Kennedy (Appellant) v The Charity Commission (Respondent)
Lord Neuberger, President
JUDGMENT GIVEN ON
26 March 2014
Heard on 29 and 31 October 2013
Philip Coppel QC
(Instructed by Bates Wells & Braithwaite LLP)
James Eadie QC
(Instructed by Charity Commission Legal Services)
James Eadie QC
(Instructed by Treasury Solicitors)
(Instructed by The Information Commissioner)
Richard Clayton QC
(Instructed by Media Legal Defence Initiative and Campaign for Freedom of Information)
LORD MANCE (with whom Lord Neuberger and Lord Clarke agree)
|Introduction||Paras 1 to 10:|
|The background in more detail||Paras 11 to 15|
|The statute law||Paras 16 to 23|
|The construction of the Freedom of Information Act ("the FOIA") section 32||Paras 24 to 34|
|Is article 10 of the Human Rights Convention relevant when construing section 32?||Paras 35 to 41|
|The Charities Act 1993||Paras 43 to 56|
|Article 10 in detail||Paras 57 to 89|
|Analysis of position under article 10||Paras 90 to 96|
|General international legal principles||Para 97 to 99|
|Ullah – "no more but certainly no less"||Para 100|
|Overall conclusions||Para 101|
"There is a strong public interest in the Commission being able to carry out its functions which is expressly recognised by the [FOIA] in section 31(2)(f)-(h). Section 31 exempts from disclosure information which, if released, would prejudice the Commission's functions in protecting charities against misconduct or mismanagement (whether by trustees or other persons) in their administration, protecting the property of charities from loss or misapplication and recovering the property of charities. The Commission relies very much on the co-operation of and liaison with a variety of third parties in undertaking these functions and routine disclosure of regulatory communication between the Commission and these parties would adversely affect the Commission in its work.
The competing public interest is for transparency of the decisions and reasons for them so as to promote public confidence in charities. This is tempered by the need for confidentiality in the exchange of information. In my view, at this time, balance of the public interest weighs more strongly with securing the Commission's ability to carry out its functions efficiently and therefore lies in withholding the information."
Outside the FOIA, and in particular if this had been the response given to a claim for disclosure under the Commission's Charities Act powers and duties, the response could have been tested by judicial review on ordinary public law principles. Instead, Mr Kennedy's claim was and has only ever been put on the basis that the FOIA must be construed or remodelled so as to give him a claim under that Act.
The background in more detail
The statute law
"2. In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) does not apply if or to the extent that -
(a) the information is exempt information by virtue of a provision conferring absolute exemption, or
(b) in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information."
Section 12 enables limits to be set to the costs which public authorities are bound to incur in complying with any request for information, and different amounts may be set in relation to different cases. Section 19 requires every public authority to adopt, maintain, review and publish information about its scheme for the publication of information.
"32.-(l) Information held by a public authority is exempt information if it is held only by virtue of being contained in-
(a) any document filed with, or otherwise placed in the custody of, a court for the purposes of proceedings in a particular cause or matter,
(b) any document served upon, or by, a public authority for the purposes of proceedings in a particular cause or matter, or
(c) any document created by-
(i) a court, or
(ii) a member of the administrative staff of a court,
for the purposes of proceedings in a particular cause or matter.
(2) 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. …."
"31.-(1) Information which is not exempt information by virtue of section 30 is exempt information if its disclosure under this Act would, or would be likely to, prejudice-
(a) the prevention or detection of crime,
(b) the apprehension or prosecution of offenders,
(c) the administration of justice,
(d) the assessment or collection of any tax or duty or of any imposition of a similar nature,
(e) the operation of the immigration controls,
(f) the maintenance of security and good order in prisons or in other institutions where persons are lawfully detained,
(g) the exercise by any public authority of its functions for any of the purposes specified in subsection (2),
(h) any civil proceedings which are brought by or on behalf of a public authority and arise out of an investigation conducted, for any of the purposes specified in subsection (2), by or on behalf of the authority by virtue of Her Majesty's prerogative or by virtue of powers conferred by or under an enactment, or
(i) any inquiry held under the Fatal Accidents and Sudden Deaths Inquiries (Scotland) Act 1976 to the extent that the inquiry arises out of an investigation conducted, for any of the purposes specified in subsection (2), by or on behalf of the authority by virtue of Her Majesty's prerogative or by virtue of powers conferred by or under an enactment.
