Ombudsman cruelty coverup explained
I’m currently finalising the manuscript for my new book, due to be published by Palgrave later this year, which will provide an unprecedented insight into animal experimentation and the myth of Britain’s ‘strict regulation’. It comes on the back of Uncaged’s publication of the leaked Imutran and Home Office documents which, among other things, showed clear breaches of ‘moderate’ severity limits when monkeys were ‘found dead’ or ‘in a collapsed state’.
Animals used in ‘moderate’ severity experiments are supposed to be put down before they suffer systemic illness or actually die as direct result of the ongoing experiment. Therefore, one would hope that researchers and the Home Office would admit that if an animal is ‘found dead’ because of the illness caused by the experiment, then their suffering exceeded the moderate severity limit. That’s if the regulatory system is meant to have any meaning at all.
Unfortunately, it turns out that such hope rests on the false assumption that the Home Office and the animal research industry are reasonably honest and law-abiding. Perhaps even more disturbing is the fact that bodies – such as the Ombudsman – who are meant to hold the Government to account, seem either too corrupt or too cowardly to do the right thing.
In December 2006, following a three year investigation hampered by staff absences* and, as explained below, an apparent difficulty in understanding the regulatory system, the Parliamentary and Health Service Ombudsman (PHSO or ‘Ombudsman’) laid before Parliament a final report that dismissed our complaint of maladministration in respect of the Home Office’s regulation of Imutran’s research. The term ‘whitewash’ doesn’t really do justice to the Ombudsman’s ruthless determination to give the Home Office a clean bill of health and discredit myself and Uncaged.
Uncaged’s complaint had argued that where procedures were allowed to continue until the point where the animals were found dead, instead of the animals being killed at or before the specified endpoint, then the endpoint and its corresponding moderate severity limit categorisation had been breached. In response, the Ombudsman stated:
‘In considering the explanations given by the Home Office, the Ombudsman’s staff have noted that death, in itself, does not appear to constitute a breach of the moderate severity limit within ‘The Guidance on the Operation of the Animals (Scientific Procedures) Act 1986’. This view is supported by the ‘Report of the cost-benefit working group of the APC’ which considered ‘The weight assigned to “death of an animal” in itself (i.e. in absence of suffering)’. Within that heading they weighed various arguments put forward on whether a humane death (that is one without suffering) should be included in the cost/benefit assessment. A number of indirect ‘harms’ were put forward, which could be caused by the death of an animal, and that might be considered within the cost/benefit assessment. The report observed, however, that ‘whilst these potential harms are important and should be considered within the cost-benefit assessment, they are not relevant to the question of whether death in itself is a harm’ (paragraph 13).
Where do you start? The basic problem was that the Ombudsman’s reasoning fundamentally misconstrued the complaint and the role of endpoints in limiting suffering. Uncaged’s complaint was not based on the argument that ‘death, in itself… constitute[s] a breach of the moderate severity limit’. Instead, the complaint was based on the fact that animals were allowed to suffer up until the point of death, i.e. that death was the de facto endpoint in some instances. Uncaged did not assert that ‘death in itself’ counted as harm in this regulatory context. On the contrary, we argued that the animals should have been killed earlier in the procedure in order to comply with the moderate severity limit. In reviewing their decision, the Ombudsman dismissed these submissions from Uncaged, claiming that they did not add to previous complaint submissions (despite the fact they were novel arguments in response the Ombudsman’s final report).
Concerns about the adequacy of the PHSO investigation were intensified by subsequent comments by the-then Ombudsman Ann Abraham to the House of Commons Public Administration Select Committee in February 2011:
We might [investigate], if there was a wider public interest. I am trying to think of an example that would help you, and most of the examples I can think of are where the wider public interest is in the possibility of the Ombudsman saying there was not maladministration. One of the cases we looked at some years ago was a complaint, again referred by many MPs and many complainants, about the regulation of the animal experimentation industry, and concerns that the regulation was not being carried out properly. There was a lot of outrage, a lot of concern, and a lot of distress about all this, and some very unhappy people. We did a very thorough investigation and we were satisfied that actually everything was being done reasonably, in accordance with the requirements of the regulatory regime. We produced a public report to say that. Now actually the wider public interest was in the Government Department concerned being able to say “The Ombudsman has looked at this, and this is being done properly.” So there are lots of circumstances in which we would say that it is worth us doing this.
However, given the basic error at the heart of the Ombudsman’s exoneration of the Home Office and their repeated refusal to take Uncaged’s submissions seriously, these comments raise questions regarding at what point in the investigation did the Ombudsman decide there was a public interest in maintaining confidence in public institutions?
Relevant to this concern is the Ombudsman’s position on the issue of severity limit breaches in their draft decision letter issued on 4 May 2005, which differs markedly from their final report:
7. When considering complaints concerning decisions that are reliant on professional judgements, The Ombudsman would not normally seek to substitute her judgment for that of relevant expert. You will appreciate that there are many such decisions within this case, and this confines our legitimate interest to the overall process governing this area.
13. Whilst there would appear to be an element of subjectivity involved in the assessment of severity decisions about what severity limit to apply to the various procedures were a matter for the Inspectorate’s professional judgement and expertise. I do not see any basis upon which this Office could seek to question their assessment of the position (paragraph 7). In the light of that, and as I can see no evidence of administrative fault by the Home Office in their handling of this matter, I can see no grounds for the Ombudsman’s further intervention in the matter.
It is hard to reconcile the PHSO’s original decision to sidestep the issue of severity limits because it was deemed beyond their competency, with the subsequent assertion that they ‘did a very thorough investigation’ and were able to legitimately claim ‘The Ombudsman has looked at this and this is being done properly’. When considered in conjunction with the Ombudsman’s misrepresentation of the difference between the harm caused by ‘death-in–itself’ compared with ‘death–as-an-endpoint’ in the final report, it is hard to avoid the conclusion that the Ombudsman’s motivation for exonerating the Home Office had little to do with the facts of the case.
Rather it appears to confirm in stark terms the infallibility syndrome infecting the Westminster Village and the tribal loyalty exhibited by elite groups against justice and the interests of ordinary people.
*The PHSO’s draft decision letter dated 4 May 2005 stated: ‘[T]he investigation of the complaint has been interrupted on more than one occasion by illness, which has meant that the case has had to be considered by several different officers, which has led to significant delays’ (paragraph 2).