(General Regulatory Chamber)
Information Rights
Heard on: 26th February 2025 (at 2pm) |
||
B e f o r e :
MEMBER GASSTON
MEMBER WOLF
____________________
CRUELTY FREE INTERNATIONAL |
Appellant |
|
- and - |
||
THE INFORMATION COMMISSIONER |
First Respondent |
|
and |
||
THE HOME OFFICE |
Second Respondent |
____________________
For the Appellant: Peter Lockley
For the Respondent: Not represented at the hearing
For the Second Respondent: Christopher Knight
____________________
Crown Copyright ©
Decision: The appeal is Dismissed
Background to the Appeal
Preliminary Issue – Bias
The Request
"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
Internal Review
"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".
"…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
Grounds of Appeal to the Tribunal
Ground 1
a. 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 AC 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.
The Commissioner's Response
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] AC 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
'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'.
"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".
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
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.
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
"(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".
"(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
Discussion and Conclusions
Documents
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.
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?
"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".
Ground 2: Is s.24(1) of ASPA incompatible with the Appellant's rights to receive information under Article ECHR?
i. Caselaw post-dating Magyar
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
iii. Caselaw relating to the construction of s.24 ASPA
Appropriate case?
Signed
Judge Kiai
Date: 22.05.2025
Note 1 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. [Back]