The King on the application of Cruelty Free International v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Linden |
| Judgment Date | 05 May 2023 |
| Neutral Citation | [2023] EWHC 1064 (Admin) |
| Docket Number | Case No: CO/3748/2021 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 1064 (Admin)
THE HONOURABLE Mr Justice Linden
Case No: CO/3748/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Alan Bates (instructed by Advocates for Animals) for the Claimant
Zoe Leventhal KC and Tom Tabori (instructed by Government Legal Department) for the Defendant
Hearing dates: 18 and 19 January 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 5 th May 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
INTRODUCTION
Part of the Defendant's functions is the regulation of animal experimentation in Great Britain and the development of policy in relation to this issue. The regulatory aspect is carried out through the Animals in Science Regulation Unit (“ASRU”), which is responsible for determining applications for licenses pursuant to the Animals (Scientific Procedures) Act 1986 (“ASPA”) and for dealing with compliance issues. Policy was also dealt with by the ASRU until April 2022 but is now dealt with by the Animals in Science Policy and Coordination Function (“the Policy Unit”).
From 1998, government policy was that applications for licences for animal testing of cosmetics, or ingredients which are “wholly or primarily” used in such products, would be refused (“the Policy”). The Policy continued when subsequent EU legislation was enacted, ultimately in the form of Regulation (EC) No 1223/2009 (“the Cosmetics Regulation”), which aims to ensure the safety of cosmetics for the end user but, under Article 18, bans the testing on animals of cosmetics and ingredients for cosmetics, as well as the marketing of cosmetic products or ingredients, which have been tested on animals “in order to meet the requirements of” the Regulation. These bans were introduced over time and they became fully effective in March 2009 in the case of the testing ban, and on 11 March 2013 in the case of the marketing ban. The bans were considered to be consistent with the Policy.
However, there was a question at EU level as to how the bans under Article 18 of the Cosmetics Regulation interacted with the more permissive regime, at least in relation to animal testing, under Regulation (EC) No 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (“REACH”). This legislation imposes registration and information requirements on manufacturers and importers of chemical substances which aim to ensure the safety of chemicals from the perspective of human health and the environment. The chemical substances to which REACH applies include, in principle, substances which are or may be used in cosmetics.
On 24 October 2014, the European Chemicals Agency (“EChA”) and the EU Commission therefore issued a Joint Statement on the “Interface between REACH and Cosmetics Regulations” (“the 2014 Joint Statement”). This document emphasised that the marketing and testing bans under the Cosmetics Regulation apply where the testing of the product or ingredient is carried out “in order to meet the requirements of” that Regulation. The 2014 Joint Statement took the position that, although animal testing should only ever be a last resort, registrants under REACH were in principle permitted to carry out testing on animals of substances which had various uses, including in cosmetics, in order to meet the information requirements of REACH in relation to human health. Registrants of substances which were exclusively for use in cosmetics could not use animal testing unless that testing was required in order to assess the risk to workers, involved in the manufacture or production of the substance, of exposure to that substance. Animal testing for the purposes of environmental endpoints was in principle permissible too. This view was more permissive of animal testing than the Policy.
In July 2017 the European Ombudsman rejected a challenge to the 2014 Joint Statement and, on 13 February 2019, the EU Commission reiterated its view in a letter to the Claimant. On 18 August 2020, the Board of Appeal of the EChA then handed down its decisions in two appeals (Case nos A-009–2018 and 010–2018) brought by Symrise AG against requirements imposed by the EChA pursuant to REACH (“ Symrise”). These requirements were to carry out specified tests on animals of a substance which is used exclusively in cosmetic products. Symrise's case was that it would be contrary to the bans under the Cosmetics Regulation to carry out these tests, but this argument was rejected by the Board of Appeal. It held that tests required by REACH were not tests carried out “ in order to meet the requirements of [the Cosmetics Regulation]”: they were tests carried out in order to meet the requirements of REACH, and therefore were not subject to the bans under Article 18. The decisions in Symrise are being challenged by way of actions for an annulment in the EU General Court ( Cases T-655/20 and T-656/20) and the case was heard in November 2022. Judgment is awaited.
