CEDH · CASELAW;COMMUNICATEDCASES;ENG — 17 mars 2015

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA36B60A1 { font-family:Arial; font-style:italic } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sAADB120E { margin-top:6pt; margin-left:28.35pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s59DEA84 { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sA80E62D1 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:11.5pt } .s4B8D41EE { font-family:Arial; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both }     Communicated on 17 March 2015   FOURTH SECTION Application no. 64367/14 TIMES NEWSPAPERS LIMITED and Dominic KENNEDY against the United Kingdom lodged on 19 September 2014 STATEMENT OF FACTS The first applicant, Times Newspapers Ltd, is the proprietor and publisher of The Times newspaper and is registered in England. The second applicant, Mr Dominic Kennedy, is a senior investigative journalist employed by The   Times who was born in 1963. They are represented before the Court by Ms P. Sarma, a lawyer practising in London. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. 1.     The background facts (a)     The “Mariam Appeal” and Charity Commission inquiries The Mariam Appeal was a fund launched in 1998 by Mr   George   Galloway, a Member of Parliament, to enable a young Iraqi leukaemia sufferer (Mariam) to receive treatment in the United Kingdom, to arrange treatment for other Iraqi children suffering from leukaemia and to provide medical supplies to Iraq. Although its objects were charitable, it was not formally registered as a charity. It continued in operation until 2003 and raised a total of almost 1.5 million pounds sterling. Following the publication in The Times of an article written by the second applicant, Mr Kennedy, in which he alleged that funds collected under the auspices of the Mariam Appeal had been misused, the Charity Commission for England and Wales opened an evaluation into the use of the Mariam Appeal’s funds for non-charitable purposes. It subsequently launched an inquiry under section 8 of the Charities Act 1993 (see “Relevant domestic law and practice”, below) to investigate how the monies raised between March 1998 and April 1999 had been spent. Meanwhile, the Charity Commission continued to evaluate the use of funds obtained after April 1999. A second inquiry was later opened to investigate how monies raised throughout the lifetime of the Mariam Appeal had been spent. Both inquiries were closed in March 2004. On 28 June 2004 the Charity Commission published a two-and-a-half-page statement of the results of the inquiries setting out its findings. It found that the Mariam Appeal was charitable and ought to have been registered with it, although its founders were unaware that they had created a charity; and it decided that although some payments made to trustees of the Mariam Appeal had been in breach of trust, there had been no bad faith, so that recovery of the sums would not be pursued. On 9 December 2005 the Charity Commission opened a third inquiry as a result of allegations that the Mariam Appeal had received donations from contracts made under the United Nations Oil-for-Food Programme for Iraq. The inquiry closed in April 2007 and the statement of the results of the inquiry, running to eight pages, was published on 8 June 2007. The Charity Commission concluded that some donations to the Mariam Appeal had come from improper sources, namely contracts made under the UN Programme, and that the trustees had failed to inquire sufficiently into the source of the donations. Accordingly, they had not discharged their duty of care as trustees in respect of these donations. The Charity Commission decided not to take any action, since it was a civil regulator and did not have powers of criminal prosecution and, in any case, the Mariam Appeal had not operated since 2003 and held no assets requiring protection. (b)     The request for information On 8 June 2007 Mr Kennedy sought information from the Charity Commission concerning the latter’s inquiry into the “Mariam Appeal” between December 2005 and April 2007. The request was presented in an email as follows: “Application under the Freedom of Information Act Please would you let me know in writing if you hold information of the following description: Information concerning: The inquiry into the Mariam Appeal which took place between December 2005 and April 2007, the results published on June 8, 2007. If any part of the information requested is covered by one or more of the absolute exemptions in the Act please treat this request as a request for that part of the information which is not covered by the absolute exemption. If you need further details in order to identify the information requested or a fee is payable please let me know as soon as possible. If you are of the view that there may be further information of the kind requested but it is held by another public authority please let me know as soon as possible. Please continue with this application as soon as possible. I believe that the information requested is required in the public interest for the following reasons: 1.     To uphold public confidence that the Charity Commission conducts its inquiries in a spirit of fairness to all parties; 2.     To provide assurance that the Charity Commission liaises fully with all relevant authorities so its inquiries are as thorough as possible; 3.     