Association of Independent Meat Suppliers & Anor, R (On the Application Of) v Food Standards Agency

On 11 September 2014, Cleveland Meat Company Ltd (the 2nd Claimant) purchased a bull at Darlington Farmers’ Auction Mart for a price of approximately £1,400. On the same date, the Official Veterinarian (‘OV’) stationed at the 2nd Claimant’s slaughterhouse carried out an ante-mortem inspection of the animal and passed it as fit for slaughter for the purpose of human consumption.

It was assigned a kill number, stunned and slaughtered. The head and feet were severed, the hide removed, the body eviscerated and the carcase split longitudinally with the spinal cord being removed. The carcase and the offal were then subject to a post-mortem inspection by a Meat Hygiene Inspector (‘MHI’).

The carcase was of normal appearance, but the offal was assessed as containing three abscesses. The MHI did not retain the offal; but following discussions between the OV and the MHI, the carcase was declared unfit for human consumption on the basis that the abscesses gave rise to a suspicion that the animal had been suffering from pyaemia (a form of septicaemia). This assessment was confirmed in a ‘Rejected Meat Receipt’ prepared by the OV on the same date.

Mr Michael Broad, the 2nd Claimant’s Managing-Director and a Director of Darlington Farmers’ Auction Mart, was concerned about this decision. In his evidence he has realistically accepted that apparently healthy animals may prove on post-mortem inspection to be suffering from disease which renders them unfit for human consumption. They may, for example, have walled off TB lesions in the organs. In the case of pyaemic animals, however, his experience is that they tend to be underweight and show signs of being unwell. The animal in question showed no such signs. It was in his words, ‘fighting fit.’ He did not accept the OV’s decision, took expert veterinary advice and employed solicitors to challenge the assessment of the meat’s fitness for human consumption.

The Defendant, which is the regulator of the meat industry and is responsible for the official controls at slaughterhouses, was not prepared to engage in an argument about the correctness of the OV’s decision. It contended (and continues to contend) that there is no right of appeal against a decision by an OV to reject meat as unfit for human consumption.

In a letter of 19 September 2014 the 2nd Claimant was notified that the OV considered that carcase 77 was suffering from generalised pyaemia, and that it must be disposed of as animal by-product. This was followed by a statutory disposal notice requiring the 2nd Claimant to dispose of the carcase as animal by-product, with a warning that failure to comply with the notice was a criminal offence.

The 1st Claimant, as its name suggests, acts on behalf of its members who are the owners and managers of 150 slaughterhouses. The evidence of Mr Norman Bagley, its Head of Policy, is that any decision that a carcase is unfit to enter the food chain has a direct financial impact on its members (if the animal is sold at market) and to farmers (if the animal is supplied directly to the slaughterhouse). While he accepts that it is of the utmost importance that any meat leaving a slaughterhouse is fit for human consumption and that members of the association depend on public confidence in the food which is produced, the people who work in the industry, and particularly farmers (who will have reared the animals) have a good idea of their condition. For example, if an animal has been ill in the past this will be documented on the Food Chain Information which accompanies each animal to the slaughterhouse. In Mr Bagley’s view, OVs who are stationed at abattoirs lack experience of clinical veterinary practice and their opinions may not be shared by more experienced veterinarians, as in the present case.

Mr Board has assessed the cost of carcase 77 as being approximately £1,400 in terms of the purchase cost of the animal, £200 gross loss of profit as a result of having to disposes of the carcase as animal by-product and £100 as the cost of disposal of a whole beef carcase. This is the equivalent of ten times the profit the 2nd Claimant would expect to make on ten animals such as carcase 77.

Although the 2nd Claimant has placed material before the Court which supports an argument that the animal was not suffering from pyaemia, that is not an issue that I could, or am asked to, decide. The issue for determination is whether there is a right of appeal against an OV’s assessment of the fitness of meat for human consumption. The Claimants’ case is that, where there is a genuine dispute as to the fitness of meat for human consumption, there should be a forum in which that issue can be determined, and that the failure to afford a slaughterhouse operator the right to challenge decisions that meat is unfit, is unlawful.

Their case is that, not only should there be such a forum, there is in fact such a forum: a hearing before a Justice of the Peace.

Mr Hercock advanced the claim in three ways.

