JUDGMENT
R (on the application of Association of Independent
Meat Suppliers and another) (Appellants) v Food
Standards Agency (Respondent)
before
Lady Hale, President
Lord Hodge
Lady Black
Lord Lloyd-Jones
Lord Sales
JUDGMENT GIVEN ON
24 July 2019
Heard on 5 March 2019
Appellants Respondent
Stephen Hockman QC Sir Alan Dashwood QC
David Hercock Adam Heppinstall
Jonathan Lewis
(Instructed by SAS
Daniels LLP (Stockport)
)
(Instructed by Foods
Standards Agency
)
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LADY HALE AND LORD SALES: (with whom Lord Hodge, Lady Black and
Lord Lloyd-Jones agree)
The Facts
1. On 11 September 2014, the Cleveland Meat Company Ltd (CMC) bought a
live bull at the Darlington Farmers’ Auction Mart for £1,361.20. The bull was passed
fit for slaughter by the Official Veterinarian (OV) stationed at CMC’s
slaughterhouse. It was assigned a kill number of 77 and slaughtered. A post mortem
inspection of both carcass and offal was carried out by a Meat Hygiene Inspector
(MHI), who identified three abscesses in the offal. The offal was not retained. Later
that day, the OV inspected the carcass and, after discussion with the MHI, declared
the meat unfit for human consumption, because pyaemia was suspected.
Accordingly, the carcass did not acquire a “health mark” certifying that it was fit for
human consumption. The consequence of this was that it would have been a criminal
offence for CMC to seek to sell the carcass (under regulation 19 of the Food Safety
and Hygiene (England) Regulations 2013 (“the Food Hygiene Regulations”)).
2. CMC took the advice of another veterinary surgeon and challenged the OV’s
opinion. It claimed that, in the event of a dispute and its refusal to surrender the
carcass voluntarily, the OV would have to seize the carcass under section 9 of the
Food Safety Act 1990 (“the 1990 Act”) and take it before a Justice of the Peace to
determine whether or not it ought to be condemned. The Food Standards Agency
(FSA) replied that there was no need for it to use such a procedure. Having been
declared unfit for human consumption by the OV, the carcass should be disposed of
as an animal by-product.
3. On 23 September 2014, the OV, acting for the FSA, served on CMC a notice
for the disposal of the carcass as an animal by-product (the disposal notice) (under
regulation 25(2)(a) of the Animal By-Products (Enforcement) (England)
Regulations 2013 (“the Animal By-Products Regulations”) and Regulation (EC) No
1069/2009). The disposal notice informed CMC that failure to comply with the
notice could result in the Authorised Person under the Regulations arranging for
compliance with it at CMC’s expense and that it was an offence to obstruct an
Authorised Person in carrying out the requirements of the notice. The disposal notice
also stated:
“You may have a right of appeal against my decision by way
of judicial review. An application for such an appeal should be
made promptly and, in any event, generally within three
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months from the date when the ground for the application first
arose. If you wish to appeal you are advised to consult a
solicitor immediately.”
4. These judicial review proceedings are brought by the Association of
Independent Meat Suppliers, a trade association acting on behalf of some 150
slaughterhouses, and CMC (the claimant appellants) to challenge the FSA’s
assertion that it was unnecessary for it to use the procedure set out in section 9 of
the 1990 Act and to claim in the alternative that it is incumbent on the United
Kingdom to provide some means for challenging the decisions of an OV in such
cases. They failed in the High Court and Court of Appeal and now appeal to this
Court. There are three main issues in the proceedings.
The issues in the case
5. The first revolves around an issue of domestic law. Is the procedure contained
in section 9 of the 1990 Act available in these circumstances and does it have to be
used by the OV or the FSA, if the carcass owner refuses to surrender the carcass
voluntarily, so as to afford the carcass owner a means of challenging decisions of
the OV with which it disagrees? The Food Hygiene Regulations provide that section
9 is to apply for the purpose of those Regulations. Under section 9, if it appears to
an authorised officer of an enforcement authority such as the FSA that food intended
for human consumption “fails to comply with food safety requirements”, he may
seize the food and remove it in order to have it dealt with by a Justice of the Peace
(who may be either a lay magistrate or a legally qualified District Judge, but who
will be local to the slaughterhouse and readily accessible at all hours). If it appears
to the Justice of the Peace, on the basis of such evidence as he considers appropriate,
that the food “fails to comply with food safety requirements”, he shall condemn it
and order it to be destroyed at the owner’s expense. If he refuses to condemn it, the
relevant enforcement authority must compensate the owner for any depreciation in
its value resulting from the officer’s action. Under section 8(2), food fails to comply
with food safety requirements if it is unsafe within the meaning of article 14 of
Regulation (EC) No 178/2002: ie injurious to health or unfit for human consumption
(see para 12 below).