To ensure that the Charity Commission spends money correctly when making inquiries into charities and their trustees.” (c)     The Charity Commission refusal By letter dated 4 July 2007 the Charity Commission, via its Compliance and Support division, refused to provide the information requested. The letter confirmed that the Charity Commission held the information but relied on both qualified and absolute exemptions under the Freedom of Information Act 2000 (“FOIA” – see “Relevant domestic law and practice”, below). Invoking first a qualified exemption available under section 31 FOIA (information related to law enforcement), the letter explained that since that exemption was not absolute it was necessary to consider under section 2 FOIA whether the public interest in withholding the information was outweighed by the public interest in its disclosure. It continued: “There is a strong public interest in the Commission being able to carry out its functions which is expressly recognised by [section 31] ... Section 31 exempts from disclosure information which, if released, would prejudice the Commission’s functions in protecting charities against misconduct or mismanagement ... 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 the 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.” The letter also indicated that the Charity Commission considered the absolute exemption in section 32 FOIA (information held in court records or by a person conducting an inquiry or arbitration) to be engaged, as well as a number of other exemptions in the FOIA. Mr Kennedy invited the Charity Commission to reconsider its decision, arguing that the exemptions had been misapplied. On 3 August 2007 the Charity Commission confirmed that an internal review had been conducted and that the original decision to withhold the information had been upheld. (d)     The complaint to the Information Commissioner On 1 November 2007 Mr Kennedy complained, under section 50 FOIA, to the Information Commissioner about the refusal to disclose the information. On 9 September 2008 the Commissioner published his decision notice. He found that all the information requested was exempt under the absolute exemption contained in section 32(2) (documents obtained or created in connection with an inquiry). He therefore upheld the Charity Commission’s decision to refuse to disclose the information. Since an absolute exemption applied, he explained, there was no need for him to consider the public interest set out in section 2 FOIA. In light of his conclusion, he also saw no need to consider whether other exemptions applied. 2.     The domestic proceedings (a)     The Information Tribunal Mr Kennedy appealed under section 57 FOIA to the Information Tribunal (“the Tribunal”) requesting it to consider afresh whether the information was exempt under section 32 FOIA. The Charity Commission applied to be joined as an interested party and the application was granted. It subsequently lodged a schedule of the information falling within the scope of the information request. Following receipt of the schedule, Mr Kennedy identified more precisely the classes of documents, within the terms of his request, to which he sought access. He identified the following four categories: (i)     documents containing information explaining the Charity Commission’s conclusion that Mr Galloway may have known that Iraqi bodies were funding the Mariam Appeal; (ii)     documents from the Charity Commission inviting Mr Galloway to set out his position or speak to the Charity Commission and documents containing his response; (iii)     documents received by the Charity Commission from other public authorities and sent by the Charity Commission to them; and (iv)     documents containing information explaining why the Charity Commission had decided to start and continue the second inquiry. Mr Kennedy excluded from his request information to or from a foreign State or an international organisation and any document for which a claim of parliamentary privilege was asserted. He did this in order to ensure that his request did not interfere with interests protected by the FOIA and to keep the proceedings proportionate. On 14 June 2009 the Tribunal upheld the decision of the Information Commissioner that section 32 FOIA applied and was an absolute exemption in respect of the bulk of the requested material. It ordered that a small number of documents be disclosed unless another exemption applied. (b)     The High Court Mr Kennedy appealed to the High Court. He relied on arguments concerning the statutory interpretation of the Charities Act 1993 (see   “Relevant domestic law and practice”, below) and the FOIA. The appeal was refused on 19   January 2010 with the judge preferring the arguments of the Information Commissioner and the Charity Commission. He noted that it was agreed between the parties that section 32 created an absolute exemption and that it was the only one of all the exemptions in the FOIA which did not concern itself with the content of the information, the consequences of the disclosure or the public interest in disclosure. (c)     The Court of Appeal Mr Kennedy sought permission to appeal to the Court of Appeal. Permission was granted on one ground, namely that the judge had wrongly interpreted section 32(2) as conferring (i) a blanket exemption from disclosure that continued for thirty years after the conclusion of an inquiry regardless of the content, the harmlessness of the disclosure and the public interest of disclosure; and (ii) an exemption in respect of documents held by a public authority prior to the start of an inquiry. In light of recent decisions of this Court, namely Társaság a Szabadságjogokért v. Hungary , no.   37374/05, 14 April 2009, and Kenedi v.   