The Common Law and the Spirit of Kennedy

Following the Supreme Court’s lengthy, slightly unexpected, and difficult to grasp judgment in Kennedy v Charity Commission [2014] UKSC 20 (on which I have been quiet because of my involvement, but see Tom Cross’s blogpost here) there has been room for quite a large amount of debate as to how far it goes. Was the majority only suggesting access to the Charity Commission’s information under the common law principle of open justice applied because of the particular statutory regime and/or the nature of the statutory inquiry involved? Or was the principle rather more wide-ranging?

An answer has perhaps begun to emerge, as there was some discussion of this in the judgment of Green J in R (Privacy International) v HMRC [2014] EWHC 1475 (Admin). The judgment is, again, a long one, but the case was a judicial review of a decision of the HMRC that they had no power or duty to disclose information about their export control functions and in particular any investigations into the export by United Kingdom companies of software used for covert surveillance of political activists by repressive foreign regimes. Green J held that section 18 of the Commissioners for Customs and Revenue Act 2005 did provide such a power, and the HMRC had construed it too narrowly, when the power existed but was fact and context-dependent: see too R (Ingenious Media Holdings Plc) v HMRC [2013] EWHC 3258 (Admin), [2014] S.T.C. 673.

The judgment in Kennedy came out shortly after the oral hearing in Privacy International and it obviously sparked something of a debate. Green J accepted that the type of legal process involved was different to that in Kennedy, but he was of the view that Kennedy was authority for a more general proposition, or at least approach: at [62]:

I do not consider that the judgments in Kennedy lack all relevance. The Supreme Court was at pains to point out that the common law treated openness as very important and, with all the ecessary provisos and caveats, that message can in some measure carry through into section 18(2) CRCA 2005. In Kennedy Lord Mance, who gave the leading judgment for the majority, introduced his judgment with the following message which goes well beyond the narrow confines of the Charity Commission:

“1. Information is the key to sound decision-making, to accountability and development; it underpins democracy and assists in combatting poverty, oppression, corruption, prejudice and inefficiency. Administrators, judges, arbitrators, and persons conducting inquiries and investigations depend upon it; likewise the press, NGOs and individuals concerned to report on issues of public interest. Unwillingness to disclose information may arise through habits of secrecy or reasons of self-protection. But information can be genuinely private, confidential or sensitive, and these interests merit respect in their own right and, in the case of those who depend on information to fulfil their functions, because this may not otherwise be forthcoming. These competing considerations, and the balance between them, lie behind the issues on this appeal”.

The claimant conceded in the light of the Supreme Court decision that Article 10 ECHR did not give it a right of access to information, but argued that Article 10 did prevent one state body from stopping another state body imparting information which it wished to impart. Green J felt it unnecessary to decide the point because it added nothing to the common law: at [176], [179].

For various reasons on the facts of the case, and the particular context of HMRC’s approach to section 18, the decision was quashed. But it is a useful indication of how the courts have begun to think about the impact of Kennedy and other information access provisions.

Christopher Knight