The Supreme Court’s judgment last week in Kennedy v The Charity Commission  UKSC 20 is the latest in a series of decisions—including, most notably, R (HS2 Action Alliance Ltd) v Secretary of State for Transport  UKSC 3 (see this post) and Osborn v Parole Board  UKSC 61 (see this post)—in which the Court has placed very specific emphasis on the common law, as opposed to the Human Rights Act 1998 and the European Convention on Human Rights, as a source of fundamental rights and values.
The issue, for present purposes, can be stated relatively briefly. The Charity Commission refused to disclose certain information to the claimant journalist on the ground that the information fell within section 32(2) of the Freedom of Information Act 2000. It says:
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.
If information falls within the exemption created by section 32(2), the effect (by dint of section 2(3)) is that it is absolutely exempt from disclosure. One of the issues in Kennedy was whether information remained exempt once the inquiry in question was over. The Court held that it did: it remained exempt for 30 years, until such time as it became a historical record.
The common law and the Convention
The claimant sought—unsuccessfully—to resist this construction by invoking Article 10 ECHR. This, he contended, included a right to receive information from public authorities—which right would prima facie be breached if section 32(2) were to be taken to confer an absolute exemption. The claimant therefore argued that section 32(2) should be “read down” so as to secure compliance with (what he considered to be) the demands of Article 10. Giving one of the leading judgments, Lord Mance (with whom Lords Neuberger and Clarke agreed, and with whom Lord Sumption also expressed agreement in a short concurring judgment) criticised what he perceived to be undue emphasis upon the Convention:
Since the passing of the Human Rights Act 1998, there has too often been a tendency to see the law in areas touched on by the Convention solely in terms of the Convention rights. But the Convention rights represent a threshold protection; and, especially in view of the contribution which common lawyers made to the Convention’s inception, they may be expected, at least generally even if not always, to reflect and to find their homologue in the common or domestic statute law. Not surprisingly, therefore, Lord Goff of Chieveley in Attorney General v Guardian Newspapers Ltd (No 2)  1 AC 109, 282-284 and the House in Derbyshire County Council v The Times Newspapers Ltd  AC 534, 551E both expressed the view that in the field of freedom of speech there was no difference in principle between English law and article 10. In some areas, the common law may go further than the Convention, and in some contexts it may also be inspired by the Convention rights and jurisprudence (the protection of privacy being a notable example). And in time, of course, a synthesis may emerge. But the natural starting point in any dispute is to start with domestic law, and it is certainly not to focus exclusively on the Convention rights, without surveying the wider common law scene. As Toulson LJ also said in [R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court  EWCA Civ 420,  QB 618], para 88: “The development of the common law did not come to an end on the passing of the Human Rights Act 1998. It is in vigorous health and flourishing in many parts of the world which share a common legal tradition”. Greater focus in domestic litigation on the domestic legal position might also have the incidental benefit that less time was taken in domestic courts seeking to interpret and reconcile different judgments (often only given by individual sections of the European Court of Human Rights) in a way which that Court itself, not being bound by any doctrine of precedent, would not itself undertake.
A similar approach was taken by Lord Toulson, giving the other leading judgment (with which Lords Neuberger and Clarke agreed, and with which Lord Sumption also expressed agreement in a short concurring judgment):
What we now term human rights law and public law has developed through our common law over a long period of time. The process has quickened since the end of World War II in response to the growth of bureaucratic powers on the part of the state and the creation of multitudinous administrative agencies affecting many aspects of the citizen’s daily life. The growth of the state has presented the courts with new challenges to which they have responded by a process of gradual adaption and development of the common law to meet current needs. This has always been the way of the common law and it has not ceased on the enactment of the Human Rights Act 1998, although since then there has sometimes been a baleful and unnecessary tendency to overlook the common law. It needs to be emphasised that it was not the purpose of the Human Rights Act that the common law should become an ossuary.