Hungary , no. 31475/05, 26 May 2009, Mr Kennedy argued in particular that pursuant to section 3 of the Human Rights Act 1998 (see “Relevant domestic law and practice”, below), section 32(2) FOIA should be interpreted in a way compatible with the Convention, including in particular the right to freedom of expression guaranteed by Article 10. On 12 May 2011 the Court of Appeal delivered a judgment. Lord Justice Ward, giving the lead judgment, noted that, applying conventional principles of statutory construction, the Charity Commission’s interpretation of section 32(2) was to be preferred. However, he explained that the court had decided to refer the human rights issue to the Information Tribunal and to stay the appeal pending its determination. Lord Justice Jacob added: “47.     But for the question of whether it is necessary to read s.32(2) down so as to comply with the ECHR I would with reluctance dismiss the appeal. My reluctance stems from the absurdity which may arise from the conclusion. Mr Coppel [for the applicant] ... pointed out that the construction favoured by the Judge ... 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. The blanket ban would apply to each and every document deployed in the inquiry, even if those who deployed it were entirely content that it should be published. It means that the operation of the inquiry will not be open or fully open to public scrutiny for no apparent reason. 48.     My reason for being forced to this conclusion is the identity of s.32(1) and   s.32(2). 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.” (d)     Hearing before the First-tier Tribunal General Regulatory Chamber (Information Rights) Meanwhile, on 18 January 2010, the functions of the Information Tribunal were transferred to the First-tier Tribunal General Regulatory Chamber (Information Rights). A hearing before the First-tier Tribunal took place in October 2011. The applicant argued that a right of access to information could be derived from Article 10 of the Convention and that the refusal to disclose information amounted to an interference with freedom of expression. The Charity Commission, relying on Társaság , cited above, argued that there had to be an “information monopoly” (a term used in the Társaság judgment) before there could be an interference with freedom of expression by a refusal to provide access to documents, and that there was none in the present case. The applicant contended that an “information monopoly” was not necessary; and even if it was, there was such a monopoly in his case. On 18 November 2011 the Tribunal published its report to the Court of Appeal. It gave detailed and careful consideration to this Court’s case-law on Article 10 of the Convention. It concluded: “42.     As best we can the [Tribunal] considers that this developing jurisprudence is not necessarily granting a general right to receive information under Article 10. Such a general right of access still only exists as set out under Leander . It has advanced, however, towards a broader interpretation of the notion of freedom of information which has recognised an individual right of access conferred by Article 10(1) but which is subject to certain ‘formalities, conditions, restrictions or penalties’ described in Article 10(2). This may be where a social watchdog is involved and there is a genuine public interest as in Társaság or where historical research is being hindered on a matter of public importance as in Kenedi . It appears to us that this extension of scope of Article 10(1) is now being consistently applied and recognised by a number of chambers of the ECtHR. Our Court of Appeal has also recognised this as a clear development. In our view this has not led to a general right to receive information as that would be going too far. However it is now clear that the ECtHR has developed a wider approach from that first established in 1978 to the notion of ‘freedom to receive information’. There is now recognition of an individual right of access to information in certain circumstances. 43.     We try to explain this by reference to what the ECtHR says in Tarsasag which seem[s] to us to establish, particular[ly] in relation to social and media watchdogs, that: i)     Where a State makes no provision for a right of access to official information (at least so far as the right is needed to help inform public debate), that absence will itself constitute an interference with the right to freedom of expression which is protected by Article 10(1); ii)     Where a State does confer such a right of access but the right is shaped (i.e. so that there is no right of access outside its bounds), then for information falling outside the bounds of the right: (a)     there is an interference with the right to freedom of expression which is protected by Article 10(1); and (b)     that interference falls to be addressed by Article 10(2).” The Tribunal considered that Mr Kennedy was seeking to gather information on matters of public concern; that the Charity Commission, by refusal to disclose, was imposing a form of censorship; and that Mr   Kennedy’s right to impart information was also impaired. After examining the other individuals and bodies who potentially held the information, the Tribunal found that, whether or not an “information monopoly” was a necessary prerequisite for an interference with Article 10, there was such a monopoly in the applicant’s case. In view of the above, the Tribunal concluded that the conventional meaning of section 32(2) FIOA constituted an interference with Mr   Kennedy’s Article 10 rights. Turning to consider whether the interference was justified, the Tribunal accepted that the aim of the legislation was to protect information lodged with, or created during the course of, the inquiry and that this aim was legitimate. However, it found that the absolute exemption afforded by section 32(2) did not adequately balance the interests of society with those of individuals and groups, and concluded that the public interest in disclosure of information that was not properly withheld