(2) The purposes referred to in subsection (1)(g) to (i) are-
(a) the purpose of ascertaining whether any person has failed to comply with the law,
(b) the purpose of ascertaining whether any person is responsible for any conduct which is improper,
(c) the purpose of ascertaining whether circumstances which would justify regulatory action in pursuance of any enactment exist or may arise,
(d) the purpose of ascertaining a person's fitness or competence in relation to the management of bodies corporate or in relation to any profession or other activity which he is, or seeks to become, authorised to carry on,
(e) the purpose of ascertaining the cause of an accident,
(f) the purpose of protecting charities against misconduct or mismanagement (whether by trustees or other persons) in their administration,
(g) the purpose of protecting the property of charities from loss or misapplication,
(h) the purpose of recovering the property of charities,
(i) the purpose of securing the health, safety and welfare of persons at work, and
(j) the purpose of protecting persons other than persons at work against risk to health or safety arising out of or in connection with the actions of persons at work."
"40 – (1) Any information to which a request for information relates is exempt information if it constitutes personal data of which the applicant is the data subject.
(2) Any information to which a request for information relates is also exempt information if-
(a) it constitutes personal data which do not fall within subsection (l), and
(b) either the first or the second condition below is satisfied. …..
42.-(l) Information in respect of which a claim to legal professional privilege or, in Scotland, to confidentiality of communications could be maintained in legal proceedings is exempt information."
"1B - (1) The Commission has the objectives set out in subsection (2).
(2) The objectives are-
1 The public confidence objective.
2 The public benefit objective.
3 The compliance objective.
4 The charitable resources objective.
5 The accountability objective.
(3) Those objectives are defined as follows-
1 The public confidence objective is to increase public trust and confidence in charities.
2 The public benefit objective is to promote awareness and understanding of the operation of the public benefit requirement.
3 The compliance objective is to promote compliance by charity trustees with their legal obligations in exercising control and management of the administration of their charities.
4 The charitable resources objective is to promote the effective use of charitable resources.
5 The accountability objective is to enhance the accountability of charities to donors, beneficiaries and the general public.
1C – (1) The Commission has the general functions set out in subsection (2).
(2) The general functions are-
1 Determining whether institutions are or are not charities.
2 Encouraging and facilitating the better administration of charities.
3 Identifying and investigating apparent misconduct or mismanagement in the administration of charities and taking remedial or protective action in connection with misconduct or mismanagement therein.
4 Determining whether public collections certificates should be issued, and remain in force, in respect of public charitable collections.
5 Obtaining, evaluating and disseminating information in connection with the performance of any of the Commission's functions or meeting any of its objectives.
6 Giving information or advice, or making proposals, to any Minister of the Crown on matters relating to any of the Commission's functions or meeting any of its objectives.
1D – (1) The Commission has the general duties set out in subsection (2).
4 In performing its functions the Commission must, so far as relevant, have regard to the principles of best regulatory practice (including the principles under which regulatory activities should be proportionate, accountable, consistent, transparent and targeted only at cases in which action is needed).
1E - (1) The Commission has power to do anything which is calculated to facilitate, or is conducive or incidental to, the performance of any of its functions or general duties.
8 - (1) The Commission may from time to time institute inquiries with regard to charities or a particular charity or class of charities, either generally or for particular purposes, but no such inquiry shall extend to any exempt charity except where this has been requested by its principal regulator.
(2) The Commission may either conduct such an inquiry itself or appoint a person to conduct it and make a report to the Commission.
(6) Where an inquiry has been held under this section, [the Commission] may either-
(a) cause the report of the person conducting the inquiry, or such other statement of the results of the inquiry as the Commission thinks fit, to be printed and published, or
(b) publish any such report or statement in some other way which is calculated in the Commission's opinion to bring it to the attention of persons who may wish to make representations to the Commission about the action to be taken.
10A - (1) Subject to subsections (2) and (3) below, the Commission may disclose to any relevant public authority any information received by the Commission in connection with any of the Commission's functions-
(a) if the disclosure is made for the purpose of enabling or assisting the relevant public authority to discharge any of its functions, or
(b) if the information so disclosed is otherwise relevant to the discharge of any of the functions of the relevant public authority.
