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).

R (CAMPAIGN TO END ALL ANIMAL EXPERIMENTS) v HOME SECRETARY

Last updated: 8:21 PM BST 30/04/2008
Court of Appeal (Civil Division)

May, Dyson and Moses LJJ

April 23, 2008

Animal research organisations – Animal welfare – Guidelines – Irrationality – Licences – Subordinate legislation – Vivisection – Categorisation of Adverse Effects Under Animals (Scientific Procedures) Act 1986 – s. 21 Animals (Scientific Procedures) Act 1986

FACTS

The appellant secretary of state appealed against a decision ([2007] EWHC 1964 (Admin)) that a chief inspector of the Animals (Scientific Procedures) Inspectorate appointed by him to perform an investigation had misconstrued statutory guidance and reached a perverse conclusion. The respondent union (B) cross-appealed from the judge’s dismissal of another part of its case. The inspector had been appointed after B had raised concerns with the secretary of state that adverse effects experienced by marmosets as a result of tests forming part of research by a university into the functioning of the human brain ought to have been categorised as “substantial” instead of “moderate”. The inspector had analysed the Guidance on the Operation of the Animals (Scientific Procedures) Act 1986, as published pursuant to s. 21 of the Act, and had found the effects to have been properly categorised and on the basis of his report, the secretary of state had taken no action.

B had applied for judicial review of the decision that the procedures were properly categorised and the court had found the inspector’s conclusion to be wrong in part. It had found that the criterion for classification of a procedure requiring a “substantial” severity limit was that the procedure may result in a “major departure” from the animal’s state of health or well-being, and that the inspector had not accepted that adverse effects severe enough to require the killing of the animal were capable of amounting to major departures from its health or well being.

The judge had found that the only conclusion open to the inspector was that the effects of the university’s procedures were properly to be classified as “substantial” and that his conclusion could not stand. The secretary of state submitted that

1. (1) the judge had been wrong to decide that anticipated humane killing was an indicator of severity in the sense that it would require a severity limit of “substantial”;
2. (2) the judge had had no proper basis for rejecting scientific expert evidence and had been wrong in law to find that the inspector had misconstrued the Guidance and that a “substantial” severity limit had been the only conclusion open to him on the facts.

ISSUES

(1) Whether the judge had been wrong to decide that anticipated humane killing was an indicator of severity in the sense that it would require a severity limit of “substantial”.

(2) Whether the judge had had no proper basis for rejecting scientific expert evidence and had been wrong in law to find that the inspector had misconstrued the Guidance and that a “substantial” severity limit had been the only conclusion open to him on the facts.

HELD (appeal allowed, cross-appeal dismissed)

(1) There was no dispute that humane killing was not, itself, an adverse effect. Its purpose was to prevent or control adverse effects. The purpose of humane killing was to prevent or bring an end to what would otherwise be adverse effects. It was a matter of expert scientific judgment whether the state of the animal before it was humanely killed would comprise adverse effects requiring a “substantial” severity limit, or even a “moderate” severity limit, since the risk of exceeding a “mild” severity limit might be avoided by humane killing. The reference to “humane endpoints” in para.5.41 of the Guidance implied no more than that humane killing should be taken into account where appropriate and neither that wording nor the reference to “acute toxicity procedures where…death is an endpoint” necessarily equated with or predicated humane killing or detracted from the analysis of severity limits.

(2) The court should be very slow to conclude that the inspector and the expert witness in the court below had reached a perverse scientific conclusion. The Guidance, and scientific judgment generally, was not immune from lawyers’ analysis but the court had to be careful not to substitute its own inexpert view of the science for a tenable expert opinion. In the instant case, the inspector’s review had not been shown to have proceeded on an error of law as to the meaning and application of the first sentence of the description of the “substantial” severity limit. The judge could not have found the inspector’s conclusions to be perverse without an intense analysis of expert scientific material, which he had rightly not attempted to undertake. Therefore his decision that the inspector’s decision was clearly wrong could not stand.

(3) B’s assertions on the cross-appeal concerned essentially factual questions that were at the very fringe of what was appropriate for a court to consider on a judicial review application. Its submissions contained pages of dense factual material about individual marmosets, which should not be the subject of detailed inexpert analysis in court when they raised no important point of law or factual matter of enduring relevance. The main question was whether the animals had been properly cared for, and the inspector had been properly entitled to find that they had.

Nigel Giffin QC and Julian Milford (instructed by Treasury Solicitor) for the appellant. Richard Drabble QC and Simon Cox (instructed by David Thomas) for the respondent.