under other qualified exemptions available in the FOIA clearly outweighed any interest in its being withheld. The interference was therefore not “necessary in a democratic society”. In the view of the Tribunal, section 32(2) therefore had to be interpreted in a manner consistent with Article 10 by limiting the exemption from disclosure so that it ended upon the termination of the third inquiry in the present case. (e)     Restored hearing before the Court of Appeal On 20 March 2012 the Court of Appeal handed down its judgment in the restored appeal after hearing arguments from the parties. It referred to a recent judgment of the Supreme Court in Sugar v. British Broadcasting Corporation (see “Relevant domestic law and practice”, below), delivered after the Tribunal’s report, where that court had concluded that Article 10 did not apply to a request to the British Broadcasting Corporation, a public authority for the purposes of FOIA, for disclosure of a document. Considering itself bound by that judgment, the Court of Appeal held that Article 10 was not engaged on the facts of the case. Given this conclusion, the court declined to carry out an analysis of whether, if Article 10 had been engaged, the interference would have been justified pursuant to Article 10 §   2. The Court of Appeal granted leave to appeal to the Supreme Court since the issues raised on the appeal were important ones and in order to allow that court to consider the precise boundaries of Article 10. (f)     The Supreme Court Three issues were argued before the Supreme Court. First, whether as a matter of ordinary statutory construction, section 32(2) FOIA contained an absolute exemption which continued after the end of an inquiry; second, if so, whether that was compatible with Mr Kennedy’s rights under Article 10 of the Convention; and, third, if not, whether section 32(2) could be “read down” pursuant to the Human Rights Act 1998 (see “Relevant domestic law and practice”, below). The appeal was heard by a panel of seven justices. (i)     The court’s decision on the disposal of the appeal On 26 March 2014 the Supreme Court handed down its judgment. It dismissed Mr Kennedy’s appeal by a majority of five justices. All the justices agreed that Mr Kennedy’s request for information pertained to a matter of considerable public importance and that there was a public interest in the information he sought. However, the majority declined to analyse the case in the manner presented by Mr Kennedy. Lord Mance explained at the outset: “6.     Section 32 is a section dealing with information held by courts and persons conducting an inquiry or arbitration. Its intention was not that such information should not be disclosed. Its intention was to take such information outside the FOIA. Any question as to its disclosure was to be addressed under the different and more specific schemes and mechanisms which govern the operations of and disclosure by courts, arbitrators or persons conducting inquiries. With regard to the Charity Commission the relevant scheme and mechanism is found in the Charities Act 1993, as amended by the Charities Act 2006 (since replaced by the Charities Act 2011), the construction of which is informed by a background of general common law principles. In the present case, the focus has, however, been on the FOIA as if it were an exhaustive scheme. The argument has been, in effect, that, unless a prima facie right to disclosure can be found in the FOIA, United Kingdom law must be defective, and in breach of what is said to be the true interpretation of article 10 of the European Convention on Human Rights. But that misreads the statutory scheme, and omits to take into account the statutory and common law position to which, in the light of sections 32 and 78 in particular, attention must be addressed.” In respect of the first issue argued, the majority held that section 32(2) FOIA had to be construed as providing an absolute exemption from disclosure which did not cease upon the conclusion on the inquiry but continued until the information sought became “historical records” within the meaning of section 63 FOIA (see “Relevant domestic law and practice”, below). However, before turning to the second issue, i.e. the applicability and requirements of Article 10 of the Convention, the majority considered it necessary to examine whether the Charity Commission might be required to disclose information under other statutory or common law powers preserved by section 78 FOIA (see “Relevant domestic law and practice”, below). They agreed that the Charity Commission had the power to disclose information to the public concerning its inquiries both in pursuit of its statutory objectives under the Charities Act 1993 of increasing public trust in and accountability of charities, as well as under the general common law duties of openness and transparency incumbent on public authorities. The exercise of that power was subject to judicial review by the courts. They explained that since the Charities Act, bolstered by the common law principle of open justice, put Mr Kennedy in a no-less-favourable position regarding disclosure than he would have under Article 10, there was no question of “reading down” section 32(2) or finding it to be inconsistent with Article 10. Lord Mance said: “51.     