Cruelty Free International v The Information Commissioner & Anor [2025] UKFTT 676 (GRC)

[2025] UKFTT 00676 (GRC)Case Reference: FT/EA/2024/0288
First-tier Tribunal
(General Regulatory Chamber)
Hearing Heard on: 26 th February 2025 (at 2pm)Date 10 June 2025
Information Rights
Heard by Cloud Video Platform
Amended decision given on: 04 July 2025
Before
JUDGE KIAIMEMBER GASSTONMEMBER WOLF
Between
CRUELTY FREE INTERNATIONALAppellantTHE INFORMATION COMMISSIONERRespondentTHE HOME OFFICERespondentPeter Lockley and Reuben Andrews for AppellantNot represented at the hearing for Respondent for Second Respondent: Christopher KnightDecision: The appeal is DismissedREASONS

Background to the Appeal

[1]This appeal is against a decision of the Information Commissioner (the “ICO”) dated 2 July 2024 (IC-288989-F5C2, the “Decision Notice”. The appeal relates to the application of the Freedom of Information Act 2000 (“FOIA”). It concerns information requested from the Home Office (“HO”), relating to copies of “Assessment of a Request for Prospective Authorisation of a Regulatory in Vivo Test” forms or “Prospective Authorisations” (forms by which the Home Office considers/authorises the carrying out of scientific procedures on animals).[2]The appeal is focused on the information redacted from Section 9 of the “Prospective Authorisations”. The HO withheld the information in reliance on section 44(1)(a) FOIA, by reference to section 24(1) of the Animals (Scientific Procedures) Act 1996 (“ASPA”). This was upheld by the ICO in the Decision Notice. The position of the HO and the ICO was aligned in this appeal.[3]The proceedings were held by video (CVP). The Appellant and Second Respondent were both represented. The First Respondent indicated that they would not be attending the hearing. We were satisfied that it was fair and just to conduct the hearing in this way. Preliminary Issue – Bias[4]The HO initially raised a risk of apparent bias arising from the fact that the Appellant was represented by David Thomas, who previously sat as a judge of the FTT(GRC). The Tribunal directed that the appeal would be heard by panel members who joined the Information Rights Chamber after Mr Thomas had left. Both parties confirmed they were satisfied with this approach and content to proceed. The Request[5]On 17 May 2023, the Appellant wrote to the Home Office and requested the following information:
“Would you please let CFI [Cruelty Free International] have the completed Assessment of a Request for Prospective Authorisation of a Regulatory In Vivo Test (or equivalent document) in respect of each of the project licences granted for testing on animals substances used in cosmetics products since (and including) February 2019? This follows the change to the Home Office policy for cosmetics animal testing in that month and the request relates to licences granted under the changed policy. Dr [name redacted] exhibited one such assessment to her witness statement dated 19 January 2023 in the recent judicial review (but it was almost completely redacted); and documents disclosed in the case referred to other cases where a licence had been granted (see, for example, pages 1183-1186 of the agreed bundle for the hearing on 18 and 19 January 2023). There should be no difficulty in identifying the assessments but do let me know if you think the request needs to be more focused. CFI is of course aware of section 24 ASPA [Animals (Scientific Procedures) Act 1986]. However, as you know this can only apply in respect of information given to (inter alia) the Home Office, not to information the department has itself generated. The information can be provided in anonymised form”
. The Response[6]On 11 July 2023, the Home Office responded. It withheld the assessments on the basis of sections 44(1), 40(2) and 38(1) FOIA. Internal Review[7]The Appellant sought an internal review on 21 August 2023. It did not contest the applications of s.38 and s.40. In relation to the application of s.44 and s.24, it stated: “The forms in question represent the department’s analysis of whether the statutory tests for the grant of project licences have been met. The analysis has not been given to the department by anyone. If and to the extent that the analysis specifically refers to information given to the Home Office in confidence, section 24(1) could apply to it; but not to other information”.[8]The Home Office provided an internal review on 6 December 2023. It largely maintained its position but disclosed (i.e. de-redacted) some information within Section 9 of the Prospective authorisation. It stated:
“…I have determined that the business area is able to provide three prospective authorisation forms which have been revised to release additional text in section 9 of the form. All sections of the form up to and including section 8 are completed by the applicant and this includes information that is provided in confidence. The remaining information redacted in sections 9 and 10, with the exception of personal information, is also information provided in confidence. The additional information that can be disclosed is included in the attached three documents which accompany the review response”
