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Cite as: [2005] EWHC 530 (Admin)

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Neutral Citation Number: [2005] EWHC 530 (Admin)
Case No: CO/7004/2003

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
12 April 2005

B e f o r e :

MR JUSTICE STANLEY BURNTON
____________________

Between:
The Queen on the application of THE CAMPAIGN TO END ALL ANIMAL EXPERIMENTS (trading as the British Union for the Abolition of Vivisection)


Claimant
- and -

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Defendant

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Wordwave, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Richard Drabble QC and Simon Cox (instructed by David Thomas) for the Claimants
Jonathan Swift (instructed by the Treasury Solicitor) for the Defendant

____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
CROWN COPYRIGHT
____________________

Crown Copyright ©


     

    Mr Justice Stanley Burnton:


     

    Introduction

  1. The Claimant is a company limited by guarantee that claims to be the leading anti-vivisection body in the UK. It pursues its campaign by lawful means, and in particular by seeking to uphold the existing law that provides protection for laboratory animals.
  2. Such animals are given statutory protection by the Animals (Scientific Procedures) Act 1986 ("the Act").
  3. In these proceedings the Claimant seeks judicial review of decisions made by the Home Secretary in connection with the Act and his policy in relation to it. In essence, it contends that the Home Secretary has misconstrued and misapplied the Act and his policy.
  4. On 7 February 2005, I heard the Claimant's application for permission to apply for judicial review. Due to lack of time, argument was not completed. Both parties submitted supplemental written submissions.
  5. This is my judgment on the application for permission.
  6. The statutory framework

  7. The Act regulates the circumstances in which animals may be used for experimental or other scientific purposes. It prohibits such procedures where they may have the effect of causing a vertebrate pain, suffering, distress or lasting harm, unless they are authorised by licences issued under the Act. An animal researcher must hold a personal licence, authorising him to carry out such procedures, and a project licence, authorising the programme of experiments or procedures. Licences under the Act are granted by the Home Secretary. He is advised by the Inspectorate, who have professional qualifications, knowledge and experience, and who also monitor compliance with licence conditions.
  8. The most relevant provisions of the Act for present purposes are sections 2, 5, 6, 10, 21 and 24.
  9. The Animal Procedures Committee ("the APC"), established as required by section 19 of the Act, is under a statutory duty "to advise the Secretary of State on such matters concerned with this Act and his functions under it as the Committee may determine or as may be referred to the Committee by the Secretary of State": see section 20.
  10. The facts in summary

  11. In March 2001, the Claimant succeeded in infiltrating an undercover investigator to work as an animal technician in a research unit of Cambridge University. She worked there until January 2002. In May 2002, the Claimants produced a report setting out what it contended were the results of its investigation into primate (specifically, marmoset) research at Cambridge University. The research in question had been carried out under three project licences, all of which had the overall objective of improving understanding of the human brain, with the ultimate object of contributing towards the development of treatment for strokes, Parkinson's disease and Huntingdon's disease. The report is a substantial document: the revised version of August 2002 consists of 44 closely typed pages. It was highly critical of the treatment of the animals in question.
  12. On the basis of that report, the Claimant asked the Government to set up an independent inquiry. The Government refused to do so. Instead, in June 2002, the responsible Minister (the Parliamentary Under Secretary of State) asked the Chief Inspector to review the licences granted under the Act relating to the research carried out at Cambridge.
  13. The Chief Inspector reported to the Minister in October 2002. By letter dated 10 February 2003, the Minister informed the Claimant that he had accepted the Chief Inspector's recommendations. There was no relevant communication between the Claimant and the Home Office between the date of that letter and the Claimant's 24-page letter dated 8 May 2003. In that letter, the Claimant set out detailed complaints about the Chief Inspector's report and asked the Minister to commission an independent inquiry. The letter included a series of questions about the policy, practice and law applied to research involving animals. The Minister replied by letter dated 1 October 2003. By letter dated 21 October 2003, the Claimants sought clarification of certain matters. The Minister replied on 19 November 2003.
  14. The Claimant sent to the Home Secretary a letter before claim dated 4 December 2003. He replied on 15 December 2003. On 23 December 2003, the Claimant wrote to the Minister raising new issues, which were not specific to the Cambridge licences, concerning (a) guidance issued by him on water and food restriction and deprivation, and (b) whether he accepted that he should take into account the suffering and death of stock animals (i.e., laboratory animals not used in procedures) when exercising his residual discretion under section 5(4) of the Act. By letter dated 19 February 2004, the Home Secretary replied that the guidance he had published was not "guidance" within section 21(1) of the Act. He declined to comment on the issue raised concerning stock animals.
  15. In 2003 the APC set up a working group to consider the Claimant's allegations. Its terms of reference were "to assess the BUAV's allegations about the use of marmosets at Cambridge University in the light of the Chief Inspector's report and the Home Office response to that report, in order to identify areas for further discussion by the APC". The results of that assessment or further discussion, if there are any to date, were not in evidence.
  16. These proceedings were begun on 31 December 2003. There are now 6 grounds on which judicial review is sought.
  17. Standing