First, he submitted that in circumstances where a slaughterhouse operator disagrees with a decision that meat is unfit for human consumption and does not agree that a carcase should be surrendered for disposal, the applicable EU Regulations (which have direct application) require the Defendant to follow the statutory procedure set out in s.9 of the Food Safety Act 1990 (‘the 1990 Act’). On this basis the procedure adopted by the Defendant has the effect of unlawfully circumventing the rights and protections set out in the EU Regulations.

Secondly, if there is doubt about whether the statutory procedure in s.9 of the 1990 Act applies, such ambiguity must be resolved by considering: (a) references to rights of appeal for those in the position of the 2nd Claimant; and (b) the convention rights set out in Article 1 of Protocol No.1 (‘A1/P1’) of the European Convention on Human Rights (‘ECHR’) and article 17 of the EU Charter of Fundamental Rights of Freedoms (the ‘EU Charter’).

Thirdly, and if section 9 of the 1990 Act cannot provide the route for the determination of the issues between the parties, the Court should make a declaration that the Defendant’s practice of not affording a slaughterhouse operator a right to appeal against a decision to declare meat unfit for human consumption is an infraction of the 2nd Claimant’s rights under A1/P1 and is unlawful.

The Defendant is the ‘competent authority’ for the purposes of the European and national legislation in relation to food safety, and carries out controls to ensure compliance with the law. As already noted, the material controls at slaughterhouses are carried out by qualified and trained OVs, with the assistance of Official Auxiliaries (‘OA’), known in this country as MHIs.

The regulation of slaughterhouses derives primarily from European Union law and, in particular, of Regulations of the European Parliament and Council, consisting of preamble paragraphs, operative articles and (in most cases) annexes.

Regulation 178/2002 of 28 January 2002 lays down general principles and requirements of food law, establishes the European Food Safety Authority and sets out procedures in matters of food safety.

Article 1 describes the aim and scope of the Regulation:

1.

This Regulation provides the basis for the assurance of a high level of protection of human health and consumers’ interest in relation to food, taking into account in particular the diversity in the supply of food including traditional products, whilst ensuring the effective functioning of the internal market.

The reference to the internal market emphasises the importance of the regulations applying consistently throughout the European Union.

Article 14 provides that food shall not be placed on the market if it is unsafe, and that it shall be considered to be unsafe if it is injurious to health or unfit for human consumption. It is common ground that the carcase in the present case fell within the definition of ‘food’.

On 29 April 2004 three further Regulations were issued, known as the ‘EU Hygiene Regulations’.

Regulation 852/2004 laid down hygiene rules applying to all foodstuffs, Regulation 853/2004, established specific hygiene rules for products of animal origin and Regulation 854/2004 laid down specific rules for official controls on products of animal origin intended for human consumption.

Article 5 of Regulation 853/2004 provides that:

Food business operators shall not place on the market a product of animal origin … unless it has … a health mark applied in accordance with Regulation 854/2004 …

Article 5 of Regulation 854/2004 requires member states to ensure that official controls with respect to fresh meat take place in accordance with Annex 1; and sets the responsibilities of the OV for the post-mortem inspection and health marking. Importantly in the present context, it provides that the OV must take appropriate measures as set out in Annex 1, Section II,

… in particular as regards … (d) decisions concerning meat.

Annex 1 of Regulation 854 is headed ‘Fresh Meat’. Section I of Annex 1 sets out the ‘tasks’ of the OV, with Chapter I describing the ‘auditing tasks’; Chapter II the ‘inspection tasks’ (including the post-mortem inspection), and Chapter III the application of a health mark, which is to be applied where there are no grounds for declaring the meat unfit for human consumption.

Chapter III is headed, ‘Health Marking’, and paragraph 2 requires, among other things, for the OV to ensure that:

(a)

the health mark is applied only to animals … having undergone ante-mortem and post-mortem inspection in accordance with the Regulation and when there are no grounds for declaring the meat unfit for human consumption …

Section II of Annex 1 is headed, ‘actions following controls’. Chapter I of this section is headed ‘communication of inspection results’. Chapter V is headed, ‘Decisions concerning meat.’ Paragraph 1 of Chapter V provides that meat is to be declared unfit for human consumption if it falls into one of alphabetically listed categories from (a) to (u).

These categories include:

(f)

derives from animals affected by a generalised disease, such as generalised septicaemia, pyaemia, toxaemia or viraemia.

