Supreme Court · 5-2: Lords Mance, Toulson and Sumption giving majority judgments, Lords Neuberger and Clarke agreeing; Lords Wilson and Carnwath dissenting
Facts
The appellant, a journalist, asked the Charity Commission for documents relating to its inquiries into a charitable appeal and the use of its funds. The Commission refused, relying on the absolute exemption in section 32(2) of the Freedom of Information Act 2000 for information held only by virtue of being in documents placed in the custody of, or created by, a person conducting an inquiry.
History
The refusal was upheld through the information rights tribunals and the Court of Appeal.
Issue
Whether the section 32(2) exemption expired when the inquiries ended; if not, whether section 3 of the Human Rights Act 1998 required it to be read down so that it did, on the footing that Article 10 conferred a right to receive the information; and what other routes to disclosure existed.
Held
Appeal dismissed. Section 32(2) continued to apply after the end of the inquiries. Article 10 did not confer a general right of access to information held by public authorities, so no reading down was required. The Commission had separate powers and duties, under its constituting legislation and the common law, to consider disclosure, and a refusal could be challenged by judicial review.
Ratio
- Section 32(2) of the Freedom of Information Act 2000 is an absolute exemption that does not lapse at the end of the inquiry, and since Article 10 ECHR does not impose a general duty on public authorities to disclose information, it need not be read down under section 3 of the Human Rights Act 1998.
- The Freedom of Information Act is not an exhaustive code; a public body may have, under its own statutory functions and common law principles of openness, a duty to consider disclosure, and its decision is reviewable by the courts with an intensity of scrutiny that depends on the context and the interests at stake.
The judgments
Lord Mance (majority)
Held that section 32(2) was intended to remove inquiry documents from the Act and to leave access to the regime governing each inquiry, and that it did not lapse when the inquiry ended. Reviewing the Strasbourg cases, he concluded Article 10 did not then confer a general right to receive information from the state. He emphasised that the Commission was subject to common law duties of openness and that judicial review was not confined to a rigid Wednesbury standard: the intensity of review, and the relationship between reasonableness and proportionality, depend on the context and the importance of the right affected.
Lord Toulson (majority)
Agreed, stressing that the common law has its own principle of open justice and openness in public affairs, and that claimants should look first to the common law and domestic statute rather than assume that Convention rights are the primary source of protection.
Lord Sumption (majority)
Agreed that Article 10 did not confer a right of access to information held by public authorities, analysing the Strasbourg case law to that effect.
Lord Wilson (dissenting)
Considered that the Strasbourg case law had developed to recognise a right to receive information in some circumstances, particularly for journalists, and would have read section 32(2) down under section 3 so that the exemption ended with the inquiry.
Lord Carnwath (dissenting)
Agreed with Lord Wilson that Article 10 was engaged on these facts and would have read the exemption as ending with the inquiry.
Key reasoning
- The structure of the Act showed Parliament intended inquiry documents to be governed by the specific regimes for inquiries rather than by the general freedom of information scheme, which supported reading the exemption as continuing.
- Leander v Sweden, Gaskin v United Kingdom and later Strasbourg decisions were read as treating Article 10 as protecting the freedom to receive information others wish to impart, not as imposing a duty on the state to disclose.
- Because the Commission had statutory functions including promoting public trust and confidence in charities, and because the common law favours openness, it had power and in some circumstances a duty to disclose, and its decisions were justiciable.
- On review of such a decision the court would examine the reasons with care and would not be limited to asking whether the refusal was so unreasonable that no rational authority could make it.
Obiter
- Lord Mance suggested that the courts should not treat Wednesbury unreasonableness and proportionality as rigidly separate, since both are applied with an intensity that varies with the subject matter, and that the common law can apply a structured, proportionality-like analysis in appropriate cases.
Where it fits in the module
Under Unreasonableness, Kennedy matters chiefly for the remarks of Lord Mance and Lord Toulson that judicial review is not limited to a single Wednesbury standard and that its intensity varies with context. It is read alongside Pham v Secretary of State for the Home Department, decided shortly afterwards, as part of the debate whether proportionality should become a general head of review and whether the common law, rather than the Human Rights Act, should lead.
Criticisms
- The common law route the majority offered was uncertain and untested, so the appellant was refused a statutory right on the strength of a remedy whose content was undefined.
- Describing review as variable in intensity without fixing a structure gives courts wide unstated discretion and makes outcomes hard to predict.
- The narrow reading of Article 10 was overtaken within two years by Strasbourg, suggesting the dissent read the jurisprudence more accurately.
- Construing an absolute exemption to last beyond the end of an inquiry gives little weight to the purpose of the Act and to the press interest in scrutinising public regulators.
Written with AI (claude-opus-5.5 (Claude Code writer)) on 1 November 2026, reviewed for errors by a second model (claude-sonnet-5.5 (Claude Code checker)). Read the case itself on Find Case Law. Spotted an error? Tell us.