6. The procedure in section 9 of the 1990 Act is not framed in terms of an appeal
from the OV’s decision. It sets out a procedure whereby an officer of a food authority
or an enforcement authority can refer the question of destruction of a carcass to a
Justice of the Peace for decision. Normally, we are told, the owner accepts the OV’s
decision that an animal is not fit for human consumption and voluntarily surrenders
it. But if the owner does not, the claimant appellants say that this procedure provides
both (i) a way in which the OV or the FSA can take enforcement action consequent
upon the OV’s decision and (ii) a means whereby the owner can subject that decision
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to judicial scrutiny and ask the Justice of the Peace to decide whether or not the
carcass did in fact comply with the food safety requirements. They accept that the
Justice of the Peace cannot order the OV to apply a health mark. However, they
argue that the OV can be expected to respect the decision and apply a health mark
accordingly. Further, compensation may be payable under the 1990 Act if the Justice
of the Peace refuses to condemn the carcass. In the claimant appellants’ view, this
procedure has been part of the United Kingdom’s food safety regime since the 19th
century, and continues to operate under the European Union’s food safety regime
contained in the suite of Regulations coming into force in 2006.
7. The FSA agrees that the procedure under section 9 of the 1990 Act would be
available to it as one possible means of enforcement if the operator of a
slaughterhouse attempted to introduce into the food chain an animal carcass which
had not been given a health mark by an OV. However, it does not accept that this
procedure would be suitable, still less obligatory, to resolve a dispute as to whether
the carcass is or is not fit for human consumption. A Justice of the Peace has no
power to order an OV to apply a health mark and, moreover, the FSA says that he
would have no power under section 9 to do anything other than condemn for disposal
a carcass bearing no such mark.
8. Although not raised by the FSA in argument, the Court observes that it would
be open to the operator of a slaughterhouse such as CMS to bring judicial review
proceedings in the High Court to challenge the OV’s decision that the meat of a
carcass was unfit for human consumption, and thus to deny a health mark, or to
quash a disposal notice. The High Court may quash a decision of an OV on any
ground which makes the decision unlawful, including if he acts for an improper
purpose, fails to apply the correct legal test or if he reaches a decision which is
irrational or has no sufficient evidential basis. The High Court does occasionally
hear oral evidence and make mandatory orders, and has power to award
compensation for breaches of the rights under the European Convention on Human
Rights (ECHR). However, contrary to what was said in the notice quoted in para 3
above, judicial review is not an appeal on the merits of the decision.
9. The main reason advanced by the FSA why the section 9 procedure is not
also applicable is that such a procedure, operated in the way the claimant appellants
say that it can be operated, in effect as an appeal against the merits of the OV’s
decision, would be incompatible with the regime contained in the suite of EU food
safety Regulations which came into force in the United Kingdom in 2006.
10. Hence, the second issue is whether use of the procedure in section 9 of the
1990 Act is compatible with the food safety regime laid down by European Union
law, specifically by Regulation (EC) No 852/2004 on the hygiene of foodstuffs;
Regulation (EC) No 853/2004 laying down specific hygiene rules for food of animal
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origin; Regulation (EC) No 854/2004 laying down specific rules for the organisation
of official controls on products of animal origin intended for human consumption;
Regulation (EC) No 882/2004 on official controls performed to ensure the
verification of compliance with feed and food law, animal health and animal welfare
rules; and Regulation (EC) No 1069/2009 on health rules as regards animal byproducts. Also relevant is the prior Regulation (EC) No 178/2002 laying down the
general principles and requirements of food law.
11. The third issue is whether Regulation (EC) No 882/2004 mandates an appeal
procedure and if so whether such an appeal should be capable of challenging the
OV’s decision on the full factual merits or whether the more limited scope of
challenge involved in judicial review of the OV’s decision and of a disposal notice
as referred to above issufficient to comply with the requirements of Regulation (EC)
No 882/2004.