I do not therefore agree with Jacob LJ’s comment in the Court of Appeal (para   48) that Parliament must ‘simply [have] 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’ and that that ‘may well have been a blunder which needs looking at’. That overlooks the statutory scheme of the FOIA and the Charities Act. It also fails to give due weight to the courts’ power to ensure disclosure by the Charity Commission in accordance with its duties of openness and transparency. Again, I find it difficult to think that there would be any significant difference in the nature or outcome of a court’s scrutiny of any decision by the Commission to withhold disclosure of information needed in order properly to understand a report issued after a Charities Act inquiry, whether such scrutiny be based solely on the Charity Commission’s objectives, functions and duties under the Charities Act or whether it can also be based on article 10, read in the width that [counsel for Mr Kennedy] invites. The common law no longer insists on the uniform application of the rigid test of irrationality once thought applicable under the so-called Wednesbury principle. The nature of judicial review in every case depends upon the context ...” As to the operation of the alternative remedy in the applicant’s case and the scope of judicial review, Lord Mance said: “56.     The Charity Commission’s response to a request for disclosure of information is in the light of the above circumscribed by its statutory objectives, functions and duties. If, as here, the information is of genuine public interest and is requested for important journalistic purposes, the Charity Commission must show some persuasive countervailing considerations to outweigh the strong prima facie case that the information should be disclosed. In any proceedings for judicial review of a refusal by the Charity Commission to give effect to such a request, it would be necessary for the court to place itself so far as possible in the same position as the Charity Commission, including perhaps by inspecting the material sought. Only in that way could it undertake any review to ascertain whether the relevant interests had been properly balanced. The interests involved and the balancing exercise would be of a nature with which the court is familiar and accustomed to evaluate and undertake. The Charity Commission’s own evaluation would have weight, as it would under article 10. But the Charity Commission’s objectives, functions and duties under the Charities Act and the nature and importance of the interests involved limit the scope of the response open to the Charity Commission in respect of any particular request. I therefore doubt whether there could or would be any real difference in the outcome of any judicial review of a Charity Commission refusal to disclose information, whether this was conducted under article 10, as [counsel for Mr Kennedy] submits that it should be, or not.” Concerning the ability of a public body to disclose information it holds, Lord Toulson said: “107.     Every public body exists for the service of the public, notwithstanding that it may owe particular duties to individual members of the public which may limit what it can properly make public ... There may also be other reasons, apart from duties of confidentiality, why it would not be in the public interest or would be unduly burdensome for a public body to disclose matters to the public, but the idea that, as a general proposition, a public body needs particular authority to provide information about its activities to the public is misconceived.” On the specific issues raised by the case, he said: “134.     In the present case the inquiries which the Charity Commission conducted, under section 8 of the Charities Act 1993, into the operations of a charity formed by Mr George Galloway MP were of significant public interest. At the end of the inquiries the Commission published its conclusions, but the information provided as to its reasons for the findings which it made and, more particularly, did not make, was sparse. As a journalist, Mr Kennedy had good cause to want to probe further. It is possible that the Charity Commission may have had reasons for not wishing to divulge any further information, but such is the course which the proceedings have taken that it is impossible to tell at this stage. 135.     I regard it as unfortunate that Mr Kennedy’s request for further information was based solely on FOIA. I have considerable disquiet that Mr Kennedy has been unable to learn more about the Charity Commission’s inquiries and reasons for its conclusions, and I should like, if possible, for there to be a proper exploration whether the Charity Commission should provide more. I am clear that this could be done through the common law, but it cannot be done through FOIA unless section 32(2) can properly be circumvented. I agree with Lord Mance that if article 10 applies in the present case, it is fulfilled by the domestic law ...” He concluded that the common law approach was “140.     ... sound in principle, runs with the grain of FOIA; it does not involve countermanding Parliament’s decision to exclude inquiry documents from the scope of the Act; and it is consistent with the judgment of Parliament that in this context statutory inquiries should be viewed in the same way as judicial proceedings. It also produces a more just result, because a court is able to exercise a broad judgment about where the public interest lies in infinitely variable circumstances whereas the Information Commissioner would not have such a power.” Lord Sumption commented: “156.     The point about section 32 is that it deals with a category of information which did not need to be covered by the Act, because it was already the law that information in this category was information for which there was an entitlement if the public interest required it ... [T]he relevant principles of law are to be found in rules of court and in the powers and duties of public authorities holding documents supplied to an inquiry, as those powers and duties have been interpreted by the Courts and applied in accordance with general principles of public law. It cannot plausibly be suggested that this corpus of law fails to meet the requirements of article 10 of the Convention that any restrictions on the right recognised in article 10(1) should be ‘prescribed by law’. Its continued operation side by side with the statutory scheme under the Freedom of Information Act is expressly preserved by section 78 of that Act. This section overtly recognises that the Act is not a complete code but applies in conjunction with other rules of English law dealing with disclosure. 