University of Newcastle upon Tyne GIA 194 2011
| Jurisdiction | UK Non-devolved |
| Judge | Judge N J Wikeley |
| Judgment Date | 11 May 2011 |
| Neutral Citation | 2011 UKUT 185 AAC |
| Subject Matter | Information rights |
| Respondent | Information Commissioner and BUAV |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | GIA 194 2011 |
| Appellant | University of Newcastle upon Tyne |
DECISION BY THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is (1) to give permission to appeal but (2) to dismiss the appeal by the appellant.
The decision of the First-tier Tribunal (General Regulatory Chamber) (Information Rights) dated 10 November 2010 under file reference EA/2020/0064 does not involve an error on a point of law. The appeal is dismissed.
This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007.
REASONS
The background to this application and appeal
1. The British Union for the Abolition of Vivisection (BUAV) made a request to the University of Newcastle upon Tyne (“the University”) under the Freedom of Information Act (FOIA) 2000. BUAV wanted to obtain information contained in project licences issued under the Animal (Scientific Procedures) Act (ASPA) 1986 in respect of experiments on non-human primates carried out at the University. The University refused to disclose the information in question.
2. BUAV complained to the Information Commissioner. In his Decision Notice dated 3 March 2010 (under reference FS50215164) the Information Commissioner (“the Commissioner”) decided that (i) the University did not hold the disputed information; and (ii), even if it did, the University was entitled to rely on the exemption in section 44(1)(a) of FOIA (there being a relevant bar to disclosure in the form of section 24(1) of ASPA). The Commissioner did not consider any of the University’s other arguments (e.g. that if the information was held, then it was covered by the exemptions under sections 38 (health and safety) and 43 (commercial interests)).
3. BUAV appealed to the First-tier Tribunal (“the tribunal”). At its hearing on 15 September 2010 the tribunal took the two issues decided by the Commissioner as preliminary points. In its subsequent decision, dated 10 November 2010 (EA/2010/0064), the tribunal decided both points against the University. So the tribunal ruled that (i) the requested information was held by the University at the relevant time; and (ii) the information was not exempt from disclosure by virtue of section 44(1)(a) of FOIA. The tribunal, like the Commissioner, did not deal with the sections 38 and 43 arguments, or indeed any other grounds for refusing disclosure.
The application for permission to appeal
4. The University’s application for permission to appeal to the Upper Tribunal was refused by the tribunal. The University renewed that application before the Upper Tribunal. I directed an oral hearing of that application and indicated that, if permission was granted, I was minded to deal with the appeal against the tribunal’s decision on the two preliminary issues on a rolled-up basis. All parties helpfully consented to that approach (or, in the Commissioner’s case, did not object).
5. I held an oral hearing of the University’s application at Harp House on 21 April 2011. The University was represented by Mr Timothy Pitt-Payne QC and by Ms Joanne Clement of Counsel (Ms Clement had appeared for the University at the tribunal below). BUAV was represented by its solicitor, Mr David Thomas. The Commissioner has not taken an active part in these proceedings before the Upper Tribunal, other than to indicate that he maintains his position that the original decision notice was correct, as argued before the First-tier Tribunal. I am indebted to all the advocates for their detailed and helpful oral and written submissions.
6. I am satisfied that the arguments advanced by Mr Pitt-Payne and Ms Clement are arguable in the sense of being other than unrealistic or fanciful. That much is evident from the length of this decision. I am also satisfied that it is appropriate to give permission to appeal in terms of (I hope) assisting in the orderly development of the law, in that there has as yet been no appellate-level guidance on the circumstances in which requested information is “held” by a public authority. I understand Mr Thomas’s frustration that this appeal on the preliminary points has delayed the tribunal below tackling the substantive merits of BUAV’s request and its subsequent appeal, but I fear that is one of the occupational hazards of litigation. I therefore give the University permission to appeal to the Upper Tribunal. However, I am dismissing the appeal for the following reasons. Like the Commissioner and the First-tier Tribunal before me, I am not making any findings (nor indeed expressing any views) in relation to the sections 38 and 43 arguments, or any other possible grounds for refusing disclosure.
