The end of the line for Kennedy v Charity Commission

March 18th, 2019

So if you, like me, were wondering whatever happened to Mr Kennedy’s case against the Charity Commission, wonder no longer. It turns out that last December the European Court of Human Rights decided to dismiss Mr Kennedy’s Article 10 claim on the ground that it was inadmissible by reason of the availability of an alternative remedy – see the judgment here.

The background, as you may recall, is that Mr Kennedy, a Times journalist, was trying to get information out of the Charity Commission in connection with the ‘Mariam Appeal’, a fund set up by George Galloway MP for the purposes of supporting Iraqi children suffering from leukaemia. Mr Kennedy wanted to get hold of the information in connection with an investigation he was conducting into whether monies collected under the name of Mariam’s Appeal had been misused. Mr Kennedy made a FOIA request to the Charity Commission, which had conducted an investigation into Mariam’s Appeal. Mr Kennedy’s request was refused on the basis that the information requested fell within the scope of s. 32 FOIA (absolute exemption concerning court records).

Many appeals later, the matter came before the Supreme Court. The issue for the Supreme Court was whether the effect of Article 10 ECHR was that s. 32 FOIA had to be read down so as to enable Mr Kennedy to gain access to the withheld information. A majority of the Supreme Court held that Article 10 ECHR did not assist Mr Kennedy for two reasons: first, Article 10 was not engaged because that Article did not create a freestanding right to information held by public authorities (see further the ECtHR’s subsequent judgment on this issue in Magyar Helsinki Bizottság v Hungary (18030/11), as discussed in Rupert Paines’ post); second, Article 10 did not avail Mr Kennedy because FOIA was not the be-all and end-all of his domestic information access rights, as he potentially had an alternative means of accessing the information, particularly in view of the Charity Commission’s statutory powers under the Charities Act 1993 to grant public access to the information it held.

The Court’s latter conclusion has been subject to much discussion in information rights circles. In particular, questions have been raised about whether the Supreme Court, which did at times use the language of a ‘common law right’ to information, was seeking to posit: (a) that there was a general right at common law to information held by public authorities or merely (b) that access may potentially be granted to applicants where this is permitted under a relevant statutory provision governing the disclosure of information to the public. This issue was considered in the case of R (on the application of Privacy International) v The Commissioner for HM Revenue and Customs [2014] EWHC 1475 (Admin), where the court, in the shape of Green J (as he was then), seemed to offer some support for the notion that there was a freestanding common law right of access to information held by public authorities (see par 62, as discussed in Chris Knight’s post). Debates on that issue will no doubt continue.

However, following the Supreme Court’s judgment, Mr Kennedy did not sit on his rights. Instead, he went back to the Charity Commission and asked them to disclose the information he had requested in exercise of their powers under the Charities Act 1993. In response to that request, the Charity Commission proceeded to disclose some 624 documents, although some were redacted. It appears that a considerable amount of information falling within the scope of Mr Kennedy’s request was not disclosed. Mr Kennedy did not challenge that refusal, although in principle he could have done so by mounting a judicial review claim. Instead, Mr Kennedy, sought to pursue a complaint before the ECtHR on the basis that the alternative remedy outlined by the Supreme Court did not satisfy the requirements of Article 10. In particular, Mr Kennedy sought to argue that the availability of that remedy was insufficient because it lacked certainty and did not otherwise meet the requirement for proportionality.

To cut a long story short, the ECtHR did not deal with the substantive complaint because it concluded that it was inadmissible. In essence, the Court held that there was an alternative remedy available to Mr Kennedy, in the form of a right to bring a judicial review claim in respect of the Charity Commission’s partial refusal of his request under the Charities Act 1993. Importantly, the fact that pursuing a judicial review claim might have proved prohibitively expensive in practice was not, in the Court’s view, a reason for concluding that there was no alternative remedy available to Mr Kennedy.

Whilst the outcome of the case was no doubt disappointing to Mr Kennedy, the fact that he was able to get hold of a considerable amount of information out of the Charity Commission, relying on their statutory powers to disclose information to the public, ought to give much food for thought to those advising on information rights issues.

11KBW’s Karen Steyn acted for the Government.

Anya Proops QC

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