. The Commissioner’s Decision Notice[9]The Appellant complained to the Commissioner on 5 March.[10]On 2 July 2024, the Commissioner issued the DN. It upheld the Home Office’s reliance on section 44(1) FOIA and accepted that the further information within the scope of the request was not held. It did not deal with the Article 10 issue. Grounds of Appeal to the Tribunal[11]Before the Tribunal, the Appellant appealed the decision on the following grounds: Ground 1a. At least part of the withheld information in section 9 could not have been ‘given’ by the licence applicants to the Home Office within section 24(1) ASPA, but rather represented information which the department had itself generated.b. Section 9 is headed ‘Balance of harm and benefit’ and unlike earlier sections of the form, does not simply reflect the information given by the applicant. The Secretary of State for the Home Department (SSHD) told the High Court in a JR in 2023 (R (Cruelty Free International) v SSHD) that with applications to test on animals a substance or product for safety purposes, it considered the societal utility of the substance or product when applying the harm: benefit test I section 5B(3)(d) ASPA. The SSHD must be satisfied that the harm: benefit test is met before she may grant a project licence. If this was the truth, section 9 of the authorisation assessments must contain the department’s analysis of societal utility set against the harms to the animals. None of the information in section 9 disclosed by the department (in relation to 3 of the authorisation assessments disclosed with some further information on internal review) relates to societal utility set against the harms (and no information at all has been disclosed from section 9 in relation to the other 2 authorisation assessments disclosed with the initial response).c. The ICO accepted that the remaining withheld information in section 9 had been given to the department, but he did not explain why he reached this conclusion given the above analysis. Ground 2 a. Section 24(1) ASPA is incompatible with Article 10. It should be read down under section 3 of the Human Rights Act to make it compatible with Article 10, as construed by the Grand Chamber in Magyar Helsinki Bizottsag v Hungary (2020) 71 EHRR 2, or declared to be incompatible with Article 10. This relates to the whole of in the information in the Authorisation Assessment (except for information capable of identifying establishments/individuals). The Appellant acknowledged that the Tribunal was unable to give a remedy in relation to this ground but invited the Tribunal to grant permission to appeal to the Upper Tribunal on this ground. b. “To make good this ground in the domestic judicial system, CRI needs to establish that(i) section 24(1) ASPA as construed by the Court of Appeal in BUAV….is incompatible with Article 10 of the Convention (as construed by Magyar) and(ii) either section 24(1) ASPA should be construed applying section 3 Human Rights Act 1998 (HRA) in a way that is compatible or, if this is not possible, the Court of Appeal should make a declaration of incompatibility under section 4 HRA, following successive grants of permission to appeal from the Tribunal and Upper Tribunal (neither of which may make a declaration of incompatibility); or(iii) if the Upper Tribunal decision in Moss v Information Commissioner …..is correct that only the Supreme Court can under domestic law revisit the question whether Article 10 does extend in the some circumstances to the right to demand information from public bodies, having obiter in Kennedy v The Charity Commission [2014] UKSC…(decided pre-Magyar) that it did not, the Supreme Court should itself use the section 3 HRA interpretative power or make a declaration of incompatibility following a further grant of permission to appeal’ (§13 Grounds). c. The Appellant invites the Tribunal to grant permission to appeal to the UT ‘so that Moss can be revisited’. They rely on R (Tortoise Media) v Conservative Party [2023] EWHC 3088 where Fordham J accepted that it was arguable that Moss was wrongly decided.d. In Moss v Information Commissioner and Cabinet Office [2020] UKUT 242 (AAC) the dicta of the Supreme Court in Kennedy was obiter. It follows that the decisions of the House of Lords in Kay v Lambeth LBV [2006] UKHL 10; [2006] 2 A.C. 465 and R (RJM) v SSWP [2008] UKHL 63; [2009] 1 AC 311 (both relied upon by the Upper Tribunal) that judicial bodies below the House of Lords should normally follow decisions of the House of Lords/Supreme Court even if inconsistent with a later ECtHR decision cannot prevent lower judicial bodies from having regard to Magyar.