Against this background, the majority concluded that what was centrally at issue was (as Lord Mance put it) the “common law presumption in favour of openness”. Relevant legislation, including the Charities Act 1993 which governs the operation of the Charity Commission, fell to be interpreted in the light of that presumption (with consequences that are outlined below). For the time being, the significant point is that, as noted at the beginning of this post, the reasoning of the majority in Kennedy—which emphasizes the fertility and richness of the common law as a source of fundamental rights and values—falls increasingly to be understood as part of a new stream of constitutional jurisprudence emerging from the Supreme Court. It arguably represents a renaissance in this area, as common-law constitutionalism emerges from the shadow of the Human Rights Act. One of the likely implications of this phenomenon may turn out to be that if the HRA ceases to cast any such shadow—by virtue of being repealed at the behest of a future government—the common-law constitutional landscape that is left behind may be remarkably similar to the situation that has obtained during the era of the HRA. Indeed, Kennedy suggests that, at least in some respects, the common law may already go further than corresponding provisions of the Convention.
Proportionality: a common-law principle of review?
The fact that the Supreme Court concluded, by a majority of five to two, that the information in question benefitted from an absolute exemption under the FoIA did not mean that it was necessarily immune from disclosure, since the possibility arose that its disclosure might be legally required outwith the FoIA regime. This is so not least because any refusal by the Charity Commission to release information would be subject to judicial review, notwithstanding the information’s status as absolutely exempt from disclosure under the FoIA. In particular, such a refusal would be open to challenge on reasonableness grounds—and, as Lord Mance pointed out:
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 Professor Paul Craig has shown (see e.g. “The Nature of Reasonableness” (2013) 66 CLP 131), both reasonableness review and proportionality involve considerations of weight and balance, with the intensity of the scrutiny and the weight to be given to any primary decision maker’s view depending on the context. 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. There seems no reason why such factors should not be relevant in judicial review even outside the scope of Convention and EU law. Whatever the context, the court deploying them must be aware that they overlap potentially and that the intensity with which they are applied is heavily dependent on the context. In the context of fundamental rights, it is a truism that the scrutiny is likely to be more intense than where other interests are involved. But that proportionality itself is not always equated with intense scrutiny was clearly identified by Lord Bingham of Cornhill CJ in R v Secretary of State for Health, Ex p Eastside Cheese Co  3 CMLR 123, paras 41-49, which Laws and Arden LJJ and Lord Neuberger MR cited and discussed at paras 21, 133 and 196-200 in R (Sinclair Collis Ltd) v Secretary of State for Health  EWCA Civ 437,  QB 394, a case in which the general considerations governing proportionality were treated as relevantly identical under EU and Convention law (paras 54, 147 and 192-194). As Lord Bingham explained, at para 47, proportionality review may itself be limited in context to examining whether the exercise of a power involved some manifest error or a clear excess of the bounds of discretion – a point taken up and amplified in the Sinclair Collis case, at paras 126-134 and 203 by Arden LJ and by Lord Neuberger; see also Edward and Lane on European Union Law (2013), para 2.32.
On one reading, Lord Mance can be taken to be arguing here for the reception into purely domestic cases—that is, cases lacking an EU or ECHR/HRA dimension—of the proportionality test. This is reflected both in his suggestion that proportionality may be preferable to Wednesbury (on account of the former’s greater structure), and in his attempt to defend proportionality against charges of undue intensity by pointing out that it is capable of being applied in a less-demanding manner.
I return to this aspect of Lord Mance’s judgment below. First, however, note the following passage from Lord Toulson’s judgment:
Given that a decision by a public authority about disclosure of information or documents regarding a statutory inquiry is capable of judicial review, what should be the standard of review? The normal standard applied by a court reviewing a decision of a statutory body is whether it was unreasonable in the Wednesbury sense (ie beyond rational justification), but we are not here concerned with a decision as to the outcome of the inquiry. We are concerned with its transparency. If there is a challenge to the High Court against a refusal of disclosure by a lower court or tribunal, the High Court would decide for itself the question whether the open justice principle required disclosure. Guardian News provides an example. I do not see a good reason for adopting a different approach in the case of a statutory inquiry, but the court should give due weight to the decision and, more particularly, the reasons given by the public authority (in the same way that it would to the decision and reasons of a lower court or tribunal). The reason for the High Court deciding itself whether the open justice principle requires disclosure of the relevant information is linked to the reason for the principle. It is in the interests of public confidence that the higher court should exercise its own judgment in the matter and that information which it considers ought to be disclosed is disclosed.