The Animal (Scientific Procedures) Act 1986 regime
7. This case can only be understood against the background of the regime established by the Animal (Scientific Procedures) Act 1986. I was taken through the relevant statutory provisions in considerable detail by both Mr Pitt-Payne and by Mr Thomas. I intend them no disservice by summarising what appear to be the core provisions for present purposes as follows.
8. Mr Thomas, naturally, took a step back from ASPA. His starting point was the Animal Welfare Act 2006, which creates various animal cruelty offences. However, section 58(1) of the 2006 Act expressly provides that “Nothing in this Act applies to anything lawfully done under the Animals (Scientific Procedures) Act 1986”. According to its long title, ASPA provides “for the protection of animals used for experimental or other scientific purposes”.
9. Section 2(1) of ASPA introduces the concept of “a regulated procedure”, which means “any experimental or other scientific procedure applied to a protected animal which may have the effect of causing that animal pain, suffering, distress or lasting harm.” Section 3, which is headed “Prohibition of unlicensed procedures”, then provides as follows:
“No person shall apply a regulated procedure to an animal unless—
(a) he holds a personal licence qualifying him to apply a regulated procedure of that description to an animal of that description;
(b) the procedure is applied as part of a programme of work specified in a project licence authorising the application, as part of that programme, of a regulated procedure of that description to an animal of that description; and
(c) the place where the procedure is carried out is a place specified in the personal licence and the project licence.”
10. Section 3 accordingly provides for what might be described as “the three Ps” – the person, the project and the place must all be licensed by the Home Office. Section 4 makes provision for personal licences and section 5 for project licences, while section 6 governs the licensing of “scientific procedure establishments”. The terms of sections 3-6 make it clear that the three types of licence (or, in the case of section 6, a “certificate of designation”) are designed to interlock. Each licence must be in place, or there is a breach of section 3 of ASPA – and, leaving aside penalties under ASPA (see section 22), there is the risk of a criminal offence being committed under the 2006 Act.
11. Personal licences are granted to individuals with the appropriate education, training and competence and permit the holder “to apply specified regulated procedures to animals of specified descriptions at a specified place or specified places” (ASPA, section 4(1)).
12. Project licences are licences specifying “a programme of work and authorising the application, as part of that programme, of specified regulated procedures to animals of specified descriptions at a specified place or specified places” (ASPA, section 5(1)). They can only be granted “to a person who undertakes overall responsibility” for the programme, and only if the Home Office is satisfied that certain criteria (e.g. a cost-benefit analysis) are met (ASPA, section 5(3)-(6)).
13. Certificates of designation are governed by the general rule under ASPA section 7(1), namely that “no place shall be specified in a project licence unless it is a place designated by a certificate issued by the Secretary of State under this section as a scientific procedure establishment”. Section 6(4)(a) stipulates that such a certificate can only be issued “to a person occupying a position of authority at the establishment in question”. Home Office guidance, published under section 21 of ASPA, states that such individuals “must represent the governing authority of the establishment”, and gives the example of a university registrar or director of a research institute (Home Office, Guidance on the Operation of the Animal (Scientific Procedures) Act 1986 (HC 321, 23 March 2000), paragraph 4.5). The certificate must also specify a “named veterinary surgeon” (NVS) and a “named animal care and welfare officer” (NACWO) at the establishment (see section 6(5)).
14. Finally, section 24(1) of ASPA, which is headed “Protection of confidential information”, provides for a criminal offence in the following terms:
“(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...
To continue reading
Request your trial
-
Ministry of Justice
...in the case of University of Newcastle upon Tyne v the Information Commissioner and the British Union for the Abolition of Vivisection [2011] UKUT 185 (AAC, 11 May 2011). It explained that the concept of ‘holding’ information for FOIA purposes “is not purely a physical concept, and has to b......
-
Warwick District Council
...in the case of University of Newcastle upon Tyne v the Information Commissioner and the British Union for the Abolition of Vivisection [2011] UKUT 185 (AAC, 11 May 2011). It explained that the concept of ‘holding’ information for FOIA purposes “is not purely a physical concept, and has to b......