Some of the categories plainly involve subjective judgements, for example:

(q)

derives from emaciated animals;

…

(s)

shows soiling, faecal or other contamination;

…

(u)

in the opinion of the [OV], after examination of all relevant information, it may constitute a risk to public or animal health or is for any other reason not suitable for human consumption.

Regulation 882/2004 (also dated 29 April 2004) relates to official controls which are designed to ensure the verification of compliance with food law, animal health and animal welfare rules. This regulation is referred to in Article 1a of Regulation 854 as applying to Regulation 854.

The Claimants rely on two provisions. The first is a paragraph in the preamble:

(43)

Operators should have the 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.

The second is article 54 which, under the heading ‘action in the case of non-compliance, provides:

1.

When the competent authority identifies non-compliance, it shall take action to ensure that the operator remedies the situation …

2.

Such action shall include, where appropriate, the following measures:

…

(b)

the restriction on the prohibition of the placing on the market, import or export of feed or food;

(c)

monitoring and, if necessary, ordering the recall, withdrawal and/or destruction of feed or food.

…

3.

The competent authority shall provide the operator concerned with, or a representative, with:

(a)

written notification of its decision concerning the action to be taken in accordance with paragraph 1, together with the reasons for the decision;

and

(b)

information on rights of appeal against such decisions and on the applicable procedure and time limits.

It is convenient to note two points at this stage. First, the EU Regulations are all directly applicable in all member states of the EU, see Article 288 on the Treaty on the Functioning of the European Union. Secondly, the Regulations do not (and specifically Regulation 854 does not) provide for any means of challenging the decision of the OV not to apply a health mark on the basis that there are in fact no grounds for declaring the meat is unfit for human consumption.

In addition to these directly applicable EU Regulations, there is a domestic Regulation which provides for the ‘execution and enforcement’ of the Hygiene Regulations, including Regulation 854/2004.

The Food Safety and Hygiene (England) Regulations 2013/2996 (the ‘2013 National Regulations’)provide for the execution and enforcement of Regulations 178/2002 and 852-854/2004 within England.

Regulation 15 of these Regulations deals with ‘Enforcement Authorities’ and provides that the Defendant is the body charged with enforcing the Hygiene Regulations; and Regulation 19 provides that anyone who contravenes or fails to comply with what are described as the ‘specified EU Regulations’ commits an offence.

Regulation 25 is headed, ‘Application of section 9 of the Food Safety Act 1990’, and provides:

Section 9 of the Act (inspection and seizure of suspected food) applies for the purposes of these Regulations with the modification that it shall apply in relation to an authorised officer of an enforcement authority as it applies in relation to an authorised officer of a food authority.

Section 9 of the Food Safety Act 1990 (‘the 1990 Act) provides, under the heading, ‘Inspection and seizure of suspected food’,

(1)

An authorised officer of [an enforcement] authority may at all reasonable times inspect any food intended for human consumption which -

(a)

has been sold or is offered for sale;

(b)

is in the possession of, or has been deposited with or consigned to, any person for the purpose of sale or of preparation for sale; or

(c)

is otherwise placed on the market within the meaning of Regulation (EC) No.178/2002

and subsections (3) to (9) below shall apply where, on such an inspection, it appears to the authorised officer that any food fails to comply with food safety requirements.

…

(3)

The authorised officer may either –

(a)

give notice to the person in charge of the food that, until the notice is withdrawn, the food or any specified portion of it -

(i)

is not to be used for human consumption; and

(ii)

either is not to be removed or is not to be removed except to some place specified in the notice; or

(b)

seize the food and remove it in order to have it dealt with by a justice of the peace;

and any person who knowingly contravenes the requirements of a notice under paragraph (a) above shall be guilty of an offence.

(4)

Where the authorised officer exercises the powers conferred by subsection (3)(a) above, he shall, as soon as is reasonably practicable and in any event within 21 days, determine whether or not he is satisfied that the food complies with food safety requirements and—

(a)

if he is so satisfied, shall forthwith withdraw the notice;

(b)

if he is not so satisfied, shall seize the food and remove it in order to have it dealt with by a justice of the peace.

(5)

Where an authorised officer exercises powers conferred by subsection (3(b) or 4(b) above, he shall inform the person in charge of the food of his intention to have it dealt with by a justice of the peace and -

(a)

any person who under section 7, regulation 19(1) of the [2013 National Regulations], so far as relating to the second entry in the list of specified EU provisions set out in column 1 of Schedule 2 of this Regulations … might be liable to prosecution in respect of the food shall, if he attends before the justice of the peace by whom the food falls to be dealt with, be entitled to be heard and to call witnesses; and

(b)

that justice of the peace may, but need not, be a member of the court before which any person is charged with an offence under that section in relation to that food.