Relevant European Union Law
12. Under article 2 of Regulation (EC) No 178/2002, “‘food’ means any
substance or product … intended to be, or reasonably expected to be ingested by
humans”. It is common ground between the parties that carcass 77 was “food” when
it was slaughtered and remained so after the OV formed the opinion that it was unfit
for human consumption and declared it as such. Article 14 of Regulation (EC) No
178/2002 provides that food shall not be placed on the market if it is unsafe. Food
is deemed unsafe if it is considered to be (a) injurious to health, (b) unfit for human
consumption. Article 5.1 of Regulation (EC) No 853/2004 provides that food
business operators (FBOs) such as slaughterhouses shall not place on the market a
product of animal origin unless it has a health mark applied in accordance with
Regulation (EC) No 854/2004 (or an identification mark if a health mark is not
required by the latter Regulation).
13. Regulation (EC) No 854/2004 lays down specific rules for the organisation
of official controls on products of animal origin (article 1.1). The application of the
official controls which it requires is without prejudice to the primary legal
responsibility of FBOs to ensure food safety under Regulation (EC) No 178/2002
(article 1.3). The controls are of several types. Article 4, for example, deals with
official controls to verify an FBO’s general compliance with the Regulations,
including detailed audits of good hygiene practices.
14. Article 5 requires member states to ensure that official controls with respect
to fresh meat take place in accordance with Annex I. Under article 5.1, the OV is to
carry out inspection tasks in, inter alia, slaughterhouses in accordance with the
general requirements of section I, Chapter II of Annex I and the specific
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requirements of section IV. Under article 5.2, the health marking of domestic
ungulates, such as cattle, is to be carried out in slaughterhouses in accordance with
section I, Chapter III of Annex I; the criterion for applying health marks is stated
thus:
“Health marks shall be applied by, or under the responsibility
of, the official veterinarian when official controls have not
identified any deficiencies that would make the meat unfit for
human consumption.”
15. Annex I lays down detailed rules about ante-mortem and post-mortem
inspections, how they are to be done and by whom, the application of health marks
and the communication of results. Chapter IV of section III lays down detailed
requirements for the qualifications and skills of Official Veterinarians and their
auxiliaries (such as MHIs).
16. Regulation (EC) No 854/2004 does not define “official controls” nor does it
lay down any specific enforcement measures or sanctions for non-compliance with
the controls which it mandates. Article 1.1a provides that it applies in addition to
Regulation (EC) No 882/2004 and article 2.2(b)(a) provides that the definitions in
Regulation (EC) No 882/2004 shall apply as appropriate. Regulation (EC) No
882/2004 lays down general rules for the performance of official controls for a
variety of purposes, including preventing risks to humans and animals and
protecting consumer interests in the feed and food trade (article 1.1). It is “without
prejudice to specific Community provisions concerning official controls” (article
1.3). “‘Official control’ means any form of control that the competent authority or
the Community performs for the verification of compliance with feed and food law,
animal health and animal welfare rules” (article 2.1). “‘Non-compliance’ means
non-compliance with feed or food law, and with the rules for the protection of animal
health and welfare” (article 2.10).
17. Recitals (41) and (42) to Regulation (EC) No 882/2004 state, inter alia, that
breaches of food law may constitute a threat to human health and therefore should
be subject to effective, dissuasive and proportionate measures at national level,
including administrative action by competent authorities in the member states.
Recital (43) states:
“Operators should have a right to appeal against the decisions
taken by the competent authority as a result of the official
controls, and be informed of such a right.”
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The Court notes that in the French language version of the Regulation the relevant
phrase used is “Les exploitants devraient avoir un droit de recours …” and in the
German language version “Unternehmer sollten … Rechtsmittel einlegen können
…”.
18. Title VII of Regulation (EC) No 882/2004 deals with enforcement measures
and Chapter I is concerned with national enforcement measures. Article 54.1
requires the competent authority, when it identifies non-compliance, to take action
to ensure that the operator remedies the situation. In deciding what action to take it
“shall take account of the nature of the non-compliance and that operator’s past
record with regard to non-compliance”. Article 54.2 gives a non-exhaustive list of
the measures which must be available where appropriate. These include (b) the
restriction or prohibition of the placing on the market of food; (c) if necessary,
ordering the recall, withdrawal and/or destruction of food; and (h) any other measure
the competent authority deems appropriate. Article 54.3 requires the competent
authority to provide the operator concerned with written notification of its decision
and the reasons for it and “information on rights of appeal against such decisions
and on the applicable procedure and time limits”. The Court notes that in the French
language version this text appears as “des informations sur ses droits de recours
contre de telles decisions, ainsi que sur la procedure et les délais applicables” and in
the German language version the phrase “sein Widerspruchsrecht” is used.