[12]For completeness, it acknowledged that they did not wish to know the identify the establishments or information capable of identifying the individuals for the project licence numbers. The Appellant confirmed that it did not challenge reliance on the exemptions in 38(1) and 40(2) FOIA, to the extent that they related to these categories of information. The Commissioner’s Response[13]The Commissioner maintained his position in his response, dated 1 October 2024 and again in its written submissions, dated 24 February 2025.[14]In relation to Ground 1: The redacted information is information which the HO “knows or has reasonable grounds for believing to have been given in confidence”. The requirements of s.24(1) ASPA (and so s.44(1)(a) FOIA) are satisfied. He explained that the weighing of interests is carried out in such a way that the information considered is not dissociable from that provided in confidence, which is why there is no separate analysis as to how the reasons were weighted and how the balance was struck in the wider public interest.[15]In relation to the submission that there has been a divergence between the picture that emerges from the account of the content of section 9 and the evidence put before the High Court in a judicial review in 2023, the Commissioner’s submission that this is not a matter relevant to the analysis because s.44 FOIA is an absolute exemption.[16]In relation to Ground 2, the Commissioner maintains “this argument seeks(i) to ignore the statutory limits on the Tribunal’s jurisdiction; and(ii) ultimately overturn the reasoning in two decisions of the Supreme Court/House of Lords, a decision of the Court of Appeal and two decision of the Upper Tribunal (one a three-judge panel)” (§14 Written submissions).[17]In relation to Ground 2, it concluded:a. The Tribunal is bound by Moss v ICO [2020] UKUT 242 (AAC);b. Moss was approved and adopted by the Upper Tribunal in FCDO v ICO and Lownie [2022] 1 WLR 1132, by a three-judge panel. ‘It follows that not only the First-tier Tribunal, but a single judge of the Upper Tribunal itself, would normally be bound by Moss.’c. The Appellant does not explain why Moss/Lownie were wrong.d. The Appellant relies on Fordham J’s comment that he would have granted permission on the salience of Magyar in R (Tortoise Media) v Conservative Party [2023] EWHC 3088 (Admin). However: i. This was an obiter observation on a permission hearing without reasoning and Fordham J stated that he did not “find the point clear-cut”; ii. This is not a JR, it is a FOIA appeal. There is no reason why any Article 10 right of access to information should be located within the FOIA regime. FOIA is neither an exhaustive scheme for the disclosure of information by public authorities, nor a scheme which proscribes the disclosure of information even when exemptions apply. He concludes:
“Authorities have a general power to “provide information about [their] activities to the public”: Kennedy v IC and Charity Commission [2014] UKSC 20; [2015] A.C. 455…..That power is not limited by FOIA: see s.78 FOIA; though, in a case such as this, it will be limited by the 24(1) ASPA prohibition…there is no logic in seeking to use a FOIA appeal as a gateway to a finding about the scope of s.24(1) ASPA. This is not a judicial review of s.24(1) ASPA; it is an appeal under FOIA on the basis that the IC erred in law or in the exercise of his discretion. If the Appellant seeks a freestanding determination of the legality of s.24(1) ASPA, he should seek judicial review”. iii. The fact that the analysis in Kennedy was regarded in Moss/Lownie as obiter is not significant. The analysis both in Kennedy and in Sugar was highly persuasive and followed as such and on its merit. The Upper Tribunal was clearly right to treat the Supreme Court’s reasoning in Kennedy as highly persuasive. iv. “It is, with respect, simply not good enough to say that the Appellant wishes to argue that BUAV is per incuriam in light of Magyar. Even to get to the start blocks for that argument, the Appellant would have to overturn Sugar and Kennedy (pre-Magyar but decided at the highest domestic level), and the post-Magyar decisions in Moss and Lownie, which have determined that Sugar and Kennedy should be followed notwithstanding Magyar. The Appellant advances no reasons why either Moss or Lownie are wrong. Permission to appeal – realistically, to the Supreme Court, from the Upper Tribunal, rather than from this Tribunal – is not available simply because the Appellant would like to advance an argument which is blocked by consistent authority” (§19 Written Submissions); v. The test for an appeal to the Upper Tribunal is that the First Tier Tribunal must have made “an error on a point of law”