  18. Having regard to the modern approach to claims for judicial review by representative bodies, the Home Secretary did not suggest that the Claimant lacks a sufficient interest in the subject matter of these proceedings to justify judicial review.
  19. Grounds 1 and 2

  20. These grounds relate to the severity limits applied to procedures, the severity bands applied to licences (ground 1) and to the provision made by licensees for monitoring and caring for animals after they have undergone surgery (ground 2).
  21. Ground 1 seeks to challenge the decision of the Defendant in his letter of 1 October 2003 and paragraph 12 of its appendix accepting the Chief Inspector's conclusion that the moderate severity limit was correctly assigned to each of the Cambridge licences.
  22. The Claimant contends that there is widespread misallocation of severity limits and bands in non-human primate research, with the result that the true amount of laboratory animal suffering is being concealed. It contends that the Chief Inspector's approval of the severity limits and bands applied to the Cambridge research is typical of a widespread practice that under-states the level of distress and suffering involved.
  23. The severity limits are not contained in statute. They are established by the Guidance on the Operation of the Act published by the Home Secretary pursuant to section 21. For present purposes, the relevant severity limits are "Moderate" and "Substantial". Those categories are described in paragraph 5.42 of the Guidance as follows:
  24. Moderate
    regarded as moderate include toxicity tests (which do not involve lethal endpoints) and many surgical procedures (provided that suffering is controlled and minimised by effective post-operative analgesia and care). Protocols that have the potential to cause greater suffering but include controls which minimise severity, or terminate the protocol before the animal shows more than moderate adverse effects, may also be classed within the moderate severity limit.
    Substantial
    that may result in a major departure from the animal's usual state of health or well-being. These include: major surgery; and some models of disease, where welfare may be seriously compromised. If it is expected that even one animal would suffer substantial effects, the procedure would merit a "substantial" severity limit.
  25. Paragraphs 5.40 and 5.41 of the Guidance are as follows:
  26. 5.40 The severity limit for each protocol is determined by the upper limit of the expected adverse effects that may be encountered by a protected animal, taking into account the measures specified in the licence for avoiding and controlling adverse effects. It represents the worst potential outcome for any animal subjected to the protocol, even if it may only be experienced by a small number of the animals to be used.
    5.41 In assessing the severity limits of a protocol, account should be taken of the effect of all the procedures (with a regulated or not) applied to each animal or group of animals; the nature and extent of the likely adverse effects; the action taken to mitigate the effects; and the humane endpoints to be applied.
    5.42 The Secretary of State will not license any procedures likely to cause severe pain all distress that cannot be alleviated.
  27. Paragraphs 5.47 and 5.48 of the Guidance relate to the severity band of the project, rather than the severity limits of the individual protocols:
  28. 5.47 The assessment of the overall severity of a project will reflect the cumulative effect of each procedure. This assessment is used by the Secretary of State to weigh the likely adverse effects on all the animals to be used against the benefits likely to accrue, as required by Section 5 (4) of the Act.
    5.48 The assessment of the severity band from the project as a whole reflects the number of animals used on each protocol and the actual suffering likely to be caused as result. It is based on the overall level of cumulative suffering to be experienced by each animal, not just the single worst possible case. It takes into account the proportion of animals expected to reach the severity limit of the protocol and the duration of exposure to the severity limits, the nature and intensity of the adverse effects, and the actions to be taken to relieve the suffering.
  29. Severity limits are relevant in a number of respects. First, and most importantly, the Home Secretary's assessment of the animal suffering involved is relevant to the decision that the Home Secretary must make under section 5(4) of the Act, which requires him, in determining whether and on what terms to grant a project licence, to weigh the likely adverse effects on the animals concerned against the benefits likely to accrue as result of the programme to be specified in the licence. Secondly, it is the policy of the Home Secretary to refer to the APC applications for licences for " the use of non-human primates in procedures of substantial severity": see paragraph 33 of Appendix G to the Guidance. The Claimant contends that the Home Secretary mis-categorises as moderate procedures applied to non-human primates that are in fact of substantial severity, with the result that they are not referred to the APC. Thirdly, the statistics published by the Home Secretary specify the numbers of licences granted for procedures of substantial severity. It follows that if such procedures are mis-categorised as of moderate severity, the public will be misled. Fourthly, classification is relevant to the duties of licence holders. A licence specifies the severity limit applicable to the procedure or protocol to which it relates. Paragraph 8 of the standard conditions of project licences imposes on the project licence holder responsibility to ensure adherence to that limit, and requires him to notify the Home Secretary if that severity limit appears to have been, or is likely to be, breached.
  30. However, the importance of severity limits and bands should not be over-stated. The Chief Inspector's report points out that severity limits have a limited role in the licensing decision. It is an administrative tool, a shorthand summary of the predicted or possible injury to the health and wellbeing of an animal. In exercising the discretion conferred by section 5, regard is had to the detailed description of the procedures in question rather than the severity limit or band proposed. Similarly, the protocol, rather than the severity limit, will generally identify the humane endpoint to be applied. The Chief Inspector stated in his report:
  31. In short, judgements of animal welfare costs, the level of suffering that may be produced, and the humane endpoint is to be applied are determined by the detailed narrative descriptions on the form of applications and licence, not by the shorthand severity limits assigned to the protocols or the severity and assigned to the licence.
    Changing the assigned shorthand severity limit of a protocol or severity band of a project licence would not of itself alter the level of suffering that might be experienced by an animal undergoing regulated procedures: changing the narrative descriptions appears elsewhere in the licence would.
  32. Furthermore, so far as a reference of the Cambridge licences to the APC is concerned, the Home Secretary points out that the APC may advise him on any subject of its own choosing, and indeed, as mentioned above, it has considered the Claimant's complaints concerning the experiments at Cambridge. Mr Swift informed me that the APC sees all primate applications and may call for details of them for their further consideration. He also points out that a higher severity limit may be avoided if the procedure involves the humane killing of an animal before that severity level is reached. Put another way, a higher severity level permits an animal to suffer to a greater extent (e.g., to a substantial level rather than a moderate level) before it is killed. It is for that reason that licence 80/1249 required that an animal that developed persistent epilepsy be killed. However, it seems to me that such an animal will already have suffered a major departure from its usual state of health: that is why it is killed.
  33. All of the 31 protocols under the three licences to which the Claimant's report related had been given moderate or mild severity limits; none had been given a substantial severity limit. One of the objectives of the review carried out by the Chief Inspector into the Cambridge project licences was to establish whether the severity limits had been properly applied with respect to the three project licences.
  34. The Chief Inspector's report is also a substantial document, of 79 pages. As stated above, he concluded that all of the severity limits assigned to the protocols specified in the licences conformed to the principles set out in the Guidance.
  35. The Chief Inspector stated that a number of the protocols classified as of moderate severity had been so classified on the basis that, among other things, should more severe adverse effects be seen, the problems would be promptly identified and remedied. There is thus a link between the severity limit that is appropriate to a protocol and the availability of prompt identification and remedy of unexpected severe adverse effects, and therefore a connection between the first two grounds on which judicial review is sought.