The Claimant, formerly known as the British Union for the Abolition of Vivisection, is an organisation dedicated to the reduction and ending of the use of animals in scientific experiments in the United Kingdom and globally. Amongst its other activities, it campaigns and lobbies on this issue at a political level, including in relation to the law, and it has also conducted litigation which raises issues as to the correct interpretation of existing law on the issue of animal experimentation. The Policy was in part a response to its lobbying activities at the end of the 1990s.
The Claimant was concerned about the position taken by the EU Commission and the EChA in the 2014 Joint Statement and it raised the matter with the Government, including in the context of a claim for judicial review brought against the Defendant and the Secretary of State for Business Innovation and Skills (“BIS”) in 2015 (“the 2015 judicial review”). This claim sought the determination of certain issues about the interpretation of the Cosmetics Regulation and REACH. The Defendant's position at that stage, as reflected in a newsletter which the ASRU issued to licence-holders on 29 July 2015, was that whatever the strict position in law, there remained “an absolute ban” on animal testing of cosmetics or substances primarily intended for use in cosmetics. The legal issues raised in the 2015 judicial review therefore did not arise for determination. The claim against the Defendant was withdrawn given that the Policy remained in place.
However, in the light of queries from licence holders and internal concerns about being out of step with EU law, at the end of 2017 the ASRU began to consider whether the Policy should be maintained. At the end of 2018 there were also concerns raised at EU level about the United Kingdom's position, and it was concluded within the ASRU that government policy should be brought into line with the EU interpretation of the Cosmetics Regulation so that applications for licenses to carry out animal experimentation which was required by REACH would be considered under the ASPA and could in principle be granted. Accordingly, on 14 February 2019 a licence was granted on this basis and other licences have been granted since then.
The Defendant accepts that this change of position “was not fully documented or widely communicated at the time”. Indeed, the Claimant only became aware of what at that stage appeared to be a prospective change of policy on 2 October 2020. Both the Cosmetics Regulation and REACH are retained EU law pursuant to the European Union (Withdrawal) Act 2018 and, on 21 August 2020, the Claimant had raised questions about the United Kingdom's approach after Brexit in the light of Symrise and had advocated amendments to the Cosmetic Regulation and REACH, as applied in this country, which would make clear that the United Kingdom would not interpret the law in the same way as the EU. In effect, the Claimant was told by the Department for Environment Food & Rural Affairs (“DEFRA”), which has responsibility for chemicals policy generally, that the Government agreed with the decisions in Symrise.
However, it was not until 3 August 2021 that the Defendant confirmed that she had reconsidered the Policy and had aligned her approach to that of the Board of Appeal in Symrise. It was only in the course of these proceedings – in the Summary Grounds of Defence — that the Claimant was told that there had in fact been a change of policy in effect since February 2019 i.e. 18 months before Symrise.
It is in these circumstances that the Claimant complains that the Government's change of policy was effected “secretly” and without consultation. It also argues that the Symrise decisions were wrong in law and, as a result, current government policy is based on a misunderstanding of the law and contrary to the Cosmetics Regulation.
THE PROCEEDINGS
The Statement of Facts and Grounds pleads four grounds of challenge. The Claimant alleges:
i) First, that contrary to section 5B(3)(d) of the ASPA, the ASRU is not carrying out a harm/benefit analysis when determining applications for licences to test cosmetic products and ingredients on animals. Rather, licenses are automatically granted where the testing is required by the Health & Safety Executive (“HSE”), which is the regulator for REACH in this country. The Defendant's functions under the ASPA are therefore, in effect, being unlawfully delegated to the HSE. (“Ground 1”).
ii) Second, that the Defendant breached the Claimant's legitimate expectations, and/or public law principles of fairness, by failing to consult prior to...
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