. There would be no error by following all the authorities referred to. The Home Office’s Response[18]The HO maintained its position in its response, dated 20 September 2024 and again in its skeleton argument, dated 20 February 2025.[19]With respect to Ground 1, it submits: ‘The redacted Section 9 Information is information provided by the third-party applicant. Section 9 is completed by an official falling within the wider auspices of the Home Office, conducting a cost or harm-benefit analysis. However, that analysis inevitably draws upon, extracts and emphasises information provided by the applicant in the earlier parts of the Prospective Authorisation, and each individual official will adopt their own style which means that Section 9 will include information which cannot be separated from that provided by the applicant to different extends: W/S Reynolds, §§29-31, 41…In doing, so, the Home Office remains within the protection afforded by section 24(1) ASPA’.[20]It further asserts that there is no inconsistency between the redaction of Section 9 information and the Home Office’s position between the redaction of Section 9 Information and the Home Office’s position before Linden J in R (Cruelty Free International) v SSHD [2023] EWHC 1064 (Admin). It relied on §42 of the witness statement submitted by Will Reynolds: “42. For the avoidance of doubt, I do not understand any of the evidence I have set out to be inconsistent in any way with that evidence provided to the High Court in 2023 in judicial review proceedings brought by the Appellant. Section 9 of the form does contain the Inspector’s assessment, but it is too simplistic to assume – as Ground 1 of the Appellant’s appeal appears to – that because the Inspector has made a professional assessment then that information must be separately disclosable and therefore there is no information in section 9 to which section 24 of ASPA could apply. In considering the societal utility (i.e. the benefits), it is clear from the layout of the form that the Inspector will be guided to refer to that information provided in Section 8 – as provided by the applicant”.[21]In relation to Ground 2 it reiterates that the status of Magyar in relation to FOIA appeals has been authoritatively settled, referring to the cases of Moss and FCDO v Information Commissioner and Williams ad Wickham-Jomes and Lownie.[22]It asserts this is an attack on s.24 ASPA, not s.44(1) FOIA. ‘An appeal in relation to reliance on section 44(1) FOIA is limited in scope: it is limited by the Commissioner’s jurisdiction and role, which does not extend to reviewing the compatibility of primary legislation with Convention rights, and still less to any power to ‘read down’ such legislation…such an exercise is inconsistent with the limited functions of the Commissioner, and thence this Tribunal, in connection with a regime such as the ASPA in a section 44 case’. The Appellant’s Reply[23]The Appellant responded to the Respondent’s submissions in the following way:[24]In relation to Ground 1, it made the following submissions:a. If the HO were carrying out functions lawfully under ASPA and in accordance with the description of the process she gave to the High Court in 2023, one would expect at least some of the section 9 withheld information to include information not given by the licence applicants. The balance required by s.5B(3)(d) ASPA is to be undertaken by the Secretary of State as it is a public law task – not by a licence applicant. One would expect the assessment to be set out in section 9 of the forms;b. The fact that the analysis draws upon, extracts and emphasises information provided by the licence application does not mean all the information contained in the analysis merely repeats information given by the licence applicant or that the assessment made cannot be articulated in a matter that reveals how competing reasons were weighted and how the balance was struck in the wider public interest. This stance is either inconsistent with what the Secretary of State told the Court in 2023 or it is relying on the fact that some confidential information was provided to ‘allow a cloak to be raised around the basis for the harm: benefit assessment’.c. Where there is a divergence between how the HO should carry out her functions under ASPA (as she acknowledged to the High Court) and what she does in practice, this is relevant to the public interest test required by Magyar and therefore to Ground 2.