West Law Report

HOME SECRETARY v BRITISH UNION FOR THE ABOLITION OF VIVISECTION & ANR

Last Updated: 11:45PM BST 14/05/2008
Queen’s Bench Division Eady J April 25, 2008
Queen’s Bench Division

Eady J

April 25, 2008

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Animal research organisations – Animal welfare – Confidential information – Data protection – Privacy – Public interest – Requests for information – Vivisection – s. 24 Animals (Scientific Procedures) Act 1986 – Duty of confidence – Misuse of private information – Breach of confidence – Animals (Scientific Procedures) Act 1986 – S. 24 Animals (Scientific Procedures) Act 1986 – s. 41 Freedom of Information Act 2000 – s. 44 Freedom of Information Act 2000 – Freedom of Information Act 2000 – Art. 8 European Convention on Human Rights 1950 – Art. 10 European Convention on Human Rights 1950

FACTS

The appellant secretary of state appealed, pursuant to the Freedom of Information Act 2000 s. 59, against a decision of the Information Tribunal. The breeding and supply of animals for scientific procedures was governed by the Animals (Scientific Procedures) Act 1986 and the Home Office was responsible for related regulation.

Applications to use animals for research had to be submitted to its Animal Scientific Procedures Division for scrutiny before a decision to grant a project licence could be made. Statutory requirements meant that material that was commercially sensitive or useful to competitors and details of locations that could be sensitive for security reasons might have to be included.

The division responsible introduced a policy that tried to balance confidentiality with freedom of information requirements: applicants were asked to submit abstracts of their projects for the Home Office website.

Shortly after the new policy began, the first respondent (B) sought, under the 2000 Act, further information on certain applications. Consequently, information extra to the abstracts that was not exempt under the 2000 Act was provided. B submitted to the tribunal that under s. 24 of the 1986 Act, a penal provision, any information qualifying as “given in confidence” had to be such that it would be an actionable breach for it to be revealed in response to a request under the 2000 Act.

The tribunal upheld that view, interpreting s. 24 as having a similar meaning to s. 41 of the 2000 Act and directing the Home Office to reconsider its interpretation of s. 44 of the 2000 Act. The main issue in the instant case was how far information needed to be made available to the public, given that it had a legitimate interest in knowing what was taking place with regard to animal research, and given the right to make requests under the 2000 Act.

ISSUE

How far information needed to be made available to the public.

HELD (appeal allowed)

(1) The tribunal had relied on the principles of Coco v AN Clark (Engineers) Ltd [1968] FSR 415 Ch D, which provided an exclusive definition such that, whenever “in confidence” appeared in a statute, the legislature must have had those principles in mind. That was not necessarily the case and much depended on context.

The tribunal also read the notion of “public interest” into s. 24 of the 1986 Act, imposing an onerous obligation to weigh up its existence in every case of prima facie confidentiality. The modern law of confidence was wider than the principles applying where an equitable duty of confidence arose, or where there were commercial secrets; it could also arise by express or implied agreement, and presumably under a statutory duty, and there was also a distinction between “old-fashioned breach of confidence” and the modern tort of “misuse of private information”, Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] 2 AC 457 and McKennitt v Ash [2006] EWCA Civ 1714, [2008] QB 73 considered.

It was important in the instant case to remember the need to look at the jurisprudence of the European Convention on Human Rights 1950 art. 8 and art. 10. The tribunal had not addressed those developments and so had proceeded on an incomplete legal basis.

(2) There was tension between s. 24 of the 1986 Act and the aim of greater public access to information that underlay the 2000 Act. It was clear that the government deliberately retained s. 24 of the 1986 Act when repealing provisions before the 2000 Act, and did so as the scientific community had been concerned about confidentiality if it was repealed.

Thus, the court should probably assume that s. 24 was included to provide additional or parallel protection to that in s. 41 of the 2000 Act and its effect should not be diluted. The court should not assume that there was no such intention.

Parliamentary materials gave no answer in the instant case, let alone one that pointed to the tribunal’s interpretation, and the tribunal had erred in concluding that the history of s. 24 of the 1986 Act lent it support.

(3) The instant court’s interpretation was based on the statutory wording, its context, the modern law of confidence and the arguments of the parties.

Accordingly, the information sought by B was obtained by the Home Office division in the exercise of its functions under the 1986 Act; the relevant official reasonably believed that it had been “given in confidence” at the time given; the disclosure sought from the Home Office would not be for the purpose of exercising its functions under the 1986 Act; the terms of s. 24 of the 1986 Act as it stood meant that disclosure was prohibited and would constitute a criminal offence; and the exemption in s. 44 of the 2000 Act applied to the information sought.

Karen Steyn (instructed by Treasury Solicitor). Daniel Alexander QC (instructed by David Thomas) for the first respondent. Akhlaq Choudhury (instructed by Geraldine Dersley).

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