In a recent decision, the Upper Tribunal (‘the UT’) has found that the operation of section 44 of the Freedom of Information Act 2000 (‘FOIA’) breaches the right to access information under Article 10 of the European Convention on Human Rights (‘ECHR’). The decision will obviously be of interest to lawyers working in the field of information rights. In this post, we also argue that the decision will be of interest to public lawyers more generally. This post first explains the factual and legal background to the case, Cruelty Free International v Information Commissioner and Home Office. Second, the post traces the reasoning and findings of the UT’s decision. In doing so, the post identifies five points of significance beyond the instant case. These five points of general interest, we argue, were also legal hurdles that Cruelty Free International needed to overcome, and largely did overcome, to succeed in its challenge. 

1. Legal and factual background

Cruelty Free International (‘CFI’) is an organisation which campaigns against experiments on live animals which cause pain, distress, suffering, or lasting harm: [1]. In 2023, CFI requested information from the Home Office about the internal Home Office processes for granting licenses for the testing of cosmetic products on animals: [2]. In particular, CFI sought to understand how the ‘harm-benefit test in s 5B(3)(d) of the Animals Scientific Procedures Act 1986 (‘APSA’) had been applied in the process of granting such licenses: [2]. The Home Office did not produce some information sought and redacted some other information.  

CFI then appealed to the Information Commissioner to decide whether the Home Office had complied with the FOIA. The Home Office consequently provided further information, but significant material was still redacted. The legal basis on which the Home Office acted in withholding this information had two components. First, s 44(1)(a) FOIA which exempts disclosure if so required by another enactment. Second, and the relevant ‘other enactment’ for purposes of s 44, is s 24 of APSA. The latter provision makes it a criminal offence to disclose information given in confidence for the exercise of functions under the Act. 

The Information Commissioner decided that the Home Office was entitled to rely on s 44 exemption to withhold information and, initially, the First-Tier Tribunal (‘FtT’) upheld the Information Commissioner’s decision. The Information Commissioner held that the redacted information was covered by s 24 of APSA as it was given to the Home Office in confidence. and so was subject to the absolute exemption under s 44 of FOIA. 

So far, so straightforward. But the waters are muddied considerably when the Strasbourg Court’s Grand Chamber decision in Magyar Helsinki Bizottság v Hungary (App no 18030/11) is considered. Magyar was a watershed case in which the Court found that there may be a positive right to receive information under Article 10 of the ECHR. The legal test resulting from Magyar has two parts. First, only persons meeting four ‘gatekeeping’ criteria will be recognised. The information must (i) be necessary to give effect to the applicant’s rights of freedom of expression, (ii) the information sought must meet a public interest test, (iii) the individual seeking the information must be acting as a ‘watchdog’ and (iv) the information must be readily available. (Maygar [149]-[157]) Second, as reflects the structure of Article 10(2), even where a recognised right to receive information exists, any interference with such a right may be justified according to the application of a Convention-compliant proportionality standard. Before the UT, CFI argued the following: post-Magyar, Article 10 ECHR included a distinct and enforceable right to receive information. That right should be recognised in UK law. Section 44 FOIA prevented CFI from enjoying that right. Therefore, the offending provisions in the FOIA should give way to, or be read as being subject to, Convention rights. 

To mount a successful case, CFI had to overcome five distinct hurdles. Each of these, we suggest, illustrate interesting points of public law. The five hurdles are, in turn: (1) the fact that existing UT precedent seemed to stand in the way (the “horizontal precedent issue”); (2) the fact that existing Supreme Court dicta seemed to stand in the way (the “vertical precedent issue”); (3) the limited duty on domestic courts to consider European case law (the “section 2 HRA issue”); (4) the need for any interference to be disproportionate (the “proportionality issue”); (5) the limited remedies available to the UT (the “HRA remedies issue”). We will discuss each in turn. 

2.1 The horizontal precedent issue

The first hurdle for CFI was that several UT decisions had, seemingly decisively, held that the Magyar ruling should not be applied at the domestic level, and that as a result there did not exist any right to receive information in domestic law. The first and most important of these decisions is Moss v Information Commissioner (a decision which had since been followed by later constitutions of the UT such as Foreign, Commonwealth and Development Office v Information Commissioner and Greenwood v Information Commissioner). Despite recognising that a ‘relatively lengthy list of cases’ involved express rejection of the Magyar principle ([76]), the UT in this case came to “a different view” ([75]) and expressly declined to follow them: [80]. 