[25]In relation to Ground 2:a. Public bodies, both the HO and the Tribunal, have the power and the duty to read down primary legislation to ensure compatibility with the Convention, where it is possible to do so.b. It is possible to read down section 24 ASPA to make it compatible with Article 10, as construed by Magyar. It maintains (set out only in summary here) that the words “information…given in confidence” in section 24(1) should be read as importing the law of confidence and therefore a public interest test.c. In BUAV, a case that arose pre-Magyar, the Court of Appeal rejected that construction. However, that decision was made before Magyar and without any material reference to Article 10. If the Appellant’s approach to section 24 of Magyar is correct, BUAV could not be decided the same way today.d. The Appellant should not have proceeded by way of JR as this concerns the ICO’s assessment of whether the HO has properly applied the exemption in section 44(1)(a) read with section 24 of APSA, both on its face and considering how it should have been read compatibly with Article 10. No such point was taken in Moss and HM/Kelly.e. The case of Ofcom v IC v Morrissey (relied upon by the HO), was about whether the ICO and the Tribunal had jurisdiction to consider traditional public law rationality grounds ‘whether Ofcom’s discretionary decision not to invoke the exception to the prima facie prohibition on disclosure in section 393(1) Communications Act 2003 was lawful (the Upper Tribunal decided that they did not and that the issue was for the High Court on judicial review). There is no exception to the prohibition on disclosure in section 24 ASPA: it is an absolute prohibition and if its conditions are met, there is no question of the Second Respondent exercising any discretion to avoid its application. There is no question, therefore, of the FOIA statutory authorities trespassing on territory that is the sole preserve of the Administrative Court: once the conditions in section 24 are met, disclosure cannot be given under domestic law’.f. The fact that FOIA is not a complete code for access to information is irrelevant in the present case. Section 24(1) ASPA is a criminal provision prohibiting the HO from disclosing information falling within scope, if the 3 conditions are met. It is not open to the HO to disclose information outside of FOIA.g. The cases of Moss and FCDO v Information Commissioner and Lownie are wrong. The precedent rule in Convention as set out by the House of Lords in Kay only applies where there is a binding decision of the House of Lords. The Supreme Court’s comments in Kennedy about the reach of Article 10 were obiter. Nevertheless, Judge Wright (in Moss) regarded himself as bound by Kennedy on the ground that reasoned, obiter comments by the Supreme Court were highly persuasive., ‘in doing disturbed the careful constitutional balance struck by the House of Lords between the domestic rules of precedent, on the one hand, and courts’ and tribunals’ duty under section 2(1) HRA to take into account ECtHR decisions on the other hand. The rules of precedent apply only to the ratio of the decisions of precedent-setting courts and tribunals’. Legal Framework[26]Section 44 FOIA is titled “Prohibitions on Disclosure”. It states (so far as material): “(1) Information is exempt information if its disclosure (otherwise than under this Act) by the public authority holding it – (a) Is prohibited by or under any enactment”. (a) Is prohibited by or under any enactment”.[27]Section 44 is an absolute exemption – where it is engaged, it is not subject to a public interest test (section 2(3)(h) FOIA).[28]Section 24(1) of ASPA states:
“(1) A person is guilty of an offence if otherwise than for the purpose of discharging his functions under this Act he discloses any information which has been obtained by him in the exercise of those functions and which he knows or has reasonable grounds for believing to have been given in confidence”
. The Tribunal's Role[29]By section 58 FOIA the Tribunal's role is to consider whether the DN is in accordance with the law or where the ICO’s decision involved exercising discretion, whether it should have exercised it differently. It is a full merits jurisdiction. The Tribunal may receive evidence that was not before the ICO and may make different findings of fact from the ICO. If the Tribunal determines the DN was not in accordance with the law or that a discretion should have been exercised differently it can allow the appeal and/or substitute a different Notice that could have been served by the ICO. Unless these apply the Tribunal shall dismiss the Appeal. Discussion and Conclusions Documents[30]For the purposes of determining this appeal, we have considered:a. Those documents contained within the open bundle consisting of 792 (electronic) pages;b. The closed bundle of 28 (electronic) pages, which contained the information requested;c. A main authorities bundle;d. A supplementary authorities bundle;e. The ICO’s Response, dated 1 October 2024;f. The HO’s Response, dated 20 September 2024;g. The Appellant’s reply, dated 4 November 2024;h. The Appellant’s skeleton argument, dated 20 February 2025;i. The ICO’s Written Submissions, dated 24 February 2025;j. The HO’s skeleton argument, dated 20 February 2025.[31]At the hearing before us, the Appellant and HO were represented by Counsel. The ICO relied on their written submissions. Mr Reynolds and Ms Grange both attended the hearing, however there were no questions for them. Following a public hearing, the Tribunal went into a closed hearing and heard submissions. A gist was provided to the Appellant at the hearing itself.