  36. Major surgery is not necessarily a procedure requiring a substantial severity limit. It will do so if it is liable to result in a major departure from the animal's usual state of health or well-being. I reject the Claimant's contention (see paragraph 11 of its Particulars of Claim and Evidence relied upon) that major surgery necessarily requires a substantial severity limit. Furthermore, hindsight may be an unreliable indication as to whether a severity limit was correctly allocated in the first place. The unexpected death of an animal does not necessarily indicate that it was incorrect originally to consider that there would not be a major departure from its usual state of health or welfare. Hence the fact that some animals died (see paragraph 10 of the same document) does not of itself justify an argument that it was perverse to apply a moderate severity limit to the procedure concerned.
  37. There is nonetheless evidence on which it is arguable that the Chief Inspector erred in reaching his conclusion that the severity limits had been correctly applied. I refer, by way of example, to the protocol of licence 80/1326, which envisages repetitive seizures that may not be well controlled by drug treatment; and to the protocol of licence 80/1249, which envisages that an animal may suffer persistent epilepsy, in which event the animal is to be killed. Cambridge's Standard Operating Procedure attached to licence 80/1249 envisages that some animals will suffer grade 4 consequences, which include serious neurological symptoms, including seizures and "psychotic" behaviour.
  38. However, the question now raised is not whether the Chief Inspector's conclusions were perverse or legally incorrect, but whether the Secretary of State acted irrationally or erred in law in accepting them. It is difficult to see how the Secretary of State could have acted irrationally or unlawfully unless the Chief Inspector made the same errors; but it does not follow that because the Chief Inspector erred in those ways, so did the Home Secretary. The Chief Inspector's report is detailed and persuasive; he is, I assume, appropriately qualified; and it is therefore not easy for a claimant to show that it was perverse of the Home Secretary to accept his conclusions.
  39. Turning to ground 2, the Claimant contends that the level of staffing of the care of animals at Cambridge was inadequate. The level of staffing is relevant to the duty imposed by section 6(6) of the Act and, has been seen, to the severity limit applicable to a procedure, since a high level of care staffing may prevent or minimise the suffering of animals (e.g. by the prompt application of analgesics) and thereby justify a lower level of severity. In addition, section 10 of the Act requires the Secretary of State to include in licences conditions that, the Claimant contends, require constant attendance of staff: see, in particular, the requirement of immediate killing specified in section 10(2)(b). There were only 3 staff responsible for the bulk of the feeding, care and checking of over 400 marmosets. There was no systematic night-time monitoring of their condition. Monitoring at weekends and during public holidays was also minimal. As a result, some animals were left without observation for a period of 15 or 16 hours shortly after their operation. The absence of staff, it is said, made it impossible for the Home Secretary to be satisfied that the licensees would be able to "terminate the protocol before the animal shows more than moderate adverse effects", and so bring themselves within the proviso in the moderate severity limit.
  40. The Chief Inspector stated that his review "has not identified any significant morbidity or any instance of mortality that would have been avoided by more intensive monitoring and care schedules". He referred to the specific case of an animal named "Agar" that had died between observations. He stated that he had considered that case in particular detail, and concluded that "all appropriate measures had been taken to minimise the suffering experienced by the animal".
  41. The Claimant contends that the error of the Home Secretary shown by his acceptance of the Chief Inspector's conclusion on the adequacy of arrangements for the care of animals at Cambridge indicates that a similar error is being made in relation to all licences granted under the Act.
  42. Grounds 1 and 2 relate to historical facts, now some 3 years or more old, and are heavily fact dependent. Expert evidence would be required to determine the issues raised.
  43. Both grounds raise the question of delay in applying for judicial review. The Claim Form seeks judicial review of the Home Secretary's decisions in the letters of 1 October and 19 November 2003. However, in substance, the decision sought to be challenged under these grounds is that of the responsible Minister, in his letter of 10 February 2003, to accept the conclusions of the Chief Inspector in his report. The later correspondence went to question and to confirm that decision. There has therefore been considerable delay on the part of the Claimant, and the grant of permission in relation to these grounds requires a substantial extension of the time laid down by CPR Part 54. The correspondence following 10 February 2003 does not, in my judgment, of itself justify that delay, and I did not understand Mr Drabble QC to suggest otherwise.
  44. Furthermore, to the extent that the Claimant submits that the severity limits and bands applied to the Cambridge licences were inappropriate, the ground of complaint arose when the licences were granted. The Claimant was aware of the severity limits and bands of the licences at the latest by February 2002, since they are referred to in its report.
  45. With regard to ground 2, the Claimant's letter of 8 May 2003 raised an issue as to the care of animals under a licence that is not necessarily fact dependent. Question 18 of that letter asked the Minister "whether you accept that an establishment designated under section 6 of the 1986 Act should at all times have appropriately trained staff on site, so that the duties under section 6(6) and 10(2) can be fulfilled, at least in relation to welfare problems which are the foreseeable consequences of an animal's use in the regulated procedures in question". The Minister's answer, in her letter of 1 October 2003, was: "No. It would not be reasonable to insist upon trained animal care staff being on site at all times. ..."
  46. I do not think it arguable that section 6 imposes on a licensee a duty to have appropriately trained staff on site at all times. No such absolute duty is implicit in its terms. The issue under section 10(2)(b) is more meritorious. It is however difficult to accept that Parliament could have envisaged that each protected animal would be under constant supervision. Indeed, the qualification in the Claimant's question, cited in the previous paragraph, indicates that it too sees difficulty in construing that provision in absolute terms. In the end, the question will be whether the arrangements made by the licensee are sufficient to comply with the condition imposed. So far as Cambridge is concerned, the answer of the Chief Inspector was clear, as was the basis for his conclusion.
  47. In my judgment, it is not appropriate to grant permission in respect of these grounds of claim. My reasons are set out in the following paragraphs.
  48. The inference I draw from the Claimant's delay is that it first sought to achieve its objects in relation to the terms of the Cambridge licences and the research carried out there by political means, by seeking to obtain an independent inquiry and then by seeking to persuade the Secretary of State to reject the Inspector's conclusions. Even after the Minister had stated that he accepted the Inspector's conclusions, over 11 months passed before these proceedings were commenced. I also refer to the points made above in relation to delay. The delay is not excusable.
  49. Secondly, in relation to ground 1, although I accept that the correct application of severity limits and bands is of importance, that importance is diminished by the considerations referred to at paragraph 23 and 24 above.
  50. Thirdly, to a significant extent the issues raised relate to historical facts. It is also relevant that the issues relate principally to questions of expert assessment, and that the facts on which the assessments were made may themselves be at least partly in dispute.
  51. In addition, there is the inherent difficulty in showing that the acceptance by the Home Secretary of the substantial and well-reasoned report of the Chief Inspector was irrational. I cannot think that the Home Secretary is required to review all of the evidence placed before him and that available to the Chief Inspector before deciding whether or not to accept the conclusions of the report. The Chief Inspector set out in paragraph 5.2 to 5.8 of his report his methodology and the evidence he obtained for the purposes of his report. His methodology has not been criticised.
  52. Furthermore, it is not clear to me that a finding that the decision of the Minister acted unreasonably in his assessment of those facts would be easily applied to different facts.
  53. I appreciate that the confidentiality attaching to animal experimentation (confidentiality, I might say, made all the more necessary by the actions of extremist opponents of such experimentation) may mean that it is unrealistic to consider that the Claimant will have another opportunity to challenge the policies and practices of the Inspectorate and the Home Secretary. On the other hand, that consideration made it more necessary that any judicial review proceedings should be commenced promptly.
  54. Lastly, the Home Secretary contends that a substantive hearing would involve expert evidence and factual evidence. The expert evidence would be disputed: there is already a clear dispute as between the Chief Inspector and the Claimant's expert witnesses on the documents before me. I have taken into account the cost and time involved in that hearing.
  55. Ground 3