How could the UT decline to apply such clear precedents? Unlike some superior courts, the UT is not bound to follow its own decisions, although due to respect for judicial comity it will generally follow its own earlier decisions unless it is convinced that they are ‘wrong’: see HMRC v Sintra Global at [114]. In this case, this test was met. For reasons set out below, the UT concluded that the line of authority beginning with Moss had misinterpreted Supreme Court decisions. This line of authority had neglected to consider whether (non-binding) dicta of the UK Supreme Court had been superseded by European case law. For this reason, and because the decisions tended to involve a ‘lack of independent analysis’ ([76]), it was right that the UT departed from them. 

The horizontal precedent issue did not, therefore, stand in the way of recognising a right to receive information at domestic law. The judgment of the UT illustrates how the operation of precedent in lower courts works in practice.

2.2 The vertical precedent issue

The next hurdle for CFI was that in two Supreme Court decisions (Sugar v BBC and Kennedy v Charity Commission), both of which pre-dated the Magyar judgment, some judges suggested that there existed no right to receive information under Article 10 ECHR. If this formed part of the ratio decidendi of either of those cases, this would be fatal to CFI’s claim: the UT cannot refuse to follow the ratio of a decision of a higher court on the basis that it is incompatible with Convention rights (see Kay v Lambeth LBC at [43]).

The UT found that the passages in Sugar and Kennedy which expressly rejected the argument that there was no right to receive information under Article 10 were obiter dicta and did not bind the UT. The views expressed in Sugarwere offered by just two of the five sitting judges and did not therefore amount to a majority view ([54]-[58]). Further, the views expressed about the Convention in Kennedy were not necessary to resolve the issue in that case, which was determined on an alternative basis ([59]). 

The vertical precedent issue did not, therefore, stand in the way of recognising a right to receive information at domestic law, either. The UT judgment rightly argued that the distinction between ratio and dicta is material to the application of precedent. If all higher Court dicta were binding on lower courts and tribunals, this would undermine the legal certainty that the doctrine of precedent exists to protect in the first place. [42] Cruelty Free International is therefore generally important for those scholars interested in applications of precedent in public law. 

2.3 The section 2 HRA issue

Having established that the UT could choose to follow Magyar (in that precedent did not stand in the way of it doing so), the next question was whether it should do so. It is well-known that the duty on domestic courts in this respect is to “take account of” the relevant Strasbourg case law, rather than a duty to apply it directly: see s 2 Human Rights Act 1998. In a previous piece, one of the authors has suggested that courts and tribunals are now increasingly willing to depart from Strasbourg authorities (including Grand Chamber authorities) for a number of different reasons (see Graham, “The Modern Mirror Principle” [2021] PL 523).

The UT acknowledged that “in principle, there may be good reason for not following Strasbourg authority” ([69]). But on the facts of this case, the UT decided to follow and apply Magyar for four reasons: (i) the judgment was handed down by the Grand Chamber; (ii) the decision was “carefully considered” and reached “a clear conclusion”; (iii) the Strasbourg Court “intended [its judgment] to be generally applied by national courts”; (iv) its reasoning is sound insofar as the “relevant authorities and principles” were fully considered: see [69].

The section 2 HRA issue, then, also did not stand in the way of recognising a right to information at domestic law. The UT judgment provides a lesson for public lawyers in the operation of the section 2 obligation in practice. It provides a helpful framework both for the operation of the mirror principle, and explains the rationale for departures from it. 

2.4 The proportionality issue

The UT applied Magyar to the facts. The UT accepted that Art 10 was engaged: the information sought met the relevant Magyar gateways ([88]-[92]). The core issue was therefore proportionality. The UT recognised that the prohibition on releasing the information sought by CFI pursued a legitimate aim (preserving the confidentiality of commercially sensitive information: [96]). But it found that the prohibition was neither the least intrusive measure available to achieve that aim, nor did it strike the required balance of interests. In particular, the blanket nature of the prohibition meant that the press and organisations such as the claimant could not perform their public watchdog function; a bright-line rule, whilst in theory permissible under the Convention, failed to properly respect Convention rights: [98], [99], [102].

