Kennedy v Charity Commission [2014] UKSC 20

Key point

  • The nature of Judicial Review is not fixed but dependent on the context; the ‘intensity’ of substantive review can be changed according to the circumstances of the case

Facts 

  • C had previously conducted an inquiry 
  • C refused a freedom of information request by K (journalist) to disclose information on the inquiry based on an absolute exemption provided for under s.2(2) and 32(2) of the Freedom of Information Act 2000
  • K applied for judicial review of the decision for violating Article 10 of the ECHR (right to freedom of expression), and sought to have either have the legislation read down via s3 HRA 1998 or declared incompatible via s10 HRA 1998

Held (Supreme Court) 

  • Appeal dismissed

Lord Mance

No breach of Article 12

  • As a matter of ordinary common law construction, s.32 provides an absolute exemption even after the inquiry is over
  • Article 10 should not allow a different reading of s.32 since this would differ from the intentions of Parliament
  • It is not the court’s role to discard Parliamentary intent simply because it involves a ‘“more cumbersome” means of enforcing convention rights’: [39]
  • There is no basis for a declaration of incompatibility with Article 10: [42]

Obiter comments on rationality and proportionality review

  • 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 advantage of the terminology of proportionality is that it introduces an element of structure into the exercise, by directing attention to factors such as suitability or appropriateness, necessity and the balance or imbalance of benefits and disadvantages: [54]
  • It is inappropriate to treat all cases of judicial review under “a general but vague principle of reasonableness” and the court must look for the “underlying tenet or principle” which should determine its approach in different circumstances: [55]
  • “Among the categories of situation…common law right or constitutional principle is in issue. In the present case, the issue concerns the principles of accountability and transparency”: [55]

Commentary

  • Lord Mance’s obiter comments suggest that, if the facts are so similar that they are the same review standard, Wednesbury review becomes in essence identical to proportionality review, even when dealing with common law rights