(2) In the case of information disclosed to the Commission under section 10(1) above, the Commission's power to disclose the information under subsection (1) above is exercisable subject to any express restriction subject to which the information was disclosed to the Commission.
(3) Subsection (2) above does not apply in relation to Revenue and Customs information disclosed to the Commission under section 10(1) above; but any such information may not be further disclosed (whether under subsection (1) above or otherwise) except with the consent of the Commissioners for Her Majesty's Revenue and Customs.
(4) Any responsible person who discloses information in contravention of subsection (3) above is guilty of an offence …..
(5) lt is a defence for a responsible person charged with an offence under subsection (4) above of disclosing information to prove that he reasonably believed-
(a) that the disclosure was lawful, or
(b) that the information had already and lawfully been made available to the public. ….
(7) ln this section 'responsible person' means a person who is or was-
(a) a member of the Commission,
(b) a member of the staff of the Commission,
(c) a person acting on behalf of the Commission or a member of the staff of the Commission, or
(d) a member of a committee established by the Commission."
"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 and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
The construction of section 32 of the FOIA
"Information contained in a historical record cannot be exempt information by virtue of section 28, 30(1), 32, 33, 35, 36, 37(1)(a), 42 or 43".
The natural inference is that it was contemplated that information falling within section 32 would continue to be exempt for 30 years. It is unlikely that the reference to section 32 was included simply to cover the possible existence of documents from court, arbitration or inquiry proceedings rivalling in length those in Jarndyce v Jarndyce or cases where a court, arbitration or inquiry considers documents themselves over 30 years old.
Is article 10 of the Convention relevant when construing section 32?
The Charities Act 1993
"90. ….the CAT [Competition Appeal Tribunal] was right to observe that their approach should reflect the 'specific context' in which they had been created as a specialised tribunal (paras 220); but they were wrong to suggest that this permitted them to discard established case law relating to 'reasonableness' in administrative law, in favour of the 'ordinary and natural meaning' of that word (para 225). Their instinctive wish for a more flexible approach than Wednesbury would have found more solid support in the textbook discussions of the subject, which emphasise the flexibility of the legal concept of 'reasonableness' dependent on the statutory context (see de Smith para 13-055ff 'The intensity of review'; cf Wade and Forsyth, p 364ff 'The standard of reasonableness', and the comments of Lord Lowry in R v Secretary of State for the Home Department, Ex p Brind  1 AC 696, 765ff).
91.Thus, at one end of the spectrum, a 'low intensity' of review is applied to cases involving issues 'depending essentially on political judgment' (de Smith para 13-056-7). Examples are R v Secretary of State, Ex p Nottinghamshire County Council  AC 240, and R v Secretary of State, Ex p Hammersmith and Fulham London Borough Council  1 AC 521, where the decisions related to a matter of national economic policy, and the court would not intervene outside of 'the extremes of bad faith, improper motive or manifest absurdity' ( 1 AC, per Lord Bridge of Harwich, at pp 596-597). At the other end of the spectrum are decisions infringing fundamental rights where unreasonableness is not equated with 'absurdity' or 'perversity', and a 'lower' threshold of unreasonableness is used:
"Review is stricter and the courts ask the question posed by the majority in Brind, namely, 'whether a reasonable Secretary of State, on the material before him, could conclude that the interference with freedom of expression was justifiable.' (de Smith para 13-060, citing Ex p Brind  1 AC 696, 751, per Lord Ackner)."
92.A further factor relevant to the intensity of review is whether the issue before the Tribunal is one properly within the province of the court. As has often been said, judges are not 'equipped by training or experience or furnished with the requisite knowledge or advice' to decide issues depending on administrative or political judgment: see Ex p Brind  1 AC at 767, per Lord Lowry. On the other hand where the question is the fairness of a procedure adopted by a decision-maker, the court has been more willing to intervene: such questions are to be answered not by reference to Wednesbury unreasonableness, but "in accordance with the principles of fair procedure which have been developed over the years and of which the courts are the author and sole judge"' (R v Panel on Take-overs and Mergers, Ex p Guinness plc  1 QB 146, 184, per Lloyd LJ)."
