After an Official Veterinarian withheld a health mark from a slaughtered bull because pyaemia was suspected, the operator argued that the Food Standards Agency had to take the carcass before a Justice of the Peace under section 9 of the Food Safety Act 1990. The Supreme Court did not decide whether that procedure is available or compatible with European Union food safety law. It referred two questions to the Court of Justice of the European Union, asking whether those regulations preclude a merits decision by a justice and whether they require a right of appeal against the veterinarian’s decision.
An official veterinarian refused to mark a bull’s carcass as fit for human consumption after signs of disease were found. The slaughterhouse disputed that assessment and wanted an independent decision on the merits.
Law Teacher writing support
Writing a law essay?
We choose a writer who is an expert in your area of law and qualified to at least the academic level you select. Most of our writers hold a master’s degree or PhD, have teaching experience, or both.
Send us your question and, if you wish, any marking criteria. We’ll write an essay to your instructions.
The company relied on section 9 of the Food Safety Act 1990, under which a justice of the peace could determine whether food should be condemned. The Food Standards Agency maintained that this procedure was not a route of appeal against the veterinarian’s judgment.
The proceedings and the issues
The Association of Independent Meat Suppliers, acting for some 150 slaughterhouses, and the company brought judicial review proceedings. They challenged the Agency’s assertion that the section 9 procedure need not be used and argued in the alternative that the United Kingdom must provide a means of challenging an Official Veterinarian’s decision. They failed in the High Court and the Court of Appeal and appealed to the Supreme Court.
Lady Hale and Lord Sales, with whom Lord Hodge, Lady Black and Lord Lloyd-Jones agreed, identified three issues. The first was whether section 9 is available and has to be used if the owner refuses to surrender the carcass. Under that procedure an authorised officer may seize food that appears not to comply with food safety requirements and take it before a Justice of the Peace. If the justice finds that it fails to comply, the food is condemned and destroyed at the owner’s expense. If the justice refuses to condemn it, the authority must compensate for depreciation. Food fails to comply if it is unsafe within article 14 of Regulation (EC) No 178/2002, meaning injurious to health or unfit for human consumption. The claimants accepted that the justice cannot order a health mark to be applied, but argued that the veterinarian could be expected to respect the ruling and that compensation might be payable.
The Agency accepted that section 9 could be one possible means of enforcement if an unmarked carcass were introduced into the food chain, but not that it was suitable or obligatory for resolving a dispute about fitness. It said a justice could not order a health mark and could do nothing other than condemn an unmarked carcass. The Court observed that the operator could seek judicial review of the veterinarian’s decision or of a disposal notice. The High Court may quash an unlawful decision, including one that is irrational or lacks a sufficient evidential basis, and may award compensation for a breach of Convention rights, but judicial review is not an appeal on the merits.
The second issue was whether using section 9 in the way the claimants described would be incompatible with the EU regime in Regulations (EC) Nos 852/2004, 853/2004, 854/2004, 882/2004 and 1069/2009, read with Regulation (EC) No 178/2002. The third was whether Regulation 882/2004 requires an appeal against the veterinarian’s decision and, if so, whether the appeal must examine the full factual merits or whether judicial review is sufficient.
The competing arguments
The claimants said section 9 was used under the earlier directive regime, had caused no practical difficulty, and had been described in official guidance, until shortly before these proceedings, as the course to take where voluntary surrender was refused. They argued that the specific controls in Regulation 854/2004 operate together with the enforcement provisions in Regulation 882/2004. Recital (43) and articles 54 and 55, they said, require a right of appeal, including against an individual decision not to apply a health mark. Nothing in the regulations prohibits section 9. They also said the carcass remained food, and had not become an animal by-product, while the operator still intended it for human consumption. They relied on the right to property and the right to an effective remedy, and maintained that judicial review does not provide the required appeal on the merits.
The Agency argued that a merits decision by a justice would be incompatible with Regulation 854/2004, which it treated as a lex specialis for products of animal origin. Only the Official Veterinarian, possessing the qualifications specified in that Regulation, may decide whether official controls have identified deficiencies making the meat unfit and whether to apply a health mark. A justice cannot perform that task, even with expert evidence. The Agency accepted that article 54 may apply to the veterinarian’s audit role, but said it does not positively require an appeal against the distinct individual inspection and health-marking function. Any requirement of judicial control, including under the right to property, is met by judicial review. Control of the use of property to protect human health was said to be a proportionate pursuit of a legitimate aim.
The questions referred
The Supreme Court did not resolve these issues. For the reference it asked the Court of Justice to assume that the claimants’ interpretation of section 9 is correct, and that a Justice of the Peace may give a ruling which may result in compensation if a health mark ought to have been applied. It referred two questions: whether Regulations 854/2004 and 882/2004 preclude a section 9 procedure in which a justice decides on the merits, on expert evidence from each side, whether a carcass fails to comply with food safety requirements; and whether Regulation 882/2004 mandates a right of appeal against an Official Veterinarian’s decision under article 5.2 of Regulation 854/2004 that the meat was unfit for human consumption and, if so, what approach should be applied when reviewing the merits of that decision.
Verdict: The Court referred two questions to the Court of Justice. It asked whether EU law permitted a justice of the peace to decide fitness on the merits and whether EU law required an appeal, and of what scope. This 2019 decision did not dispose of the appeal. The later Supreme Court judgment is [2021] UKSC 54.