(6)

If it appears to a justice of the peace, on the basis of such evidence as he considers appropriate in the circumstances, that any food falling to be dealt with by him under this section fails to comply with food safety requirements, he shall condemn the food and order—

(a)

the food to be destroyed or to be so disposed of as to prevent it from being used for human consumption; and

(b)

any expenses reasonably incurred in connection with the destruction or disposal to be defrayed by the owner of the food.

(7)

If a notice under subsection (3)(a) above is withdrawn, or the justice of the peace by whom any food falls to be dealt with under this section refuses to condemn it, the food authority shall compensate the owner of the food for any depreciation in its value resulting from the action taken by the authorised officer.

(8)

Any disputed question as to the right to or the amount of any compensation payable under subsection (7) above shall be determined by arbitration ...

Mr Hercock submitted that Regulation 25 of the 2013 National Regulations envisages that any dispute as to whether food fails to comply with food safety requirements, including whether food is unfit for human consumption, and any dispute as to whether it should be disposed of or destroyed, is to be resolved by following the statutory procedure in section 9 of the 1990 Act. Section 9 is broad in its scope and applies, amongst other things, to the situation: (a) where there has been an inspection of food intended for human consumption, (b) which is in the possession of a person for the purposes of sale or preparation for sale, and (c) where the authorised officer is of the opinion that it fails to comply with the food safety requirements and seeks its disposal or destruction.

In the present case, when the OV carried out the official controls and inspected carcase 77, he inspected ‘meat’ as defined in the Hygiene Regulations. The meat was food intended for human consumption, within the meaning of s.9 of the 1990 Act, and was in the 2nd Claimant’s possession for the purposes of sale or, at the very least, for the purposes of preparation for sale. It followed that, since the 2nd Claimant did not agree to the voluntary surrender of the meat, a dispute arose which should have been resolved by means of the procedure set out in section 9 in the 1990 Act.

Section 51 of the Magistrates Court Act 1980 provides that, where a civil complaint in relation to a person is made, a Justice of the Peace may issue a summons to the person against whom a complaint is made requiring them to appear and answer the complaint. There are powers requiring the complainant to state the substance of the complaint, powers to adjourn and generally to hear and to deal with the complaint.

Mr Hercock submitted that the section 9 process created safeguards for the slaughterhouse operator by providing that the ultimate decision would be made by a court based on whatever evidence was considered appropriate, and provided the forum for challenging adverse decisions. It also provided a means for the slaughterhouse operator to obtain compensation from the competent authority where the decision was found to be wrong. The approach that was adopted by the Defendant in unilaterally declaring the ‘meat’ as animal by-product and requiring that it be disposed of as animal by-product, was (he submitted) an approach which deprived the 2nd Claimant of any right to challenge the decision, circumvented the statutory procedure in section 9 and denied the operator of the safeguards provided by the law. As such the Court should declare that it was unlawful, see for example R v Liverpool City Council ex p The Baby Products Association (2000) LGLR 689 per Lord Bingham CJ at p.178).

For the Defendant, Mr Heppinstall submitted that this was entirely to misunderstand the intent of the statutory and regulatory framework and the operation of s.9 of the 1990 Act.

The words ‘for the purposes of these Regulations’ in Regulation 25 of the 2013 National Regulations confined the application of s.9 of the 1990 Act specifically to those purposes and not for enforcing the Hygiene Regulations. There was, he submitted, no proper basis for interpreting Regulation 25 as intended to apply section 9 generally (with such modifications as might be necessary) in order to make up for the omission in the Hygiene Regulations to provide for a system of review or appeal against an OV’s decision.

He pointed out that Regulation 29 of the 2013 National Regulations, headed, ‘Food which has not been produced, processed or distributed in accordance with the Hygiene Regulations’, provided:

(1)

On an inspection of any food, an authorised officer of an enforcement authority may certify that it has not been produced, processed or distributed in compliance with the Hygiene Regulations.

(2)

Where any food is certified as mentioned in paragraph (1) it shall be treated for the purposes of section 9 of the Act as failing to comply with food safety requirements.

