Redacted rights: When does Article 10 ECHR confer a right to information?

Background

Cruelty Free International (“CFI”), a campaigning organisation opposed to the testing of cosmetic products on live animals, sought information about Home Office licences authorising scientific testing.

The Home Office declined to disclose all the information sought. It relied on section 44(1)(a) of the Freedom of Information Act 2000 (“FOIA”), which exempts information whose disclosure “is prohibited by or under any enactment”, together with section 24 of the Animals (Scientific Procedures) Act 1986 (“ASPA”). Section 24 ASPA, in broad terms, makes it a criminal offence to disclose information obtained in the course of licensing such experiments where that information was given in confidence.

The Decision Below

The Information Commissioner decided that the Home Office was entitled to rely on the exemption. The First-tier Tribunal (“FtT”) upheld that decision, finding that the withheld material was information given in confidence, disclosure of which would amount to a criminal offence under section 24 ASPA. The Tribunal also considered itself bound by authority to reject CFI’s argument that the absolute exemption created by section 44 FOIA, operating alongside section 24 ASPA, was incompatible with its Article 10 rights.

The Upper Tribunal Decision

The Upper Tribunal (“UT”) set aside the FtT’s decision and re-made it - again refusing the appeal, but for different reasons. It held that:

1. Jurisdiction. Both the UT and the FtT had jurisdiction to determine the issues raised, since deciding whether section 44 FOIA applied necessarily required the UT to determine the compatibility and proper construction of section 24 ASPA. The FtT had not, in substance, concluded it lacked jurisdiction, so had not materially erred in law on this point.

2. Precedent and Article 10. Tribunals were not bound by precedent to refuse to recognise the limited right to receive information inherent in Article 10. The FtT’s decision involved an error of law in holding otherwise. Applying the comparatively narrow “gateway” criteria set out by the Grand Chamber in Magyar Helsinki Bizottság v Hungary (2020) 71 EHRR 2 (“Magyar”) ([21] and [37]), CFI did have Article 10 rights in the circumstances of this case. The “gateway” criteria were listed in Maygar thus: (i) the purpose of the request must be to enable freedom of expression; (ii) the nature of the information sought must provide transparency on the manner of conduct of public affairs and on matters of interest for society as a whole; (iii) the requester must be a journalist or a person such as a non-governmental organisation acting as a “public watchdog”; and (iv) the information must be “ready and available” as opposed to requiring data collection by the holder. Both Respondents did not dispute that the four Magyar criteria were met in the circumstances of this case, but argued that there had been no interference with Article 10 rights ([88]-[93]).

The effect of section 44 FOIA with section 24 ASPA was to deny CFI access to the information it sought, and in the absence of a practical alternative regime under which it might be accessed, the UT found that there was an interference with CFI’s Convention rights ([94]). Moreover, in CFI’s case, the interference with those rights was disproportionate: not least because the statutory prohibition on disclosure contained no mechanism for weighing the countervailing public interest in access to the information, meaning that “the balancing exercise inherent in article 10(2) is excluded from the outset” ([102]).

3. No real remedy, all the same. On re-making the decision, it was not possible to read the offending legislation compatibly with Convention rights and the UT had no jurisdictional power to grant a declaration of incompatibility under section 4 of the Human Rights Act 1998 (“HRA”). In essence, reading a public interest defence into a penal provision would involve policy choices reserved to Parliament and so fell outside the scope of the interpretative obligation contained in section 3 of the HRA ([47] and [107]).

Discussion

While this is a significant case concerning the domestic application of Article 10, at the heart of the judgment also is the UT’s application of precedent. The UT agreed with CFI that Magyar had recognised an Article 10 right to receive information in circumstances such as these, rejecting the Respondents’ argument that domestic authority had already established that no such right exists. In this regard, the UT departed from the decision of the UT in Moss v Information Commissioner [2020] UKUT 242 (AAC) (“Moss”).

The UT held that the reference to “binding precedent” in Kay v Lambeth LBC [2006] 2 AC 465 (the House of Lords’ authority on the interaction between precedent and Convention rights arguments) applies only to the ratio decidendi of higher courts and tribunals, and not to obiter dicta ([40] - [43]).

On that footing, the Tribunal concluded that the extant case law on the existence, or interference with, Article 10 rights in this context was not on point. In short, the relevant 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 therefore not binding. Moss, which had relied on comments made in these two Supreme Court judgments, was therefore not followed.

As the Tribunal put it at [64]: “in deciding whether dicta should be followed even though not binding, it is relevant to consider whether subsequent developments may have affected the force of the reasons not to recognise article 10 rights to receive information as part of domestic law, and other obligations incumbent on the UT”. Magyar, a later and thorough word from Strasbourg, was to be preferred.

The long-running dispute over whether, and how far, Article 10 bears on requests made under information access legislation is unlikely to end here.

Georgina Pein is a barrister at 1 Crown Office Row. This article first appeared on the set’s UK Human Rights Blog.