The Campaign To End All Animal Experiments (BUAV), R (on the application of) v Secretary of State for the Home Department

Permission for judicial review depends on whether the proposed grounds disclose an arguable legal error, irrationality or statutory misinterpretation. Under the Animals (Scientific Procedures) Act 1986, severity limits are administrative shorthand and do not replace assessment of the detailed procedures and likely welfare effects. The Act does not impose an absolute duty to keep trained staff on site at all times. Whether conduct is a regulated procedure is fact-sensitive. Guidance under section 21 concerns the manner of exercising licensing powers or constitutes a code of practice; a document addressing the ambit of licensing power is not necessarily guidance within section 21(1). Section 5(4) refers to the animals subject to the proposed procedures and does not require the Secretary of State to weigh harm to stock animals.

The claimant, an anti-vivisection organisation, sought judicial review of decisions and policy concerning licensing under the Animals (Scientific Procedures) Act 1986, following an investigation into marmoset research at Cambridge University and a review by the Chief Inspector.

Six grounds challenged the classification and monitoring of procedures, the treatment of animal death as an adverse effect, repetitive testing, a Home Office note on water and food restriction, and the treatment of stock animals when project licences were considered. The court determined whether each ground was arguable and whether delay, factual complexity or statutory construction affected permission.

1. Permission granted in part. Permission was granted on ground 3, concerning whether death in itself is an adverse effect under section 5(4), and on ground 5, concerning whether the Home Office note on water and food restriction was guidance or a code of practice under section 21. Permission was refused on grounds 1, 2, 4 and 6.
2. Severity limits and project severity bands are established by guidance under section 21. They are administrative shorthand. The licensing decision under section 5(4) must focus on the detailed description of the procedures, expected adverse effects, mitigation and humane endpoints. Major surgery does not necessarily require a substantial severity limit, and subsequent death does not by itself establish that the original classification was unlawful.
3. The Act does not impose an absolute duty under section 6 to have appropriately trained staff on site at all times. Section 10(2)(b) raises a more arguable question, but compliance depends on whether the arrangements made by the licensee are sufficient to meet the relevant licence condition. The court also held that it was difficult to challenge the Secretary of State’s acceptance of a detailed and persuasive Chief Inspector’s report as irrational.
4. Whether repetitive testing caused distress, and therefore constituted a regulated procedure under section 2, was fact-specific. The Secretary of State’s acceptance of the Chief Inspector’s reasoned conclusion disclosed no arguable error of law or irrationality. It was accepted, however, that testing causing distress would require a licence.
5. The section 21(1) concept of guidance concerns the manner in which licensing powers are exercised and the conditions proposed for licences. A document addressing when a project licence is required, rather than how the power will be exercised, is not guidance within that provision. A document advising on record-keeping is likewise outside it. A document may nevertheless be a code of practice if it recommends practice going beyond an existing code; a document merely repeating or drawing attention to a duly published code is not itself such a code.
6. It was arguable that death alone might be an adverse effect under section 5(4), requiring consideration of the relationship with sections 5(5)(b) and 2(7), and potentially reconsideration of guidance under section 21. The issue was suitable for a substantive hearing because it was principally one of statutory construction and of continuing relevance.
7. The suggested duty to consider harm to stock animals when exercising section 5 powers was not arguable. Sections 5(4) and 5(5) refer to animals subject to the proposed procedures. Welfare of stock animals is addressed through certificates and related conditions under sections 6 and 7, together with the restrictions in section 10(3). Imposing an additional duty under section 5 would amount to impermissible judicial legislation.