…

This, he submitted, made clear that section 9 applied to any food found by the Defendant on inspection to have been produced, processed or distributed outside the Hygiene Regulations. Thus, for example, if meat were inspected and found to have been placed on the market without a health mark, it could be seized and submitted to a Justice of the Peace for condemnation under section 9 of the 1990 Act, and a prosecution could be brought under Regulation 19, with a right under s. 9(5)(a) to be heard and to call witnesses, before the Court made its decision to condemn the meat.

In my judgment it is clear that the EU Regulations did not provide for a system of appeal against an OVs’ decisions and did not envisage that there could be such an appeal; and I note that the Claimants did not identify the existence of the right to such an appeal in any other state of the EU. In the normal course of their duties OVs make a very large number of decisions throughout the European Union in the course of a dynamic process of deciding whether meat is fit for human consumption. The EU Regulations make clear that ‘decisions concerning meat’ are made by the OV, see Section 1, Chapter II of Annex 1, and Section II Chapter V Paragraph 1 of Annex 1; and the OV is expressly charged with making what might be described as a ‘weighted’ double negative decision: namely, whether there are no grounds for declaring meat is unfit. The issue is doubtless framed in this way because the Regulations are intended to give assurances ‘of a high level of protection of human health and consumers’ interest in relation to food’, see article 5 of Regulation 178/2002.

In making that decision Annex 1 of Regulation 854/2004 prescribes that the OV exercises a judgement which is both subjective and expert, and in which doubts are necessarily resolved against declaring meat fit for human consumption. It is intended that the correct decision is made on the basis of the professional judgement of the OV, founded on the professional qualifications and training required of OVs and Meat Hygiene Inspectors. These are set out in extensive detail in Section II, Chapter IV of annex 1 to Regulation 854/2004, and are specifically directed to food safety as well as animal health. In this respect the qualifications and training of OV’s and other veterinarians are not coterminous.

A right of appeal (in this case to a Justice of the Peace) to challenge this expert evaluation and exercise of judgement, and the intervention of a Court in making its own (necessarily) inexpert decision, is entirely inconsistent with the scheme.

A court would not be asked to decide whether the meat was safe for human consumption, but the ‘weighted’ question identified above. The court would necessarily have to decide between the competing views of experts on each side, with the possibility of expert reports and subsequent meetings between experts to identify or narrow the issue. The sheer practical difficulties of such a process applying to every potential dispute throws significant light on the intent of the EU and domestic legislation.

There is the additional obstacle to the Claimants’ interpretation which is that the 2013 National Regulations do not expressly modify the application of section 9 of the 1990 Act so as to enable a Justice of the Peace to decide the relevant issue. As Mr Heppinstall pointed out, to have this result the 2013 Regulations would have to have had a provision making substantial modifications to the operation of section 9 of the 1990 Act, which applies to food intended for human consumption which has been sold, offered for sale, or is in possession, has been deposited or consigned for the purpose of or in preparation for sale or is otherwise placed on the market. A carcase at a slaughterhouse which lacks a health mark fits into none of these categories. Furthermore it cannot properly be described as having been placed on the market, since a carcase cannot be placed on the market without a health mark, see article 5 of Regulation 853/2004. If it were placed on the market without a health mark the person who was responsible would be guilty of a criminal offence and the meat could be condemned under section 9. A carcase at the slaughterhouse, which the OV has refused to mark and which must be disposed of as animal by-product, cannot be treated as having been ‘placed on the market’ and is outside of the scope of a provision which is designed to deal with the inspection and seizure of suspected food.

The section 9 process proceeds on the basis that the authorised officer decides whether or not to seize food intended for human consumption and then seeks a Justice of the Peace’s determination as to whether or not the food should be condemned. That process would need to be substantially re-written so as to transfer the ultimate decision-making power from the OV to the Justice of the Peace. Under Annex 1, the OV does not serve a notice or seize the carcase; he decides to declare it unfit for human consumption and refuses to apply the health mark. Neither a court process nor any other third party is mentioned.

Furthermore, if the entity running the slaughterhouse is charged with committing an offence created by Regulation 19 and Schedule 2 of the 2013 National Regulations, it would have no right to be heard or to call evidence under sub-section 9(5)(a); and this reinforces the impression that section 9 (as modified and applied by the 2013 National Regulations) is directed towards food which has found its way onto the market otherwise in accordance with EU Hygiene Regulations. Mr Heppinstall gave the example of a carcase which had never been presented to an OV and had been illicitly placed on the market without a health mark. In such a case it might be the subject of prosecution and condemnation under section 9.