[32]We wish to express our thanks at this point for the eloquent and detailed submissions of both Mr Locke and Mr Knight – the Tribunal was greatly assisted by these. Issues[33]In accordance with section 58 of FOIA, our role is to consider whether the Commissioner’s Decision Notice was in accordance with the law. As set out in section 58(2), we may review any finding of fact on which the notice in question was based. This means that we can review all of the evidence provided to us and make our own decision. We deal in turn with the issues.[34]The Tribunal must determine the following issues:a. Does the Section 9 information attract the protection of section 24 ASPA and therefore section 44(1) FOIA, because it is information provided in confidence by a third party?b. Is s.24(1) of ASPA incompatible with the Appellant’s rights to receive information under Article ECHR? Ground 1: Does the Section 9 information not attract the protection of section 24 ASPA (and therefore section 44(1) FOIA), because it is not information provided in confidence by a third party, but rather information generated by the Home Office?[35]The Appellant’s essential submission is that the redacted information in Section 9 of the Authorisation Assessment is not information that the HO “knows or has reasonable grounds for believing to have been given in confidence”. It is submitted that on the face of it, the exercise required by s.5(3)(b) cannot lawfully be simply be a recitation of the harms and benefits which had been identified by the applicant, the inspector has to apply his/her own mind to the exercise and it would follow that lawful exercise would require some Home Office-generated analysis ie analysis that is not supplied by the applicant and is therefore not caught by s.24 ASPA, because the terms of s.24 ASPA do limit the prohibition to information which has been obtained by a person exercising functions under the Act. The only issue under this ground is whether all of the information redacted has been obtained by the HO because its been provided by the Applicant. We were encouraged by the Appellant to take a narrow view of what falls within s.24 consistent with the statutory language. We were encouraged to focus very closely on the degree of manipulation. If for example, the words were ‘extracted’, this may well be caught by s.24, but it was not obvious that words which had ‘drawn upon’ the underlying information from the application would be caught by s.24.[36]This is a question of fact. The Tribunal considered the redacted information at length both during the “closed session” at the hearing and again following the hearing. We have concluded that the redacted information is in effect reproducing the content of information provided in confidence.[37]We agree with the ICO’s submission that the weighing of interests is carried out in such a way that the information considered is not dissociable from that provided in confidence, which is why there is no separate analysis as to how the reasons were weighted and how the balance was struck in the wider public interest. We conclude that information is directly reflective of the appellant’s application. For completeness, we add that we do not find that the wording needs to be copied and pasted – there is a spectrum and s.24 applies beyond information which is simply copied and pasted. Instead, we need to focus on the information itself and form a view in the context of the statutory purpose and the totality of the form. The context and the form were explained by Mr Reynolds.[38]We accept the HO’s submission that it is inevitable that in order to complete section 9 it is necessary to draw heavily on the information provided by the Applicant, particularly between section 7-8 of the form. How that is used will be a matter of style in terms of the particular inspector. The assessment of the inspector will include the choice of which aspects of the form to extract for what they find to be particularly relevant. The fact that there is substantial content which originated from the Appellant is no indicator that the Inspector isn’t doing their public law job – that is part of the assessment to be carried out.[39]The Appellant questioned whether there was an inconsistency between the redaction of Section 9 information and the Home Office’s position before Linden J in R (Cruelty Free International) v SSHD [2023] EWHC 1064 (Admin). In the latter case, the HO stated that with applications to test on animals a substance or product for safety purposes, it considered the societal utility (‘benefits’) of the substance or product when applying the harm: benefit test. The Appellant asserted therefore that, section 9 of the authorisation assessments must contain the department’s analysis of societal utility (benefits) set against the harms to the animals. None of the information in section 9 disclosed by the department (in relation to 3 of the authorisation assessments disclosed with some further information on internal review) related to societal utility set against the harms (and no information at all has been disclosed from section 9 in relation to the other 2 authorisation assessments disclosed with the initial response).