British Union for the Abolition of Vivisection (Buav) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 23 January 2014 |
| Neutral Citation | [2014] EWHC 43 (Admin) |
| Docket Number | Case No: CO/3049/2013 |
| Date | 23 January 2014 |
| Court | Queen's Bench Division (Administrative Court) |
[2014] EWHC 43 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Ouseley
Case No: CO/3049/2013
Mr Adam Sandell (instructed by Mr David Thomas Solicitor to BUAV) for the Claimant
Mr Paul Greatorex (instructed by The Treasury Solicitor) for the Defendant
The British Union for the Abolition of Vivisection, BUAV, works for an end to experiments involving the use of animals, and meanwhile for the enforcement of the existing legal protection for animals used in experiments. It is contemplating judicial review proceedings against the Secretary of State for the Home Department who is responsible for the licensing of such experiments under the Animals (Scientific Procedures) Act 1986, ASPA. It seeks pre-action disclosure of a range of documents which it says are relevant to various licensing decisions and to their lawfulness. Their disclosure, it says, may confirm whether there is or is not an arguable case that the licences were granted unlawfully or that certain experiments were not licensed when they should have been. Such disclosure would avoid wasting costs and time if litigation were not in fact justified upon sight of those documents.
The Secretary of State contends that the Court has no power either under CPR Part 31.16 or under its inherent jurisdiction to order pre-action disclosure in judicial review proceedings. If it has power, it should exercise its judgment or discretion against ordering pre-action disclosure, leaving the normal procedures of judicial review to take their course. The Respondent contends that she is also prevented from disclosing all or much of what the BUAV wants by s24 of the 1986 Act which makes it a criminal offence to disclose confidential information obtained for the purposes of the Act. The Interested Parties, who took no part in the hearing, are universities in which the experiments were or are being undertaken.
The background to the application
The 1986 Act regulates experimental or scientific procedures applied to living animal vertebrates, where the procedure may have the effect of causing the animal "pain, suffering, distress or lasting harm"; s2(1). These are "regulated procedures" and may not be applied unless the person applying the procedure has a personal licence, and the procedure is applied as part of a programme of work "specified in a project licence authorising the application" of the regulated procedure; s3. The claim contemplated by the BUAV concerns project licences.
The project licence, under s5, granted to the person who takes overall responsibility for the programme, specifies the programme of work, authorises the application of the regulated procedure to specified animals and at a specified place. The purposes for which a project licence can be granted are set out in s5( 3). S5(4) is important: in determining whether and on what terms to grant a project licence, the Secretary of State "shall weigh the likely adverse effects on the animals concerned against the benefit likely to accrue as a result of the programme…"; this is the harm: benefit test. She has to be satisfied that the purpose cannot be achieved by any other reasonably practical method not entailing the use of protected animals, that the procedures use the minimum number of the least sensitive animals, cause the least pain, suffering, distress or lasting harm, and are the most likely to produce satisfactory results; s5(5).
(The 1986 Act was amended in many respects from 1 January 2013 by the Animals (Scientific Procedures) Act Amendment Regulations SI 2012 No 3039, which transposed into domestic law certain provisions of EU Directive 2010/63. The differences are not material for the purposes of this case, and as it is the un-amended Act which governs the decisions potentially at issue, I have referred to the Act in that form).
The threshold of pain for the procedure to be regulated is now that which would be caused by the introduction of a needle in accordance with good veterinary practice; this low threshold was already contained in guidance issued by the Secretary of State using her powers under the Act pre-amendment.
S24(1), which has not been amended, provides:
"(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 ha reasonable grounds for believing to have been given in confidence."
The offence is triable both ways, and imprisonable, but proceedings require the consent of the DPP.
The nature of the licence application and licence was described by the Court of Appeal in a case on the effect of s24, Secretary of State for the Home Department v British Union for the Abolition of Vivisection [2008] EWCA Civ 870, [2009] 1 WLR 636, as follows at paragraph 4:
"It is evident that to satisfy the Secretary of State on these matters the applicant must supply detailed information. The judge summarised the evidence ante, p 639, para 3:
"It is clear from the evidence that those who seek licences from the Home Office for animal research will often be required to submit a great deal of detailed information beforehand which is sensitive or confidential for a variety of reasons In particular, in order to satisfy the statutory requirements, it may be necessary for applicants to include material which is commercially sensitive, and/or potentially useful to competitors, and also details of locations and addresses which may be sensitive for security reasons."
When a licence is granted under this regime, it takes the form of a covering letter to which the application form is attached as a schedule. It thus includes all the information supplied as part of the application. There is an example in the papers before us, dating from 1998. It runs to almost 40 pages, and includes, in some 30 closely-typed pages, a detailed scientific description of the project and its purposes, and the treatment of the animals concerned."
That is borne out by the various redacted applications and licences which have been produced here. An assessor or inspector examines the application and makes a recommendation. Conditions are also contained in the covering letter granting the application.
Ms Thew, chief executive of BUAV, complains of the difficulty which BUAV has experienced in obtaining information about licence applications and grants from the Home Office and from the universities to which licences have been granted. It is often only the publication of research which alerts BUAV to the fact that a licence had been granted for it. Freedom of Information requests have taken a long time to achieve but partial success. The Home Office appeared obstructive, unwilling to "engage constructively" with BUAV. There was a public interest in the enforcement of the law, and a wider public interest in the issues which judicial review would raise.
The pre-action protocol letter dated 8 October 2012 from BUAV to the Home Office referred to two licences disclosed in December 2011 by Newcastle University, which authorised fundamental neuro-science research on macaques, that is research with no direct and specific purpose beneficial to human beings in mind. These had led the BUAV to believe that the nature of the experiments and the way the animals were treated so that they would perform the required tasks, (head restraint and fluid intake restrictions) showed that the Secretary of State had not applied the law correctly. It cited extensively from one of the disclosed licences to support its analysis that the licensor's approach was "fundamentally misconceived". The equivalent German authority had refused consent in January 2007 for a similar procedure on grounds which supported the contentions of the BUAV. The Secretary of State appeared "to have fallen into legal error, by failing, for the purposes of the cost: benefit test in section 5(4) ASPA, to take into account a significant adverse effect likely to be suffered by the macaques". This was part of the wider problem which led the BUAV, on available information to believe that the Secretary of State "routinely disregards or underestimates distress."
The BUAV was concerned however that it did not have all relevant and up to date information and did not wish to act prematurely or to bring a misguided challenge. It referred to two FOI requests which it had made of Newcastle University and of UCL, thus far unsuccessfully, but the purpose of which had been to see if the Secretary of State was still adopting the same approach to primate distress. Judicial review proceedings were envisaged but the BUAV hoped that pre-action disclosure would reassure it so that proceedings would be unnecessary.
The letter therefore requested:
i) the full licences which were the subject of the July 2012 FOI request of Newcastle University i.e. the two licences which led to two identified research papers published in 2011(60/2405 and 60/3362) and any other licence authorising the continuation of the animal research authorised by PPL 60/3362; (those two licences had been disclosed in December 2011 in redacted form);
ii) the licences which were the subject of the July 2012 FOI request of UCL i.e. the two licences which led to the two research papers published in 2009 and 2011; (these were eventually disclosed in redacted form later in 2012,...
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