  56. Ground 3 of the claim seeks a declaration that the death of an animal is an "adverse effect" which the Home Secretary is under a duty, under section 5(4) of the Act, to weigh against the likely benefit of a programme the licensing of which is being considered. The Home Secretary accepts that any likely suffering of an animal is an adverse effect; he does not accept that death, as such (i.e., in the absence of any pain or suffering) is an adverse effect within the statutory meaning. The issue is whether death, of itself, is such an effect.
  57. This is a question of the correct construction of the Act. Mr Swift pointed out that the Claimant's construction is difficult to reconcile with the provisions of section 5(5)(b) and section 2(7). It is nonetheless arguable, and the time available on the application for permission did not permit counsel to deploy all their arguments for me to reach a clear conclusion. The decision of the Home Secretary in question was set out in the Minister's letter of 19 November 2003, in which he stated that death is "not normally" regarded as an adverse effect. This ground of claim is not therefore subject to the same delay as that applicable to grounds 1 and 2.
  58. A decision that death of itself is an adverse effect may require reconsideration of the guidance published by the Home Secretary under section 21. Given that no (or very little) evidence needs to be considered in order to determine the issue raised under this ground, the brevity of the required hearing, and the fact that it is of continuing relevance, I consider it appropriate to grant permission under this head.
  59. Ground 4

