R (on the application of Association of Independent Meat Suppliers and another) v Food Standards Agency [2019] UKSC 36

A slaughterhouse disputed an Official Veterinarian's decision that a bull carcass was unfit for human consumption. The Supreme Court considered whether section 9 of the Food Safety Act 1990 provided a challenge mechanism compatible with EU food safety law, and referred questions to the CJEU.

Facts

On 11 September 2014, the Cleveland Meat Company Ltd (CMC) purchased a live bull for £1,361.20 at Darlington Farmers’ Auction Mart. The bull was passed fit for slaughter by the Official Veterinarian (OV) at CMC’s slaughterhouse and assigned kill number 77. Following slaughter, a Meat Hygiene Inspector (MHI) conducted a post-mortem inspection and identified three abscesses in the offal. The OV subsequently declared the carcass unfit for human consumption, suspecting pyaemia, and refused to apply a health mark. Without a health mark, it would have been a criminal offence under regulation 19 of the Food Safety and Hygiene (England) Regulations 2013 for CMC to sell the carcass.

CMC obtained contrary veterinary advice and disputed the OV’s opinion. It argued that, if it refused voluntary surrender, the OV would have to invoke section 9 of the Food Safety Act 1990 and take the carcass before a Justice of the Peace for determination. The Food Standards Agency (FSA) disagreed, maintaining the carcass should simply be disposed of as an animal by-product. On 23 September 2014, a disposal notice was served under the Animal By-Products (Enforcement) (England) Regulations 2013 and Regulation (EC) No 1069/2009. CMC and the Association of Independent Meat Suppliers sought judicial review, having failed in the High Court and Court of Appeal.

Issues

The Supreme Court identified three main issues:

1. Whether, as a matter of domestic law, the section 9 procedure of the 1990 Act is available and must be used by the OV or FSA where a carcass owner refuses voluntary surrender, so as to afford a means of challenging OV decisions.
2. Whether use of the section 9 procedure is compatible with the EU food safety regime, particularly Regulations (EC) Nos 852/2004, 853/2004, 854/2004, 882/2004, 1069/2009 and 178/2002.
3. Whether Regulation (EC) No 882/2004 mandates an appeal procedure, and if so, whether such appeal must permit challenge on the full factual merits or whether judicial review suffices.

Arguments

Appellants’ submissions

The appellants argued that the section 9 procedure had been applied under the predecessor EU Directive regime without practical difficulty, and the Meat Hygiene Service Manual of Official Controls had, until shortly before proceedings began, stated that OVs must use section 9 where voluntary surrender was not forthcoming. They contended that Regulation (EC) No 854/2004 contains no enforcement or sanctions provisions, these being supplied by Regulation (EC) No 882/2004, which by recital (43) and article 54 mandates a right of appeal. Nothing in the Regulations prohibits a procedure like section 9, under which a Justice of the Peace could hear expert evidence and make a ruling potentially leading to compensation. They further argued that the carcass remained “food” (not an animal by-product) until condemnation was complete, and that articles 17 and 47 of the Charter of Fundamental Rights required effective judicial oversight of deprivation of property. Judicial review, they submitted, did not constitute a sufficient appeal on the merits.

Respondent’s submissions

The FSA argued that Regulation (EC) No 854/2004 is a lex specialis for products of animal origin, taking precedence over Regulation (EC) No 882/2004 where necessary. It distinguished between the audit role under article 4 (to which article 54 of Regulation 882/2004 may apply) and the individual inspection and health marking role under article 5, which is entrusted exclusively to the OV. Only the OV possesses the specified qualifications and experience to decide whether a health mark should be applied; it would be incompatible with the Regulation for a Justice of the Peace, even with expert evidence, to substitute their view. The FSA maintained that article 17 of the Charter permits proportionate controls in pursuit of a legitimate aim of protecting human health, citing Booker Aquaculture Ltd v Scottish Ministers (Joined Cases C-20/00 and C-64/00). Judicial review, it submitted, was sufficient to satisfy any requirement of judicial control.

Judgment

The Supreme Court did not resolve the substantive dispute. Instead, recognising that the compatibility of the section 9 procedure with the EU food safety regime and the scope of any required appeal mechanism turned on questions of EU law, the Court made a reference to the Court of Justice of the European Union.

The Court also observed, though the point was not raised by the FSA in argument, that judicial review proceedings were available in the High Court to challenge an OV’s decision or to quash a disposal notice on the usual public law grounds (improper purpose, wrong legal test, irrationality, lack of evidential basis), with the High Court occasionally hearing oral evidence, making mandatory orders and awarding compensation for ECHR breaches. However, the Court noted that judicial review is not an appeal on the merits.

The Court referred the following questions to the CJEU, asking it to assume the appellants’ interpretation of section 9 is correct (that a Justice of the Peace can give a ruling which may result in compensation):

1. Whether Regulations (EC) Nos 854/2004 and 882/2004 preclude a section 9 procedure under which a Justice of the Peace decides on the merits, based on expert evidence from each side, whether a carcass fails to comply with food safety requirements.
2. Whether Regulation (EC) No 882/2004 mandates a right of appeal against an OV decision under article 5.2 of Regulation (EC) No 854/2004 that meat was unfit for human consumption, and if so, what approach should govern the review of the OV’s decision.

Implications

The decision represents an interim step: the Supreme Court recognised that the legality of the FSA’s position, and the availability or compatibility of the historic section 9 mechanism with the EU food safety regime introduced in 2006, cannot be resolved without authoritative guidance from the CJEU. The judgment identifies a genuine tension between a long-standing domestic procedure allowing judicial scrutiny by a local Justice of the Peace (with potential compensation) and an EU regime which vests health-marking decisions exclusively in a specifically qualified OV.

For slaughterhouse operators and the wider meat industry, the case is significant because the outcome will determine whether they retain a merits-based route to challenge an OV’s decision refusing a health mark, or whether they must rely solely on judicial review in the High Court, which does not permit re-evaluation of the factual and scientific merits. The Court’s reference also foregrounds important questions about the adequacy of judicial review in satisfying any EU law right of appeal, including under article 17 of the Charter (property rights) and article 47 (effective judicial remedy). The judgment does not itself determine those points, and the Court was careful not to pre-empt the CJEU’s conclusions.

Verdict: The Supreme Court did not determine the appeal but referred two questions to the Court of Justice of the European Union concerning the compatibility of the section 9 procedure under the Food Safety Act 1990 with Regulations (EC) Nos 854/2004 and 882/2004, and whether Regulation (EC) No 882/2004 mandates a right of appeal against an OV’s decision.

Source: R (on the application of Association of Independent Meat Suppliers and another) v Food Standards Agency [2019] UKSC 36