Article 10 in detail
The early Strasbourg case-law
"74. The Court observes that the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him. Article 10 does not, in circumstances such as those of the present case, confer on the individual a right of access to a register containing information on his personal position, nor does it embody an obligation on the Government to impart such information to the individual."
I do not subscribe to the view taken by Lord Wilson (para 178) that this was the answer to "a narrow, ostensibly a pedantic, question of the sort against which the court in Strasbourg often sets its face". The Grand Chamber did not see the matter in such terms. It was giving a serious answer to an important question, which defines the role of the Convention in this area. The Convention establishes fundamental standards, but there are limits to the ideal systems upon which it insists, and the Grand Chamber was making clear that article 10 does not go so far as to impose a positive duty of disclosure on Member States at the European level.
"The Court reiterates that freedom to receive information, referred to in para 2 of article l0 of the Convention, 'basically prohibits a government from restricting a person from receiving information that others wish or may be willing to impart to him' (see the Leander v Sweden judgment …..) That freedom cannot be construed as imposing on a state, in circumstances such as those of the present case, positive obligations to collect and disseminate information of its own motion."
Only a minority of 7 of the 20 judges added as a coda that there might under some different circumstances prove to be a positive obligation on a state to make available information to the public.
"172. The Court reiterates its conclusion in Leander v Sweden … para 74 and in Gaskin … para 52 and, more recently, confirmed in Guerra … para 53, that the freedom to receive information 'prohibits a government from restricting a person from receiving information that others wish or may be willing to impart to him' and that that freedom 'cannot be construed as imposing on a state, in circumstances such as those of the present case, positive obligations to ... disseminate information of its own motion'. It sees no reason not to apply this established jurisprudence."
"90. I come then to the first of the trilogy of cases on which the appellant so strongly relies: the Matky case. The complainant there was seeking, against the background of a general right to information under the Czech legal system, access to documentation concerning the construction of a new nuclear power station and in particular was challenging a requirement of the domestic legislation (article 133 of the Building Act …) that a request for information had to be justified. The Court accepted that the rejection of his request constituted an interference with the complainant's right to receive information. But it held that the decision could not be considered arbitrary, recognised that 'Contracting States enjoy a certain margin of appreciation in this area' and unanimously rejected the complaint as manifestly ill-founded.
91.The Matky case seems accordingly an unpromising foundation upon which to build any significant departure from what may be called the Roche approach to the freedom to receive information protected by article 10.
92. Nevertheless, in Társaság (the second in the appellant's trilogy of cases) it was to the Matky case that the Second Section of the Court referred as (the sole) authority for the proposition that, the Leander line of authority notwithstanding, 'the Court has recently advanced towards a broader interpretation of the notion of "freedom to receive information" and thereby towards the recognition of a right of access to information'. In Társaság the court upheld a complaint by the Hungarian Civil Liberties Union that a refusal by the Constitutional Court to grant them access to an MP's pending complaint as to the constitutionality of certain proposed amendments to the Criminal Code breached its article 10 right to receive information. The Government having accepted that there had been an interference with the applicant's article 10 rights, Mr Eicke relies in particular upon the following passage in the Court's judgment:
'[The Court] considers that the present case essentially concerns an interference – by virtue of the censorial power of an information monopoly – with the exercise of the functions of a social watchdog, like the press, rather than a denial of a general right of access to official documents . . . Moreover, the state's obligations in matters of freedom of the press include the elimination of barriers to the exercise of press functions where, in issues of public interest, such barriers exist solely because of an information monopoly held by the authorities" (para 36).'
93. Kenedi, the third in the trilogy of cases, was decided just four months after Társaság, also by the Second Section of the Court (including six of the same seven judges who had decided Társaság). The applicant there was a historian specialising in the functioning of the secret services of dictatorships. Although a succession of domestic court judgments had held him to be entitled to access to various documents for research purposes, the Ministry had refused to disclose them. Once again, hardly surprisingly in this case, the government conceded that there had been an interference with the applicant's article 10 rights. The Court 27 BHRC 335, para 45, had no difficulty in finding in the result a violation of article 10:
'the Court cannot but conclude that the obstinate reluctance of the respondent state's authorities to comply with the execution orders was in defiance of domestic law and tantamount to arbitrariness.'