  60. As a result of the amendment of its Claim Form, the Claimant's claim under this ground is restricted to its contention that the repetitive testing of marmosets placed in a small perspex box is a regulated procedure within the meaning of section 2 of the Act, on the basis that it is an "experimental or other scientific procedure applied to the animal which may have the effect of causing that animal pain, suffering, distress or lasting harm". In addition, it is submitted that such testing is an "adverse effect" within the meaning of section 5 (4).
  61. A Cambridge University document "Notes on shaping animals" indicates that an animal may become miserable or angry when subjected to such testing. The symptoms of anger are described as "Screaming, trying to get out of the box, defecating". It would seem to the inexpert mind that such symptoms are indications of distress within the meaning of section 2.
  62. This issue was not clearly raised by the Claimant before the Chief Inspector reported. Distress allegedly caused to marmosets during training was briefly referred to in paragraphs 62 and 63. The Chief Inspector considered the allegation in paragraphs 5.B.33 to 5.B.35 of his report. He stated that the standard test methods used did not cause pain, suffering, distress or lasting harm and were therefore not regulated procedures; and that he had observed the testing programmes during his review and they were not seen to stress or to distress the animals. No point was raised on his conclusion in the Claimant's letters of 9 May and 21 October 2003. The consequence is that the Secretary of State has made no relevant decision on this issue, other than his general acceptance of the Chief Inspector's conclusions.
  63. This ground for judicial review is fact specific (Did the training at Cambridge cause distress?). I do not see how the Secretary of State can be criticised for accepting the reasoned statements of the Chief Inspector referred to in the previous paragraph. That acceptance was not arguably irrational or unreasonable, and discloses no arguable error of law. In addition, there has been delay in seeking judicial review under this ground, which arose from the letter of 10 February 2003.
  64. In any event, the Secretary of State accepts that if testing in the course of an experimental or other scientific procedure does cause distress to a protected animal, it is a regulated procedure requiring a licence under the Act. This emphasises the fact-dependent nature of this ground of relief.
  65. Permission to apply for judicial review under this ground will be refused.
  66. Ground 5