[40]Having considered the witness statement of Will Reynolds (the Head of the Animals in Science Policy and Coordination Function), we find that there was no inconsistency between the redactions in section 9 and the Home Office position in the High Court. We agree with and attach significant weight to §42 of Mr Reynolds’ witness statement: “42. For the avoidance of doubt, I do not understand any of the evidence I have set out to be inconsistent in any way with that evidence provided to the High Court in 2023 in judicial review proceedings brought by the Appellant. Section 9 of the form does contain the Inspector’s assessment, but it is too simplistic to assume – as Ground 1 of the Appellant’s appeal appears to – that because the Inspector has made a professional assessment then that information must be separately disclosable and therefore there is no information in section 9 to which section 24 of ASPA could apply. In considering the societal utility (i.e. the benefits), it is clear from the layout of the form that the Inspector will be guided to refer to that information provided in Section 8 – as provided by the applicant”.[41]For these reasons, we find the Commissioner was right in his conclusions and Ground 1 is dismissed. Ground 2: Is s.24(1) of ASPA incompatible with the Appellant’s rights to receive information under Article ECHR?[42]The Appellant concedes that the FTT is bound to dismiss Ground 2, but invites the Tribunal to grant permission to appeal to the UT. It accepts that domestic caselaw currently goes against the Appellant but argues that in light of Strasbourg caselaw (Magyar) which unambiguously concludes that Article 10 includes a right to receive information from a public authority in limited circumstances, permission should be given. It further submits that the case of Magyar was intended to be a watershed case.[43]If we have power to grant permission to appeal at this stage (which we do not need to decide at this point), permission is refused for the following reasons This decision was made by the Judge alone, as a matter of law, albeit the decision refers to the decision of the Tribunal for stylistic purposes. We have not considered whether the application is premature, as we have decided to refuse permission on this ground. : i. Caselaw post-dating Magyar[44]The case of Magyar in relation to FOIA appeals has been settled in appellate case law binding on this Tribunal:a. In Moss, the Upper Tribunal rejected the submission that domestic law recognises such a right created by Article 10. It further rejected that it could be raised to affect the outcome of an appeal under FOIA. Importantly it, explicitly considered Magyar.b. That ruling was accepted and adopted by a three-judge Presidential panel in FCDO v Information Commissioner and Williams and Wickham Jones and Lownie at §§76-82 and endorsed at §37 in Re Lavery [2022] NIQB. Permission to appeal was refused by both the UT and the Court of Appeal. ii. Caselaw pre-dating Magyar[45]Further, the Supreme Court has held in two Supreme Court cases that there is no right of access to State held information that arises from Article 10 (BBC v Sugar (No.2) [2012] 1 EWLR 439and Kennedy v ICO and Charity Commission [2015] A.C. 455 – albeit it was obiter in the latter). We accept that these both pre-date the decision in Magyar.[46]The Appellant fairly accepts at §34 of their skeleton argument that the Tribunal ‘is required by Moss to treat Sugar/Kennedy as binding, and to apply them in preference to Magyar, notwithstanding the clear inconsistency between the two”. iii. Caselaw relating to the construction of s.24 ASPA[47]The Court of Appeal has determined in SSHD v BUAV [2009] 1 WLR 636 that the correct construction of s.24 ASPA against the Appellant’s proposed construction today. This case did not raise the issue of non-compatibility with the HRA, nonetheless, the Appellant will also need to overturn this decision.[48]The Appellant argues however, that the FTT should grant permission to appeal to the Upper Tribunal, so that the point can be reconsidered at the Appellate level, in light of Strasbourg caselaw that unambiguously states that Article 10 includes a right to receive information from a public authority in limited circumstances (Magyar). It submits that the Supreme Court would reach a different answer to the answer it gave in Kennedy on that issue if it were addressing the issue today and argues that Moss was wrong to extend the Kay doctrine to persuasive obiter dicta in the face of Strasbourg authority – it is limited solely to binding precedent. Moreover the Court of Appeal if not the UT with a 3 judge panel, could overturn a decision in Moss. But that would fall away if the UT were to certify a leapfrog appeal on the basis that this is an appropriate case for the Supreme Court to revisit Kennedy in the case of Magya. It would no longer matter whether what was said in Kennedy was part of the ratio. The Appellant argues that it is precisely because of the domestic caselaw that the case should be run up the judicial hierarchy, otherwise domestic jurisprudence could never catch up with Strasbourg caselaw.