Background
Cruelty Free International, an organisation campaigning against animal experiments, requested information from the Home Office about licences authorising animal testing of ingredients used in certain cosmetic products. It sought, among other things, to understand how the Home Office had applied the statutory harm-benefit test when granting the licences.
The Home Office disclosed some material but maintained substantial redactions. It relied on the absolute exemption in section 44(1)(a) of the Freedom of Information Act 2000, together with section 24 of the Animals (Scientific Procedures) Act 1986, which criminalises certain disclosures of information given in confidence. The Information Commissioner upheld that position, and the First-tier Tribunal dismissed Cruelty Free International’s appeal. The organisation then appealed to the Upper Tribunal, arguing principally that the statutory prohibition was incompatible with its Article 10 right to receive information.
The Court’s Holding
The Upper Tribunal held that the First-tier Tribunal and Upper Tribunal had jurisdiction to consider the construction and application of section 24 in determining whether the FOIA exemption applied. Although the First-tier Tribunal had made comments suggesting judicial review was the appropriate route, it had not actually declined jurisdiction, so those comments did not constitute a material error affecting its decision.
The Upper Tribunal nevertheless set aside the First-tier Tribunal’s decision because it had erred by treating domestic precedent as preventing application of the limited Article 10 right to receive information recognised in Magyar Helsinki Bizottság v Hungary. Cruelty Free International satisfied the relevant criteria as a public watchdog seeking ready and available information to facilitate public-interest scrutiny. With no practical alternative means of obtaining the information, the statutory prohibition interfered with that right. The blanket restriction was disproportionate because it allowed no balancing of the public interest in disclosure against confidentiality, commercial, safety, and regulatory interests.
Despite finding an unjustified interference with Article 10, the Upper Tribunal refused the underlying FOIA appeal when remaking the decision. Reading a public-interest defence or balancing test into section 24 would impermissibly alter a penal provision and amount to judicial legislation, exceeding the interpretive power in section 3 of the Human Rights Act 1998. The Upper Tribunal also lacked power to issue a declaration of incompatibility.
Key Takeaways
- FOIA tribunals may interpret and apply legislation outside FOIA when deciding whether the section 44 statutory-prohibition exemption applies.
- Tribunals are not barred by the earlier domestic authorities considered in this case from recognising the limited Article 10 right to receive information established in Magyar.
- A tribunal may find that legislation violates a Convention right yet remain unable to provide relief where a compatible interpretation is impossible and it lacks authority to declare the legislation incompatible.
Why It Matters
The decision recognises that an NGO acting as a public watchdog can have an Article 10 right to obtain government-held information needed to scrutinise the exercise of public power. It also finds that the combined effect of section 44 FOIA and section 24 ASPA is disproportionate where it categorically forecloses any assessment of competing interests.
At the same time, the judgment exposes the remedial limits of the tribunal system. The information remained exempt and the appeal was refused because only legislative change or relief from a court empowered to make a declaration of incompatibility could address the statutory bar.