157.     Much of the forensic force of the Appellant’s argument arises from the implicit (and occasionally explicit) assumption that there could be no proper reason in the public interest for denying Mr Kennedy the information that he seeks. Therefore, it is suggested, the law is not giving proper effect to the public interest because it is putting unnecessary legal or procedural obstacles in Mr Kennedy’s way. I reject this suggestion. It is true that there is a legitimate public interest in the disclosure of information relevant to the performance of the Charity Commission’s inquiry functions, and to this inquiry in particular. But the Charity Commission has never been asked to disclose the information under its general powers. It has only been asked to disclose it under a particular statute from which the information in question is absolutely exempt. This is not just a procedural nicety. If the Commission had been asked to disclose under its general powers, it would have had to consider the public interest considerations for and against disclosure which were relevant to the performance of its statutory functions under the Charities Act. Its assessment of these matters would in principle have been reviewable by the court. In fact, it has never been called upon to carry out this assessment, because Mr Kennedy chose to call for the information under an enactment which did not apply to the information which he wanted. 158.     We cannot know what the decision of the Charity Commission would have been if they had been required to exercise their powers under the Charities Act. We know nothing about the contents or the source of the information in the documents held by the Commission, or the basis on which it was obtained, apart from the limited facts which can be inferred from its report, the schedule of documents and the evidence in these proceedings. Because this appeal is concerned only with the effect of section 32, and the Convention so far as it bears on section 32, none of this material has been relevant and we have not seen it.” In short, the majority held that the correct reading of section 32 was not that information pertaining to inquiries benefitted from a blanket exemption from disclosure but that such information was taken outside the framework of FOIA since an alternative means of obtaining disclosure already existed. It was therefore for Mr Kennedy to make a request to the Charity Commission under its general powers of disclosure and for the Charity Commission to consider the public interest in disclosure and weigh any competing private or public interests in the balance. Lords Wilson and Carnwath dissented, holding that Article 10 did give rise to a general right of access to information and that section 32(2) should be read down so that the exemption it afforded ended with the conclusion of the inquiry. To hold otherwise would amount to a disproportionate interference with Mr Kennedy’s Article 10 rights. The two justices expressed disquiet at the common law remedy relied upon by the majority. Lord Wilson pointed out that it had never been suggested to Mr Kennedy that his request should be made otherwise that under the FOIA. He continued: “198.     In my view the scheme identified by the majority for disclosure by the commission outside the FOIA is profoundly unsatisfactory. With respect, it can scarcely be described as a scheme at all and there is certainly no example of its prior operation or other recognition of its existence. Compare it with the scheme under the FOIA which, apart from the apparent prohibition for 30 years, identifies an elaborate raft of prescribed situations in which the Commission is entitled, or subject to the weighing of rival interests may be entitled, to refuse disclosure; and under which a refusal can be countered by application to an expert, namely the Information Commissioner, who takes the decision for himself (section 50(1)) and whose decision can be challenged on points of law or even of fact by an expert tribunal (section 58(1)) and in effect without risk as to costs. 199.     Although the majority of my colleagues reject Mr Kennedy’s assertion that he has rights under article 10 which are engaged by his request for disclosure by the Commission, they proceed to suggest that his entitlement to disclosure otherwise than under the FOIA would be likely to be as extensive as any entitlement under article 10 ... The suggested scheme otherwise than under the FOIA is so vague and generalised that I regard the determination thereunder of any request for disclosure as impossible to predict. It may be that, in practice, the Commission and, on judicial review, the High Court judge would reach for the helpful prescriptions in the FOIA and, in effect, work in its shadow. But if, as I consider, Mr Kennedy’s rights under article 10 are engaged by his request, I even have doubts whether any refusal to disclose a document otherwise than under the FOIA could be justified under para 2 of the article. For restrictions on the exercise of his rights under article 10 must be ‘prescribed by law’, which in the words of the ECtHR, ‘must... be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct’ ... It is possible that the so-called scheme for disclosure otherwise than under the FOIA might fail that test ...” Lord Carnwath said: “230.     ... It seems to me clear that the scheme established by FOIA was intended to be a comprehensive, albeit not necessarily exhaustive, legislative code governing duties of disclosure by the public authorities to which it applied. It is entitled: ‘An Act to make provision for the disclosure of information held by public authorities...’ The preceding White Paper (Your Right to Know: The Government’s Proposals for a Freedom of Information Act (Cm 3818)(1997)) stated that its purpose was to create ‘a general statutory right of access to official records and information’ (para 1.2) and that it should have ‘very wide application’ applying ‘across the public sector as a whole, at national, regional and local level’ (para 2.1). 231.     Further it was designed to create ‘rights’ for the public, enforceable by a simple, specialist and generally cost-free procedure, rather than simply discretionary powers enforceable by the ordinary courts only on conventional public law principles. In considering whether the ‘legislation’ is compatible with the Convention rights for the purpose of section 3 [of the Human Rights Act], we should direct attention to the legislative code as so established by the Act, rather than to powers or remedies which may be available from other legal sources. Furthermore, I agree ... that recourse to the courts, even given the flexibility allowed by the developing principles ..., remains more cumbersome (and more costly) than the specialised procedures provided by the Act. 232.     In so far as it is permissible to take policy considerations into account, I see advantage in an interpretation which allows such cases to be dealt with through the specialist bodies established by the Act, rather than the ordinary courts. I am impressed also by the lack of any apparent policy reason for extending the full exemption under section 32 to public inquiries of this kind ...” He was not persuaded that the “open justice” principle applied to inquiries and found it hard to accept that any general powers of disclosure were comparable to the scope of disclosure from which Mr Kennedy would benefit under Article 10 of the Convention. He added: “247.     ... I remain unpersuaded that domestic judicial review, even adopting the most flexible view of the developing jurisprudence, can achieve the same practical effect in a case such as the present as full merits review under FOIA or the HRA.” (ii)     The discussion of the applicability and scope of Article 10 Notwithstanding the majority view that Article 10 was not relevant to the outcome of the appeal, there was detailed discussion by the justices of this Court’s case-law. The majority referred to the Court’s inconsistency as regards the extent to which a general right of access to information arose under Article 10. They pointed out that older judgements, a number of which had been adopted by the full plenary Court or the Grand Chamber, indicated that Article 10 only protected the right to receive information which others wished or were willing to impart and did not give rise to a general right of access to information (citing, for example, Leander v. Sweden , 26 March 1987, Series   A no. 116; Gaskin v.   the United Kingdom , 7 July 1989, Series   A no.   160; Guerra and Others v.   Italy , 19 February 1998, Reports of Judgments and Decisions 1998 ‑ I; and Roche v. the United Kingdom [GC], no.   32555/96, ECHR 2005 ‑ X). Although a number of recent Chamber judgments had departed from this position, the majority justices were of the view that they had failed to give a clearly reasoned analysis of the matter or to explain why they had departed from earlier authority (citing Sdružení   Jihočeské Matky v. the Czech Republic (dec.), no.   19101/03, 10 July 2006; Társaság a Szabadságjogokért v. Hungary , no. 37374/05, 14 April 2009; Kenedi v.   Hungary , no. 31475/05, 26 May 2009; Shapovalov v.   Ukraine, no.   45835/05, 31 July 2012; Youth Initiative for Human Rights v.   Serbia , no.   48135/06, 25 June 2013; and Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung v. Austria , no. 39534/07, 28 November 2013). The majority also referred to the fact that the new approach that these recent Chamber judgments appeared to follow had not been endorsed by the Grand Chamber. Lord Mance said: “59.     The Strasbourg jurisprudence is neither clear nor easy to reconcile. In Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, [2010] 2   AC 269 Lord Rodger said famously: ‘Argentoratum locutum: iudicium finitum – Strasbourg has spoken, the case is closed’. In the present case, Strasbourg has spoken on a number of occasions to apparently different effects. Further, a number of these occasions are Grand Chamber decisions, which do contain apparently clear-cut statements of principle. But they are surrounded by individual section decisions, which appear to suggest that at least some members of the Court disagree with and wish to move on from the Grand Chamber statements of principle. If that is a correct reading, then it may be unfortunate that the relevant sections did not prefer to release the matter before them to a Grand Chamber. It is not helpful for national courts seeking to take into account the jurisprudence of the European Court of Human Rights to have different section decisions pointing in directions inconsistent with Grand Chamber authority without clear explanation.” After a detailed examination of this Court’s case-law, he concluded: “94.     