The conclusion in BBC v Sugar
"94. In my judgment these three cases fall far short of establishing that an individual's article 10(1) freedom to receive information is interfered with whenever, as in the present case, a public authority, acting consistently with the domestic legislation governing the nature and extent of its obligations to disclose information, refuses access to documents. Of course, every public authority has in one sense 'the censorial power of an information monopoly' in respect of its own internal documents. But that consideration alone cannot give rise to a prima facie interference with article 10 rights whenever the disclosure of such documents is refused. Such a view would conflict squarely with the Roche approach. The applicant's difficulty here is not that Mr Sugar was not exercising 'the functions of a social watchdog, like the press.' (Perhaps he was.) The Jewish Chronicle would be in no different or better position. The applicant's difficulty to my mind is rather that article 10 creates no general right to freedom of information and where, as here, the legislation expressly limits such right to information held otherwise than for the purposes of journalism, it is not interfered with when access is refused to documents which are held for journalistic purposes."
Further Strasbourg case law
"83. The right to receive and impart information explicitly forms part of the right to freedom of expression under article 10. That right basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him (see, for example, Leander v Sweden …., para 74, and Gaskin v United Kingdom ….para 52)
84. In the present case the applicant was not prevented from receiving and imparting information or in any other way prevented from exercising his 'positive' right to freedom of expression. He argued that he had a 'negative' right within the meaning of article l0 to refuse to make the disputed research material available, and that consequently his conviction was in violation of article l0 of the Convention."
"86. The Court does not rule out that a negative right to freedom of expression is protected under article 10 of the Convention, but finds that this issue should be properly addressed in the circumstances of a given case."
Turning on this basis to the actual issue and circumstances, the Court said:
"92. …. the Court considers that the crucial question can be narrowed down to whether the applicant, as a public employee, had an independent negative right within the meaning of article l0 of the Convention not to make the research material available, although the material did not belong to him but to his public employer, the University of Gothenburg, and despite the fact that his public employer - the university - actually intended to comply with the final judgments of the Administrative Court of Appeal granting K and E access to its research material on various conditions, but was prevented from so doing because the applicant refused to make it available."
93. In the Court's view, finding that the applicant had such a right under article l0 of the Convention would run counter to the property rights of the University of Gothenburg. It would also impinge on K's and E's rights under article 10, as granted by the Administrative Court of Appeal, to receive information in the form of access to the public documents concerned, and on their rights under article 6 to have the final judgments of the Administrative Court of Appeal implemented."
Analysis of position under article 10
General international legal principles
i) article 19 of the Universal Declaration of Human Rights, 1948, providing:
"Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers";
ii) article 19 of the International Covenant on Civil and Political Rights ("ICCPR"), adopted 1966 and in force in 1976, providing:
"1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice";
iii) article 13(1) of the Inter-American Convention on Human Rights ("IACHR"), adopted 1969 and in force 1978, providing:
"Everyone has the right of freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice".
Ullah – "no more, but certainly no less"
i) Mr Kennedy's case is not entitled to succeed on the claims he has pursued by reference to section 32 of the FOIA: see in particular paras 34, 35-41 and 42 above.
ii) But that is not because of any conclusion that he has no right to the disclosure sought: see paras 35-41.
iii) He fails in the claims he had up to this point made because
a) the scheme of section 32 read in this case with the Charities Act 1993 is clear (paras 34 and 35-40), and
b) the route by which he may, after an appropriate balancing exercise, be entitled to disclosure, is not under or by virtue of some process of remodelling of section 32, but is under the Charities Act construed in the light of common law principles (paras 40 and 43-52) and/or in the light of article 10 of the Human Rights Convention (paras 36-39), if and so far as that article may be engaged (as to which see paras 55-98).
iv) Construed without reference to article 10, the Charities Act should be read as putting Mr Kennedy in no less favourable position regarding the obtaining of such disclosure than he would be in on his case that article 10 by itself imposes on public authorities a general duty of disclosure of information (paras 40 and 43-52).
v) I do not consider that article 10 does contain so general a duty (paras 97-98), but, in the circumstances, that conclusion is academic.
LORD TOULSON (with whom Lord Neuberger and Lord Clarke agree)
"Essentially this is an issue of separation of powers. The courts control the documents that are before them and it is right that our judges should decide what should be disclosed.
Although the courts are not covered by the Bill, according to it court records may be held on a court's behalf by public authorities… Statutory inquiries have a status similar to courts, and their records are usually held by the Department that established the inquiry.