Lord Toulson’s suggestion that the “High Court would decide for itself the question whether the open justice principle required disclosure” may be thought to support an approach that amounts to proportionality review in defence of the common-law value of transparency—thereby indicating that Lords Toulson and Mance are in broad agreement on this point. However, it is clear that Lord Toulson (rightly or wrongly) considers that judicial review in circumstances such as these would not be substantive review in its classic, outcomes-oriented sense, and that his approach may instead be based upon narrower grounds concerning the institutional particularities of the situation. Meanwhile, although Lord Carnwath explicitly mentions proportionality in his dissenting judgment, he does so in a way that offers no direct support for its invocation in purely domestic cases:
Lord Mance also quotes my own discussion of the developing principles as I saw them in 2004, in IBA Health Ltd v Office of Fair Trading  EWCA Civ 142  ICR 1364, para 88ff. Ten years on that statement holds good in my view, but the jurisprudential basis for the more flexible approach, and its practical consequences in different legal and factual contexts, remain uncertain and open to debate (see de Smith op cit paras 11-086ff and the many authorities and academic texts there cited). In particular, it is at best uncertain to what extent the proportionality test, which is an essential feature of article 10(2) as interpreted by the Strasbourg court, has become part of domestic public law (see de Smith paras 11-073ff).
It is only, then, Lord Mance’s judgment that specifically contemplates that proportionality might play some role in purely domestic cases. Yet it would be a mistake to view even Lord Mance’s judgment as a straightforward endorsement of the view that proportionality should operate in such cases, let alone that it should supplant Wednesbury across the board. In fact, Lord Mance’s position is more subtle:
Speaking generally, it may be true (as Laws J said in a passage also quoted by Lord Bingham from R v Ministry of Agriculture, Fisheries and Food, Ex p First City Trading  1 CMLR 250, 278-279) that “Wednesbury and European review are two different models – one looser, one tighter –of the same juridical concept, which is the imposition of compulsory standards on decision-makers so as to secure the repudiation of arbitrary power”. But the right approach is now surely to recognise, as de Smith’s Judicial Review, 7th ed (2013), para 11-028 suggests, that it is inappropriate to treat all cases of judicial review together under a general but vague principle of reasonableness, and preferable to look for the underlying tenet or principle which indicates the basis on which the court should approach any administrative law challenge in a particular situation. Among the categories of situation identified in de Smith are those where a common law right or constitutional principle is in issue. In the present case, the issue concerns the principles of accountability and transparency, which are contained in the Charities Act and reinforced by common law considerations and which have particular relevance in relation to a report by which the Charity Commission makes to explain to the public its conduct and the outcome of an inquiry undertaken in the public interest.
This approach is, I think, in line with one that I have advocated elsewhere. It places less emphasis than we are accustomed to placing upon formal, doctrinal questions, such as whether the test should be one of reasonableness or proportionality. Instead, it calls for a more nuanced analysis that takes account both of the importance of the value threatened by the impugned decision as well as the constitutional and institutional constraints that may operate to limit the legitimate nature and intensity of judicial scrutiny. On this approach, no bright line falls to be drawn between between human-rights (proportionality) and other (Wednesbury) cases: thus a “bifurcated view” of administrative law, as the late Professor Michael Taggart put it, is rejected in favour of something more finely calibrated.
This should not be taken as a licence to fall back upon the superficially-appealing but intellectually-vacuous notion that “context is everything”. However, provided that that pitfall can be avoided, the more finely-grained approach arguably endorsed by Lord Mance seems to me to be a helpful way of looking at things. It is of a piece with the other aspect of the Kennedy judgment to which attention is drawn in the first part of this post, according to which the common law itself is increasingly regarded as a repository of fundamental constitutional values (including, but not only, human rights). This, in turn, suggests that it is unsatisfactory to attempt cleanly to demarcate the respective provinces of proportionality and Wednesbury by reference to formalistic considerations such as whether the HRA (or EU law) is in play. What is required instead is a more difficult, but ultimately more meaningful, analysis that engages with the constitutional values implicated in the case and seeks to tailor judicial review accordingly. Such an approach to substantive review is of a piece with—and a necessary corollary of—the Supreme Court’s increasing willingness to invoke the common-law constitution as the source of the substantive values whose prima facie infraction properly makes an administrative decision a candidate for substantive review in the first place.