Had it been decisive for the outcome of this appeal, I would have considered that, in the present unsatisfactory state of the Strasbourg case law, the Grand Chamber statements on article 10 should continue to be regarded as reflecting a valid general principle, applicable at least in cases where the relevant public authority is under no domestic duty of disclosure. The Grand Chamber statements are underpinned not only by the way in which article 10(1) is worded, but by the consideration that the contrary view – that article 10(1) contains a prima facie duty of disclosure of all matters of public interest – leads to a proposition that no national regulation of such disclosure is required at all, before such a duty arises. Article 10 would itself become a European ‑ wide Freedom of Information law. But it would be a law lacking the specific provisions and qualifications which are in practice debated and fashioned by national legislatures according to national conditions and are set out in national Freedom of Information statutes.” Lord Toulson said: “145.     What is so far lacking from the more recent Strasbourg decisions, with respect, is a consistent and clearly reasoned analysis of the ‘right to receive and impart information’ within the meaning of article 10, particularly in the light of the earlier Grand Chamber decisions. [Counsel for Mr Kennedy] submits that the court’s ‘direction of travel’ is clear, but the metaphor suggests that the route and destination are undetermined. If article 10 is to be understood as founding a right of access to information held by a public body, which the public body is neither required to provide under its domestic law nor is willing to provide, there is a clear need to determine the principle or principles by reference to which a court is to decide whether such a right exists in a particular case and what are its limits.” Lord Sumption said: “154.     The right to receive information under article 10 of the Human Rights Convention has generated a number of decisions of the European Court of Human Rights, which take a variety of inconsistent positions for reasons that are not always apparent from the judgments. The more authoritative of these decisions, and the ones more consonant with the scheme and language of the Convention, are authority for the proposition that article 10 recognises a right in the citizen not to be impeded by the state in the exercise of such right of access to information as he may already have under domestic law. It does not itself create such a right of access. Other decisions, while ostensibly acknowledging the authority of the principle set out in these cases, appear to point towards a different and inconsistent view, namely that there may be a positive obligation on the part of the state to impart information under article 10, and a corresponding right in the citizen to receive it. However if (contrary to my view) there is a Convention right to receive information from public authorities which would not otherwise be available, no decision of the European Court of Human Rights suggests that it can be absolute or exercisable irrespective of the public interest. Accordingly, since disclosure under the Freedom of Information Act depends upon an assessment of the public interest, it is difficult to discern any basis on which the scheme as such can be regarded incompatible with the Convention, whichever of the two approaches is correct. Of course, the Strasbourg court may decide that the statutory scheme is compatible, but that particular decisions under it are not. But this case is concerned with the compatibility of the scheme, not the particular decision.” As noted above, the minority were satisfied that a right to require an unwilling public authority to disclose information could arise under Article   10 of the Convention. Lord Wilson said: “188.     I cannot subscribe to the view that the development of article 10 which was in effect initiated in the Társaság case has somehow been irregular. The wider approach is not in conflict with the ‘basic’ Leander approach: it is a dynamic extension of it. The judgment in the Társaság case is not some arguably rogue decision which, unless and until squarely validated by the Grand Chamber, should be put to one side. Its importance was quickly and generally recognized ... 189.     In the light of the judgments of the ECtHR ... this court should now in my view confidently conclude that a right to require an unwilling public authority to disclose information can arise under article 10. In no sense does this betoken some indiscriminate exposure of sensitive information held by public authorities to general scrutiny. The jurisprudence of the ECtHR, of which this court must always take account and which in my view it should in this instance adopt, is no more than that in some circumstances article 10 requires disclosure. In what circumstances? These will fall to be more clearly identified in the time-honoured way as, in both courts, the contours of the right are tested within particular proceedings. The evolution of the right out of ‘freedom of expression’ clearly justifies the stress laid by the ECtHR on the need for the subject-matter of the request to be of public importance. No doubt it also explains the importance attached by that court to the status of the applicant as a social watchdog; whether that status should be a pre-requisite of the engagement of the right or whether it should fall to be weighed in assessing the proportionality of any restriction of it remains to be seen. Equally references in the ECtHR to the monopoly of the public authority over the information may need to find their logical place within the analysis: thus, in the absence of a monopoly, an authority’s non-disclosure may not amount to an interference. Where the article is engaged and where interference is established, the inquiry will turn to justification under para 2. If refusal of disclosure has been made in accord