The clause therefore ensures that the courts can continue to determine what information is to be disclosed, and that such matters are decided by the courts and fall within their jurisdiction, rather than the jurisdiction of this legislation. Of course, it is not to be assumed that such information will not be disclosed merely because the Bill will not require it to be disclosed. Such information is controlled by the courts, which constitute a separate regime. The courts have their own rules, and they will decide if and when court records are to be disclosed. The Government do not believe that the Freedom of Information Bill should circumvent the power of the courts to determine their disclosure policy. The issue is the separation of powers, and the jurisdiction to determine the information the court should provide will be left to the courts themselves. In a court case, it is for judges and courts to determine when it is appropriate for court records to be disclosed."
"The court commented that many statements and documents generated in federal litigation actually have little or no bearing on the exercise of judicial power because 'the temptation to leave no stone unturned in the search for evidence material to a judicial proceeding turns up a vast amount of not only irrelevant but also unreliable material'. Unlimited access to every item turned up in the course of litigation could cause serious harm to innocent people. The court conclude that the weight to be given to the presumption of access must be governed by the role of the material at issue in the exercise of judicial power and the resultant value of such information to those monitoring the federal courts."
LORD SUMPTION (with whom Lord Neuberger and Lord Clarke agree)
(a) that the objects of the appeal had been charitable and that, in the light of the size of its income, it should have been registered with the Commission as a charity but that the founders of the appeal had acted on legal advice to the contrary and so were unaware that they had created a charity;
(b) that, apart from members of the public, the major donors to the appeal had been the United Arab Emirates, someone in Saudi Arabia and a Jordanian citizen, namely Mr Zureikat;
(c) that Mr Galloway had confirmed that the appeal did not produce profit and loss accounts or balance sheets;
(d) that the Commission had been unable to obtain all the financial records of the appeal;
(e) that Mr Galloway had explained that, when in 2001 the chairmanship of the appeal had been transferred from himself to Mr Zureikat, he had sent the records to him in Jordan and Iraq and was unable to retrieve them;
(f) that Mr Galloway had assured it that all monies received by him out of the funds of the appeal had related to expenses incurred by him when he had been chairman of it;
(g) that two of the trustees had received salaries out of appeal funds in breach of trust but that their work had been of value to the appeal and no one had acted in bad faith in that regard, with the result that the Commission would not be taking steps to recover the salaries;
(h) that funds had been used to further political activities, in particular the campaign against the sanctions, but that the activities had been ancillary to the purposes of the appeal in that the trustees might reasonably have considered that they might secure treatment for sick children; and
(i) that, not only because the appeal had closed down but also because the political activities had been ancillary to its purposes and its records had been difficult to obtain, it was not proportionate for the Commission to pursue its inquiries further.
(a) that the funds known to have been paid into the appeal totalled Ł1,468,000, of which Mr Zureikat had donated over Ł448,000;
(b) that, of the funds donated by Mr Zureikat, about Ł300,000 represented his improper receipt of commissions referable to the Oil-for-Food programme;
(c) that Mr Galloway and the other trustees resident in the UK denied all knowledge of the source of Mr Zureikat's donations;
(d) that, although unaware that they had created a charity, the trustees should have been aware that they had created a trust, which required them to be vigilant in accepting large donations, particularly from overseas;
(e) that, in breach of their duty of care, the trustees had failed to make sufficient inquiries into the source of Mr Zureikat's donations;
(f) that Mr Galloway himself, however, "may have known of the connection between the appeal and the programme" (by which the Commission appears to have meant that, despite his denial, he may have known the source of Mr Zureikat's donations); and
(g) that the Commission had liaised with other agencies in relation to possible illegality surrounding Mr Zureikat's donations but, in the light of the closure of the appeal in 2003 and the distribution of all its funds, it proposed to take no further action.
(a) those which explained the Commission's conclusion that Mr Galloway may have known that Iraqi bodies were funding the appeal;
(b) those by which it had invited Mr Galloway to explain his position and by which he had responded;
(c) those which had passed between it and other public authorities; and
(d) those which cast light on the reason for the institution and continuation of each of the three inquiries.