  67. The issue under this ground is whether the Guidance Note published by the Home Office on 13 November 2003 entitled "Water and Food Restriction for Scientific Purposes" is "guidance with respect to the manner in which (the Home Secretary) proposes to exercise his power to grant licences and certificates under (the) Act and with respect to the conditions which she proposes to include in such licences and certificates" within the meaning of section 21 (1), or (raised by the Claimant by amendment of its Claim Form) a code of practice as to the care of protected animals and their use the regulated procedures within the meaning of section 21 (2). If so, he was under a duty under subsection 3 to consult the APC before publishing that document and a duty under subsection 5 to lay a copy before Parliament. It is common ground that he did not do either. The Home Secretary contends that the Guidance Note is neither guidance nor or a code of practice within the meaning of section 21.
  68. The Guidance Note states that the Home Secretary considers that project licence authority is required for water or food restrictions in specified circumstances: see the bullet points on the first page and Notes 1 and 4. The Guidance does not state in what circumstances a project licence will be granted or refused, or what its terms might be. In my judgment, it is not arguable that this is "guidance" within the meaning of section 21 (1). It relates not to the manner of exercise of the power, but the ambit of the power. Nor is that part of the Guidance a Code of Practice: it does not advise on practice, but on the circumstances in which a licence is required.
  69. Similarly, that part of the Guidance Note advising licensees as to the records they should keep is not guidance within the meaning of section 21(1).
  70. It remains to consider whether the Guidance Note constitutes a code of conduct within the meaning of the Act. A code may be such even if it deals only one aspect of the conduct of a licensee. Section 21 envisages that there may be more than one code of practice.
  71. I accept the submission of the Home Secretary that guidance that only repeats or draws attention to a duly published code of conduct is not a code of conduct within the meaning of section 21. Parliament would not have envisaged applying the requirements of that section to such a document.
  72. The Claimant contends that the Note alters paragraphs 3.32 and 3.33 of the Code. I accept that its contents, at least arguably, go beyond those paragraphs. On this basis, it is arguable that the Guidance Note, in recommending certain practice, constitutes a code of practice.
  73. This Ground raises issues of the interpretation of the Act and of the document in question. No evidence is required other than the Guidance Note and any other relevant guidance or code of practice published by the Home Secretary.
  74. Permission to apply for judicial review under this ground will be granted.
  75. Ground 6

