For 15 years, there has been extensive dispute over whether Article 10 ECHR applies to, or affects, requests under information access legislation (the Freedom of Information Act 2000 (“FOIA”) and Environmental Information Regulations 2004).
The latest word is the decision of a three-judge panel of the Upper Tribunal in Cruelty Free International v Information Commissioner & Home Office 2026 [UKUT] 328 (AAC).
The campaign group (‘CFI’) sought information from the Home Office about the licensing of live animal experiments. It was refused under s.44 FOIA, an absolute exemption that gives effect to prohibitions on disclosure in other enactments, in this case s.24 of the Animals (Scientific Procedures) Act 1986 (‘ASPA’), which makes it a criminal offence to disclose (broadly) information obtained in confidence in the course of licensing such experiments. The Commissioner upheld the refusal, as did the FTT.
The UT held that:
- It had jurisdiction to determine the compatibility of s.24 ASPA, because this was necessary to determine the application of s.44 FOIA;
- The dicta in two Supreme Court decisions (British Broadcasting Corporation v Sugar (No 2) [2012] UKSC 4 and Kennedy v Charity Commission [2014] UKSC 20) concerning the reach of Article 10 were obiter, and only binding dicta of superior courts bound the UT;
- CFI had Article 10 rights, applying the criteria identified by the Strasbourg Court in Magyar Helsinki Bizottság v Hungary (2020) 71 EHRR 2;
- The interference with CFI’s Article 10 rights was disproportionate, essentially because the prohibition on disclosure contained no mechanism to balance the competing public interest in access to the information; but
- It was not possible to read down s.24 ASPA, because amending a penal provision to include a public interest defence involved policy choices for Parliament, outside the scope of the interpretative obligation in s.3 Human Rights Act 1998.
The decision of the UT is unlikely to be the last word on the matter.
Peter Lockley appeared for CFI (with Reuben Andrews); Rupert Paines for the Commissioner; and Christopher Knight KC and Josephine Gillingwater for the Home Office.