[49]We have attached significant weight to the fact that Magyar was explicitly considered in the domestic caselaw and for this reason we are not persuaded to grant permission. We note that permission to appeal was refused by both the UT and the Court of Appeal in FCDO v Information Commissioner and Williams and Wickham Jones and Lownie.[50]As a matter of law the Supreme Court is not bound to change course in light of the Strasbourg caselaw of Magyar. It is required to take it into account but not bound to follow it. We cannot assume the outcome.[51]We have considered the Appellant’s submission that every public authority has to read legislation so as to give effect to convention rights so far as possible. However, we find that in light of the fact that Magyar has already been considered by the Courts, this duty has been discharged. We note that this Tribunal has no power to direct a leapfrog appeal. Appropriate case?[52]Both parties agreed that the UT expressly contemplated the Supreme Court revisiting Kennedy, provided there was an appropriate case in which Article 10 would make a difference. The question is whether this case is or is arguably such a case.[53]We conclude that this is not such a case. We agree with the submission, that the current challenge is – in effect – to s.24 ASPA and therefore the correct challenge would be through Judicial Review proceedings.[54]It is not suggested that the HO or ICO misapplied FOIA. The submission is that 24(1) ASPA should be read down /disapplied so that s.44 FOIA would not bar disclosure. The Appellant argues that s.44 FOIA imports the s.24 ASPA prohibition. Therefore s.44 FOIA is the operative block on Article 10 rights. It is common experience for the FTT to interpret non-FOIA legislation, where the provision cross-refers to it, there is no reason why that should be different simply because one needs to read that through the lens of convention rights.[55]We agree with the HO and ICO that the Appellant’s complaint is in reality with s.24 ASPA, applied via s.44 FOIA. It is therefore s.24 ASPA which it is said is incompatible with (and a block to) Article 10, indeed the remedy the Appellant seeks is the reading down of s.24 ASPA. The appeal before this Tribunal, is a statutory appeal under FOIA. The Tribunal’s jurisdiction therefore arises from and is limited by the terms of FOIA (the statutory function in question is whether the commissioner considers the specific request has been dealt with in accordance with the requirements of part 1 of FOIA) – not ASPA.[56]The Appellant submits that what prevents disclosure under s.44 FOIA in this case is the prohibition under s.24 ASPA. They argue that s.24 ASPA would also prevent disclosure under any route that could be conceived of (eg common law powers). It is submitted that it is artificial to find that s.44 FOIA is not the block. It is, because it is validating s.24 ASPA as a reason to refuse a FOIA request (as well as a non-FOIA request). There are no other routes open. We agree that this is correct, but find that this gives further weight to the fact that a JR challenge to s. 24 ASPA is in fact the correct route – as it is s.24 ASPA and the absolute nature of the prohibition that admits no balancing of the Appellant’s rights which is blocking the disclosure of evidence, whichever route is pursued.[57]In light of the caselaw by which we are bound, we do not accept that permission to appeal should be granted by this Tribunal. We do not find there would be an error of law in our decision.[58]We accept that permission can be granted even where the prospects are limited, under the second limb for permission to appeal (equivalent to ‘some other compelling reason’ in the CPR). We were not referred to caselaw where the FTT had previously granted permission to appeal to the UT in circumstances such as this. It terms of whether there are (in effect) compelling circumstances, we leave it to the Upper Tribunal to determine for itself whether permission should be granted. At this stage we are not persuaded that this threshold is met. It is, of course, open to the Appellant to make a further application for permission to appeal to the FTT, once this decision is promulgated. Signed Date: Judge Kiai 22.05.2025 *Amended under Rule 40 of the Tribunal Procedure (First-tier Tribunal)(General Regulatory Chamber) Rules 2009 on 1st July 2025

Cited in 1 later judgment