Section 9(7) provides a right of compensation to the food owner if the food is not condemned by the Justice of the Peace. No such provision is made in Regulation 854/2004; and I accept Mr Heppinstall’s submission that a right to compensation would probably require primary EU legislation to provide for such compensation to those who own carcases where the OV has wrongly refused to apply a health mark. Consideration of whether financial compensation should be paid, and by whom, would need to be balanced against the important public interest in vesting the OV with the power to reject meat which is a threat to human health. That is a balancing exercise for the legislation (either EU or domestic), and in any event not for the court.

I therefore conclude that this ground of claim fails.

The Claimants’ second and alternative ground proceeds on the assumption that the EU Regulations and the 2013 National Regulations do not expressly incorporate the right of appeal under s.9 of the 1990 Act. On this basis, Mr Hercock argued that the lack of any express right to challenge an OV’s decision must be approached by interpreting the EU Regulations on the basis that there should be a right to an appeal, either because that is the general intent of the EU Regulations or because a failure to provide a right to appeal involves an infraction of the 2nd Claimant’s rights under A1/P1 and article 17 of the EU Charter.

A1/P1, which the Defendant accepts is engaged in this case, provides:

Every natural and legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and the general principles of international law. The preceding provisions shall not in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

Mr Hercock’s starting point was the general observation in paragraph (43) of the preamble of Regulation 882/2004, with its reference to rights of appeal against decisions taken by competent authorities, and the terms of article 54.3(b) with its reference to an obligation to provide information about rights to appeal.

He submitted that the rights conferred by A1/P1 and article 17 of the EU Charter are both designed to prevent the unjustified interference with a person’s peaceful enjoyment of property and possessions; and that to be justified the measures of interference have to be fair, afford due respect to guaranteed rights and provide an opportunity effectively to challenge measures interfering with those rights. Although he accepted that A1/P1 did not give rise to any explicit procedural obligation, he submitted that this is to be inferred generally, as part of the principle of fairness and the need to ensure basic safeguards in relation to the process leading to the measure of interference, and particularly in the present case by reasons of the provisions of Regulation 882/2004.

He drew attention to the decision of the 4th Section of the ECtHR in Microintellect OOD v. Bulgaria (Application 34129/03) at [44].

The Court reiterates, however, that, although the second paragraph of Article 1 of Protocol No.1 contains no explicit procedural requirements, it has been construed to require that persons affected by a measure interfering with their possessions be afforded a reasonable opportunity of putting their case to the responsible authorities for the purpose of effectively challenging those measures. In ascertaining whether this condition has been satisfied, the Court must take a comprehensive view of the applicable procedures (see AGOSI, cited above, §55; Bowler Internationals Unit, cited above, §§44-45; Jokela v. Finland, no 28856/95, §45 ECHER 2002-1V, and Denisova and Moiseyeva v. Russia, no.16903/03, P59, 1 April 2010).

In the Microintellect case alcohol had been impounded and forfeited in the course of administrative-penal proceedings against particular individuals and the applicant company did not have the opportunity to intervene in those proceedings, although it was directly and financially affected by them. At [47] the Court concluded that neither the tax authorities nor the domestic courts were competent to decide the ownership of the alcohol and that the domestic court had come to the conclusion that the applicant company’s submissions on the issue of ownership were irrelevant. The Court continued:

In the Court’s view, the lack of any judicial review of the contested measure was undoubtedly a result of deficient domestic legislation, because the relevant law did not provide for such a review, which put the applicant company in a situation of having no safeguards capable to protect it against unjustified interference …

and at [49];

Having regard to the above considerations, and in spite of the wide margin of appreciation afforded to the State in this domain, the Court finds that the Government failed to establish that the applicant company’s inability to challenge the measures interfering with its rights under Article 1 of Protocol No.1, and the lack of safeguards against arbitrariness, was necessary in a democratic society for the achievement of the legitimate aim pursued.

