• In the case of Kennedy v Charity Commission 2014 UKSC 20, it was determined that judicial review is contextually driven, which means that the level of substantive review is dependent on the context of the case.

Facts of the Case

  • C was a journalist who appealed the decision that D, the Charity Commission, was not permitted to disclose the documents under the Freedom of Information Act 2000 which included information regarding an inquiry.
  • D argued that disclosure was not permitted given that the documents were exempted under section 32(2) of the Act, and that they could only be disclosed once they were categorised as historical records 30 years later.
  • C, however, argued that the exemption as alleged by D was invalid and instead subsisted for the duration of the inquiry.
  • C subsequently made an application for judicial review, based on a breach of Article 10 ECHR pertaining to freedom of expression.

Issues

  • Was the information in the documents permitted or were they exempt under section 32(2).
  • If the documents were indeed exempt, is the exemption compatible with freedom of expression under Article 10 ECHR to receive the information?

Held by Supreme Court

  • The Supreme Court dismissed the appeal.
  • The natural interpretation of section 32(2) was that the exemption applies continuously at the conclusion of the inquiry due to the specific wording, therefore an absolute exemption applies even once the inquiry has ended.
  • The interpretation of section 32 should not be manipulated Article 10.

Lord Mance

  • Article 10 cannot be used to interpret a section of an Act. The meaning of a provision is legislation must be determined in isolation, in the absence of input from externalities.
  • “First, to move directly to article 10 is, as I have already indicated, mistaken. Section 32 leaves open the statutory and common law position regarding disclosure outside the FOIA, and that directs attention to the Charities Act. If the Charities Act entitles Mr Kennedy to disclosure or puts him in a position no less favourable regarding disclosure than that which should, in Mr Coppel’s submission, be provided under article 10, then there can be no basis for submissions that section 32 requires reading down in the light of or is inconsistent with article 10.” [35]
  • “…it is inappropriate to treat all cases of judicial review together under a general but vague principle of reasonableness, and preferable to look for the underlying tenet or principle which indicates the basis on which the court should approach any administrative law challenge in a particular situation. Among the categories of situation identified in de Smith are those where a common law right or constitutional principle is in issue.” [55]

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