  76. This ground for judicial review concerns stock animals. The Claimant contends that the Home Secretary is under a duty to take into account the welfare of (or rather the harm suffered or that will be suffered by) stock animals when exercising his powers under section 5 concerning the grant or refusal of a project licence and the terms of any licence granted. By way of example, marmosets in the wild rarely give birth to triplets. When bred in captivity, triplets are more common. One of the triplets commonly fails to thrive, in which event the policy at Cambridge was humanely to kill it. The Claimant contends that such consequences of the use of marmosets for experimental purposes should be taken into account, notwithstanding that the animals in question will not be the subject of experimentation.
  77. The breeding of primates and certain other animals for use in regulated procedures requires a certificate issued by the Home Secretary under section 7 of the Act. The use of animals caught in the wild is substantially restricted by section 10(3)(d), and of primates also by paragraph (b) of that subsection.
  78. The Claimant does not point to any case in which the issue whether the welfare of stock animals has to be taken into account in the grant of licences under section 5 has arisen. The issue is therefore entirely one of principle, described by the Home Secretary as hypothetical.
  79. The Claimant's difficulty is that it seeks to establish a duty on the part of the Secretary of State to take into account the suffering and death of stock animals. Even assuming that it is arguable that section 5 is not a comprehensive statement of the matters to which he is to have regard in exercising his power to grant or to refuse a licence and its terms, the Claimant's contention is quite inconsistent with the terms of subsections 4 and 5, which clearly refer only to the animals which are to be subject to the proposed procedures. In my judgment, to imply a duty to have regard to other animals would be impermissible judicial legislation. Moreover, the welfare of stock animals is addressed by the requirements of certificates granted under sections 6 and 7, and the conditions that may be attached to them (as to which see Appendices B and C to the Guidance on the Operation of the Act), which have to be considered in the light of the prohibitions required (unless the Secretary of State considers an exception is justified) by section 10(3).
  80. In my judgment, this ground is not arguable. Permission to apply for judicial review on this ground will be refused.


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