(a) cited the Leander case;
(b) asserted, albeit without much basis, that the court had recently advanced towards a broader interpretation of article 10;
(c) distinguished the Guerra case on the basis that there the request had been for the state to collect information rather than to disclose what it already held;
(d) held that, in requesting the constitutional court to disclose the MP's complaint, the civil liberties union was acting, like the media, as a social watchdog seeking to generate informed public debate; and
(e) concluded that, in refusing the request, the constitutional court, which had a monopoly over the information, had unnecessarily obstructed that debate.
The course of the case
"allows all information deployed in the inquiry to be kept secret for 30 years after the end of the inquiry, regardless of the contents of the information, the harmlessness of disclosure or even the positive public interest in disclosure."
Although like his colleagues he felt constrained by what he called "the identity of section 32(1) and section 32(2)", he commented:
"Clearly and obviously Parliament was treating documents deployed in legal proceedings before a court in exactly the same way as those deployed in an inquiry. It simply overlooked that a court has machinery for the release of documents subsequent to (or indeed during) legal proceedings whereas an inquiry or arbitration does not. That may well have been a blunder which needs looking at" (para 48).
The Human Rights Act 1998
i) Interpretation (section 3(1)) Legislation must "so far as it is possible to do so" be "read and given effect" in a way compatible with Convention rights.
ii) Incompatibility (section 4) If a court is satisfied that a provision of primary legislation is incompatible with a Convention right it may make a declaration to that effect. Further action is then a matter for Ministers and Parliament (section 10).
iii) Acts of public authorities (section 6(1)) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. If the court finds that a public authority has so acted, it has wide powers to provide an appropriate remedy (section 8).
The relevance of the Strasbourg cases
"The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less."
That formulation does not purport to offer any guidance as to how to determine the position under the Strasbourg jurisprudence, where the particular issue before the domestic courts has not been the subject of direct decision. Ullah itself was such a case. It concerned the court's approach to a so-called "foreign case", that is one where it was claimed
"that the conduct of the state in removing a person from its territory (whether by expulsion or extradition) to another territory (would) lead to a violation of the person's Convention rights in that other territory" (per Lord Bingham, para 9).
In Ullah the right in question was article 9 (right to religion), which had not in that context been the subject of a decision of the Strasbourg court. But the House felt able to determine that question by reference to principles derived from decisions relating to other Convention rights. (see E Bjorge, "The Courts and the ECHR: A Principled Approach to the Strasbourg Jurisprudence" (2013) 72(2) CLJ 289, for a useful discussion of Lord Bingham's formulation in the context of the findings in the case, and of later statements by Lord Bingham, judicial and extra-judicial.)
"26. The Court has consistently recognised that the public has a right to receive information of general interest. Its case-law in this field has been developed in relation to press freedom which serves to impart information and ideas on such matters… In this connection, the most careful scrutiny on the part of the Court is called for when the measures taken by the national authority are capable of discouraging the participation of the press, one of society's 'watchdogs', in the public debate on matters of legitimate public concern…, even measures which merely make access to information more cumbersome.
27 . In view of the interest protected by article 10, the law cannot allow arbitrary restrictions which may become a form of indirect censorship should the authorities create obstacles to the gathering of information. For example, the latter activity is an essential preparatory step in journalism and is an inherent, protected part of press freedom…" (emphasis added, citations omitted).
Having referred to the restrictive view of article 10 taken in earlier case such as Leander v Sweden, it continued:
"Nevertheless, the Court has recently advanced towards a broader interpretation of the notion of 'freedom to receive information'… and thereby towards the recognition of a right of access to information" (para 35).
Construction of section 32
"The precise form of wording required to give effect to the claimants' rights is not critical: Ghaidan v Godin-Mendoza …para 35, per Lord Nicholls,). The court is not required to redraft the statute with the precision of a parliamentary draftsman, nor to solve all the problems which it may create in other factual situations…" (para 68)
"Unless the legislation would otherwise be in breach of the Convention section 3 can be ignored (so courts should always first ascertain whether, absent section 3, there would be any breach of the Convention)."
In principle with respect that seems to me correct. There is no need to read down a single provision, if the legislation as a whole can be read and applied in a compatible way.
The "common law" alternative
"Inquiries… come in all shapes and sizes and it would be wrong to suppose that a single model – a full-scale public inquiry – should be seen as the invariable panacea for all ills" (para 42).