19. Article 55 requires member states to lay down the rules on sanctions
applicable to infringements of feed and food law and to take all measures necessary
to ensure that they are implemented. “The sanctions provided for must be effective,
proportionate and dissuasive.”
The parties’ arguments
20. The claimant appellants argue that the procedure in section 9 of the 1990 Act
is applicable in cases such as this and is not incompatible with the regime laid down
by the EU Regulations; indeed it – or something like it – is contemplated by the terms
of article 54 of Regulation (EC) No 882/2004. In summary, they assert that:
(1) The section 9 procedure was applied during the very similar regime
adopted pursuant to the EU Directives before the coming into force of the
suite of Regulations referred to above. There is no evidence that this caused
any practical difficulties. If it was not thought inconsistent with that regime,
there is no reason to think it inconsistent with the current regime. Indeed, in
2006, when the Regulations came into force, the Meat Hygiene Service
Manual of Official Controls stated (and continued to state until shortly before
these proceedings began) that where the OV was not satisfied that the meat
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was fit for human consumption and voluntary surrender was not forthcoming,
the OV must seize the food under section 9 and take it before a Justice of the
Peace for it to be condemned. At the very least, this is an indication of past
practice under the very similar regime which preceded the current EU
Regulations and of what the FSA, as competent authority, initially thought
the position to be under the Regulations.
(2) The official controls in Regulation (EC) No 854/2004 are in addition
to the more general provisions in Regulation (EC) No 882/2004. They are
specific to food of animal origin. But they contain nothing about enforcement
and sanctions. Thus it is not surprising that they do not provide for a right of
appeal against the decisions of the OV and competent authority. Enforcement
and sanctions are provided for in Regulation (EC) No 882/2004. Regulation
(EC) No 854/2004 is intended to work in combination with Regulation (EC)
No 882/2004. Recital (43) to Regulation (EC) No 882/2004 indicates that a
right of appeal is required in a case such as this. Articles 54 and 55 are
applicable to all kinds of non-compliance with Regulation (EC) No
854/2004, including non-compliance with article 5 in individual cases as well
as the more general non-compliance dealt with by article 4. The references to
prohibiting placing on the market and ordering destruction in article 54.2 are
clearly apt to deal with non-compliance under article 5. Article 54.3 should
apply to action to deal with all kinds of non-compliance. These articles, read
together with recital (43) mandate a right of appeal against the OV’s decision.
(3) There is nothing in any of the Regulations to prohibit a procedure such
as that laid down in section 9. This not only provides a means whereby the
competent authority can enforce the requirements of Regulation (EC) No
854/2004 in relation to non-compliance but also provides the operator with a
means of challenging the decision of the OV that a carcass is not fit for human
consumption on its merits. The Justice of the Peace can (and should) hear
expert evidence to determine the matter. While only the OV can apply the
health mark, on the claimant appellants’ interpretation of section 9 the Justice
of the Peace can make a ruling which may result in an award of compensation
if the mark is wrongly withheld.
(4) At the point when the OV inspects the meat and forms the opinion that
it is unfit for human consumption and declares it as such, the carcass is still
“food” within the meaning of the above Regulations. It has not become an
“animal by-product” within the meaning of Regulation (EC) No 1069/2009,
laying down health rules as regards animal by-products. Animal by-products
are defined as “entire bodies or parts of animals, products of animal origin or
other products obtained from animals, which are not intended for human
consumption” (article 3.1). Until the process of condemnation is complete,
the FBO still intends the carcass for human consumption.
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(5) Providing a mechanism for judicial oversight of the process of
condemnation is required by article 17 of the Charter of Fundamental Rights
of the European Union (CFR) (equivalent to article 1 of the First Protocol to
the ECHR) which protects the right to property, read with article 47, which
requires an effective judicial remedy for everyone whose rights and freedoms
guaranteed by community law are violated. It would be a violation if an FBO
were deprived of the property in the carcass – or required to dispose of the
carcass in such a way as to render it valueless – without proper justification
or compensation.
(6) Judicial review does not constitute an appeal which satisfies the
requirement in Regulation (EC) No 882/2004 that there be a right of appeal.
