carnwath acknowledged, the new scheme is far more costly and cumbersome than the one provided in the legislation. Thus, whilst the majority were critical of the limited development of the Strasbourg jurisprudence and were quick to champion the common law, their own solution is deeply uncertain.