Article 10, Access to Information and the Limits of Precedent: Cruelty Free International v Information Commissioner [2026] UKUT 328 (AAC)

28 August 2026

The Upper Tribunal (‘UT’) considered the scope of the right to receive information under Article 10 of the European Convention on Human Rights in the context of a Freedom of Information request made by Cruelty Free International (‘CFI’), concerning licences granted for scientific testing involving animals.

The Home Office (“HO”) refused to disclose the requested information, relying on section 44 of the Freedom of Information Act 2000, which provides an absolute exemption where disclosure is prohibited by another enactment, read together with section 24 of the Animals (Scientific Procedures) Act 1986, which criminalises the disclosure of certain information obtained in the exercise of functions under that Act.

Although the UT ultimately refused CFI’s appeal (by setting aside the First-tier Tribunal’s decision and re-making the decision that the appeal be refused), it held that Article 10 encompasses a limited right of access to information, applying the Grand Chamber’s decision in Magyar Helsinki Bizottság v Hungary (18030/11) (2020) 71 E.H.R.R. 2. In doing so, it declined to follow aspects of its earlier decision in Moss v Information Commissioner [2020] UKUT 242 (AAC), [2020] 7 WLUK 629.

The UT held that Moss was wrong to treat BBC v Sugar [2012] UKSC 4 as establishing binding authority that Article 10(1) does not include a right of access to information. Rather, the relevant observations in Sugar were obiter dicta and had been superseded by the European Court of Human Rights’ subsequent Grand Chamber decision in Magyar (see paragraph 52 of the judgment).

Applying section 2 of the Human Rights Act 1998, the UT emphasised that domestic courts and tribunals must take Strasbourg jurisprudence into account and will ordinarily follow authoritative Grand Chamber decisions. In the absence of binding domestic authority to the contrary, effect should therefore be given to Magyar, which recognises a limited right to receive information under Article 10 (see paragraph 61 of the judgment).

Accordingly, the UT concluded that Moss had been wrongly decided on this point only, and that subsequent decisions applying it were also incorrect (see paragraphs 77-80 of the judgment). The UT further held that the principle in Kay v Lambeth LBC [2006] 2 AC 465, requiring lower courts and tribunals to follow binding domestic authority even where it appears inconsistent with Strasbourg jurisprudence, applies only to binding ratio decidendi and not to obiter dicta.

AI has been used as an assistive tool in the drafting of this article