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In 1998, George Galloway mounted the Mariam Appeal, which was created to assist a girl living in Iraq to come to the UK to receive treatment for her leukaemia. Mr Kennedy, a journalist with The Times, began investigating the Mariam Appeal as he believed that its activities actually extended to campaigning against Israel and against sanctions on Iraq. As a result of the publicity, the Charity Commission (CC) investigated the situation and, in 2004, offered what Mr Kennedy viewed as rather superficial conclusions.
In 2005, the UN appointed a committee that concluded, among other things, that the Mariam Appeal had received donations linked to the Oil-for-Food Programme. The CC then began another inquiry. Following the completion of that inquiry, Mr Kennedy made a request under the Freedom of Information Act 2000 (FOIA) for information concerning the inquiry. The CC refused to provide that information on the grounds that it was exempt under s32(2) of FOIA. This case concerned the proper interpretation of that exemption.
The issue was whether the language of s32(2) exempted information from disclosure only for the duration of an inquiry (the Appellant’s interpretation) or whether the exemption continued after its conclusion (the CC’s interpretation). Ward LJ, with whom Jacob and Etherton LJJ agreed on this point, gave the fullest judgment on the issue of interpretation. Ward LJ found that:
(a) as a matter of grammar, it was not clear which interpretation was to be preferred;
(b) looking at the purpose of FOIA, restrictions were to be construed narrowly - this was a point in favour of the Appellant, albeit not a determinative one;
(c) looking at s32 as a whole (which included restrictions on information relating to court proceedings as well as inquiries and arbitrations) it was clear that Parliament had intended to exclude a whole class of documents irrespective of their content;
(d) section 63(1) of FOIA assisted in interpreting s32(2), because to interpret it in accordance with the Appellant’s submissions would render s63(1) otiose; and
(e) whilst examining statutory language in the light of later statutes was not a powerful tool of interpretation, section 18(3) of the Inquiries Act 2005 would not be necessary if the Claimant’s interpretation was correct.
Therefore, taking all that into account, the Court of Appeal agreed with the CC’s interpretation that the exemption in s32(2) applied even after the inquiry proceedings had been completed.
In the Court of Appeal the Appellant raised for the first time a submission that s32(2) should be read down pursuant to s3 of the Human Rights Act 1998 in order to make it compliant with Article 10 of the ECHR. As none of the necessary findings of fact, and evaluative judgments, in relation to that issue had been made by the lower courts, the Court of Appeal remitted that issue to the First-tier Tribunal (Information Rights) for determination.
Jason Beer QC is experienced in public law, police law and inquiries and was described in Chambers 2011 as "phenomenally bright" and as a barrister who "stands out head and shoulders above the rest". Jason frequently appears in the appellate courts.