Regulation (EC) No 882/2004 requires that there be a right of appeal against
the decision of an OV on the merits going beyond what is possible in judicial
review.
21. Against this, the competent authority, the FSA, argues that it would be
incompatible with the regime established by the Regulations if resort were made to
the procedure under section 9 of the 1990 Act in order to challenge the decision of
the OV under article 5 of Regulation (EC) No 854/2004 on its merits. The FSA
accepts that the lawfulness of the decision can be challenged in judicial review
proceedings as set out above. In summary, the FSA asserts that:
(1) The requirements of Regulation (EC) No 854/2004 are a lex specialis
in relation to products of animal origin. Regulation (EC) No 882/2004 is
without prejudice to specific Community provisions regarding official
controls (article 1.3). Regulation (EC) No 854/2004 therefore takes
precedence over Regulation (EC) No 882/2004 where it is necessary to do
so.
(2) There is a distinction between the roles undertaken by the OV under
article 4 of Regulation (EC) No 854/2004 and those undertaken under article
5. The former concerns the audit of an FBO’s general practices and
compliance with food hygiene requirements. It is accepted that article 54 of
Regulation (EC) No 882/2004 is capable of being applied to that role.
However, it should be noted that, despite the wording of recital (43), article
54.3 stops short of positively requiring that there be a right of appeal.
(3) The role of inspecting and health marking individual carcasses under
article 5 is quite different from the audit role under article 4. The OV alone
(with the assistance permitted under the Regulation) has responsibility for
deciding whether or not to apply a health mark, which is a necessary
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prerequisite to placing the meat on the market. Nobody other than the OV
can perform this task. This can only be done when “official controls have not
identified any deficiencies that would make the meat unfit for human
consumption”. That “weighted double negative” test is consistent with the
overall aim laid down in article 1.1 of Regulation (EC) No 178/2002, of the
“assurance of a high level of protection of human health and consumers’
interest in relation to food”. It may be that the meat remains “food” even after
the OV has decided not to apply a health mark, but it cannot thereafter be
lawfully intended for human consumption.
(4) The qualifications and experience of the OV are carefully specified so
as to ensure that he or she is properly qualified to undertake that decisionmaking role (with the assistance permitted under the Regulations). It would
be incompatible with the requirements of Regulation (EC) No 854/2004 for
a person or body other than the OV as referred to in article 5.2 and which
does not have those qualifications and experience, such as a Justice of the
Peace acting pursuant to section 9 of the 1990 Act, to decide whether a
carcass should have had a health mark applied to it, even if adjudicating with
the benefit of expert evidence presented by each side.
(5) Article 17 of the CFR (and article 1 of the First Protocol to the ECHR)
permit control of the use of property if this is a proportionate means of
achieving a legitimate aim (reference is made to Booker Aquaculture Ltd
(trading as Marine Harvest McConnell) v Scottish Ministers (Joined Cases
C-20/00 and C-64/00) [2003] ECR I-7411). The above aim is undoubtedly
legitimate and the means chosen proportionate. Article 17 does not mandate
a right of challenge to the imposition of such controls.
(6) If there is a requirement that there be a right of appeal in relation to
the decision of an OV under article 5.2 of Regulation (EC) No 854/2004, it
is satisfied by the availability of judicial review as set out above. Judicial
review also satisfies any requirement under article 17 of the CFR (or article
1 of the First Protocol to the ECHR) of a possibility of judicial control of the
actions of an OV.
Conclusion
22. For the purposes of this reference, the Court of Justice of the European Union
is asked to assume that the claimant appellants’ interpretation of section 9 of the
1990 Act is correct, and that a Justice of the Peace has power to give a ruling which
may result in an award of compensation if he considers that a health mark ought to
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have been applied to a carcass. In order to determine this appeal, this Court refers
the following questions to the Court of Justice of the European Union:
(1) Do Regulations (EC) Nos 854/2004 and 882/2004 preclude a
procedure whereby pursuant to section 9 of the 1990 Act a Justice of the
Peace decides on the merits of the case and on the basis of the evidence of
experts called by each side whether a carcass fails to comply with food safety
requirements?
(2) Does Regulation (EC) No 882/2004 mandate a right of appeal in
relation to a decision of an OV under article 5.2 of Regulation (EC) No
854/2004 that the meat of a carcass was unfit for human consumption and, if
it does, what approach should be applied in reviewing the merits of the
decision taken by the OV on an appeal in such a case?