The proportionality issue was therefore resolved in favour of CFI. The UT judgment provides a lesson for public lawyers as to how a proportionality analysis may be conducted in the context of qualified ECHR rights. While the blanket ban in Animal Defenders International was considered [86], and the UT in effect held there are no bright line rules against bright line, Cruelty Free International demonstrates how and why it is difficult to argue that blanket rules, in this case an absolute exemption, may be proportionate.  

2.5 The remedies issue 

CFI reached the final hurdle. They had established that the refusal to release the information they sought disproportionately breached their Convention rights. What, if anything, could the UT do about it? The UT could not make a declaration of incompatibility under s 4 of the HRA. Section 4(5) of the HRA provides7 an exhaustive list of senior courts permitted to make a declaration of incompatibility, and the UT is not included. The only remedy available was, therefore, to interpret the terms of the offending statute (here, confusingly, it is not always clear whether the ‘target’ legislation is the FOIA or the APSA) compatibly with Convention rights (s 3 HRA). 

The Information Officer and Home Office had argued it was “constitutionally inappropriate” for the UT to engage with the question of whether CFI’s Article 10 rights had been violated: [71].  The UT correctly concluded that it was “aware of the constitutional boundaries for courts and tribunals in s 3 and 4 of the HRA… it does not follow that the UT should decline to consider the convention rights”: [71]. On the facts, however, the UT found that it was not “possible” to adopt a Convention-compliant construction. Whilst recognising the far-reaching nature of the s 3 duty ([105]), a Convention-compliant interpretation was not appropriate for at least three reasons ([106]): (i) the required changes would amount to a “radical alteration” of the text; (ii) the issue involves policy considerations; (iii) there is no single obvious solution which would remedy the incompatibility. 

CFI’s case therefore fell at the final hurdle. It was left without a remedy. The UT judgment nevertheless provides an important illustration of the constraints courts may place on themselves in the application of Article 3. 

Conclusion

The UT made the right decision. As we have argued elsewhere, it has been clear for some time that the status of the right to information in domestic law needed to change. Indeed, in a recent friendly settlement decision before the Strasbourg Court, the Government conceded this possibility. Further, the impact of Magyar on domestic law is important, as we can see from the facts of this case, but not radical. Magyar’s gatekeeping criteria, and in-built proportionality scheme, limit the impact of the judgment for public authorities whilst rightfully benefitting organisations performing a watchdog function, seeking readily available information, in the public interest, where such information is necessary to give effect to Article 10 rights.

The Implications of Cruelty Free International v the Information Commissioner go well beyond the instant case. In Tortoise Media v Conservative Party, which was an application for judicial review,  one of the claimant’s arguments was that it satisfied the Magyar gatekeeping criteria, and so had a right to access information about the Conservative Party’s internal leadership selection procedures, including who was voting for the Prime Minister and who was checking who was voting (see Tortoise Media [19]). The Magyar point was not argued when Tortoise Media was heard in the Court of Appeal, but in the High Court, Fordham J came to a similar conclusion as the UT did in this case.  He held that had the case before him not failed on another point (the Conservative Party were not exercising a public function amenable to judicial review) he would have allowed the argument on the Magyar point to proceed to a substantive hearing (see Tortoise Media at [49]). The combined effect of Cruelty International and Tortoise Media is that recognition of the existence of a right to access information would have broad implications for authorities held to be exercising public functions for purposes of s 6 of the HRA. 

Lord Mance began his decision in Kennedy by saying that ‘information is the key to sound decision-making, to accountability and development; it underpins democracy and assists in combatting poverty, oppression, corruption, prejudice and inefficiency: [1]. We agree. Democracy is inseparable from requirements of transparency, and the political constitution of the United Kingdom cannot be sustained without a right to access information. It is not only a victory for Cruelty Free International that (most of) the five legal hurdles were overcome in this case, but also a victory for public law and democracy as well.  

Lewis Graham is Lecturer in Human Rights Law at the University of Manchester.

Leah Trueblood is Senior Lecturer in Law at the University of Surrey.

(Suggested citation: L. Graham and L. Trueblood, ‘A right to information in domestic law: five points of interest for public lawyers’, U.K. Const. L. Blog (7th September 2026) (available at https://ukconstitutionallaw.org/))