Kennedy v Charity Commission [2014] UKSC 20

Court: Supreme Court

Facts: C had previously conducted an inquiry and subsequently refused a freedom of information request from K, a journalist, seeking to disclose information about the inquiry. This refusal was based on an absolute exemption provided under sections 2(2) and 32(2) of the Freedom of Information Act 2000. K applied for judicial review of this decision, arguing that it violated Article 10 of the ECHR (right to freedom of expression) and sought to either have the legislation read down under Section 3 of the Human Rights Act 1998 or declared incompatible under Section 10 of the Human Rights Act 1998.

Issue: Was the refusal to disclose information incompatible with Article 10 ECHR, and did it warrant a declaration of incompatibility or reading down of the legislation?

Held: Appeal dismissed.

Key Judicial Statement: Lord Mance stated: There was no breach of Article 10, as Section 32 provides an absolute exemption even after the inquiry concludes, reflecting parliamentary intent. “It is not the court’s role to discard Parliamentary intent simply because it involves a ‘more cumbersome’ means of enforcing convention rights.” 【39】

• He noted there was no basis for a declaration of incompatibility with Article 10. 【42】

• Obiter comments on rationality and proportionality review highlighted that:

  • "Considerations of weight and balance are applied in both proportionality and reasonableness review, with the intensity of the scrutiny and the weight to be given to any primary decision maker’s view depending on the context." 【54】

  • The terminology of proportionality adds structure to the review process by emphasizing factors such as suitability, necessity, and the balance of benefits and disadvantages. 【54】

  • It is inappropriate to treat all cases of judicial review under a general principle of reasonableness, and courts must identify the “underlying tenet or principle” that should guide their approach in different situations, particularly when common law rights or constitutional principles are involved. 【55】

💡Leveluplaw: illustrates that the nature of judicial review is not static but varies based on context, emphasizing that the intensity of review can adapt to the specifics of each case. Lord Mance’s observations suggest that proportionality review can sometimes align closely with traditional reasonableness standards, particularly when fundamental rights are at stake, underlining the importance of accountability and transparency in administrative decision-making.