In Wilkinson v. Fitzgerald and another [2013] 1 WLR 1776, Aikens LJ at [49] described the parameters for the interpretation of domestic statutes which can be used so as to enable the Courts of England and Wales to fulfil their obligations under EU law, as well as their obligation to interpret statutes consistently with the Human Rights Act 1998. He set these out by reference to those described by Sir Andrew Morritt C in Vodafone 2 v. Revenue and Customs Commissioners [2010] Ch 77 [37]-[38]. For present purposes it is convenient to focus on 3 of these parameters: namely, that the obligation to construe domestic legislation consistently with Community Law is (a) only constrained to the extent that the meaning should ‘go with the grain of the legislation’ and ‘be compatible with the underlying thrust of the legislation being construed’; (b) must not lead to an interpretation being adopted which is inconsistent with a fundamental or cardinal feature of the national legislation since this would cross the boundary between interpretation and amendment; and (c) cannot require the courts to make decisions for which they are not equipped or give rise to important practical repercussions which the court is not equipped to evaluate.

Section 3(1) of the Human Rights Act 1998 requires the Court to ‘read and give effect to’ primary legislation in a way which is compatible with the ECHR ‘so far as it is possible to do so.’ As pointed out by Lord Nicholls in In re S (Care Order: Implementation of Care Plan [2002] 2 AC 291 at [39], Courts must always be aware of the constitutional boundary which reserves the amendment of primary legislation to Parliament.

It is clear then that, whether looked at from the point of view of EU law or from the point of view of the Human Rights Act, there are clear ‘constitutional boundaries’ which circumscribe the Courts’ powers of statutory interpretation.

On this basis I would accept that, if the EU Regulations made clear, or even indicated, that Member States should enact rights of appeal against an OV’s decision refusing to apply a health mark, or if they provided a basis for saying that this had been left as a matter for decision by individual States, then the Court would be bound to do its best to interpret both the EU Regulations and the domestic primary and secondary legislation, so as to give effect to that intention or indication. However, for the reasons set out above, that is not the position here. As already indicated, it seems to me that process by which a Justice of the Peace makes a decision under section 9 is wholly inimical to what would need to be a quick determination of disputed veterinary issues. To interpret s.9 of the 1990 Act in this way would be going against ‘the grain’ of the EU Regulations.

Although Mr Hercock can point to the words in paragraph (43) of the preamble and article 54.3 of Regulation 882/2004, the reference to rights of appeal is to the possibility of an appeal against executive action where there is a right of appeal and are not directed to the functions of the OV and the application of the health mark. It is concerned with different powers in relation to more general non-compliance with food controls. Since Regulation 854/2004 does not provide for a right of appeal or challenge to an OV’s decision not to apply a health mark, there is no incompatibility with EU Law for the Court to deal with. Indeed the finding that there is no such right is entirely compatible with the terms of the Regulation. It follows that the Court is under no duty to interpret any provision of domestic law so as to give full effect to EU Law.

Even if the position were otherwise, I am very doubtful whether the Court’s interpretive obligation could involve a manipulation of s.9 of the 1990 Act sufficient to provide a route of appeal. In my view Mr Heppinstall is correct in his submission that the incorporation of a s.9 scheme of appeal would require too much manipulation to be permissible under the principles described in the Williams case. If s.9 is not the legitimate means of introducing a right of appeal, then one is (in effect) left with no obvious alternative route; and it is emphatically not for the Courts to devise one.

In any event, it seems to me that the Court would need to be particularly cautious when invited to introduce into a scheme of considerable complexity a system of appeal on the basis of the Court’s view about the desirability of such a process. This is particularly so when the Claimants do not seek to confine the right of appeal which they say should arise. Although the Claimants have been at pains to emphasise their practical approach to any right of challenge, if they are right, there would be a right of appeal against every decision made by every OV in every slaughterhouse.

It follows that I find that this ground of claim also fails.

This way of putting the Claimant’s case proceeds on the yet further hypothesis that the Defendant’s ‘practice’ of denying a right to challenge an adverse decision as to the fitness of meat for human consumption is an infraction of A1/P1.

In my judgment this argument also fails. It is clear from the A1/P1 cases that if there is a right of appeal it must be effective, but the ECtHR has not interpreted the ECHR as giving rise to a right of appeal from an administrative act: that right is treated as a matter of domestic law. The Defendant has not adopted some arbitrary practice of denying the 2nd Claimant (and those in a similar position) a right of appeal. It has applied the law which, for understandable reasons, does not permit a right of appeal.

Although I accept that the lack of an appeal assigns a financial risk and potential burden on slaughterhouses, this is an example of the type of situation in which there are competing interests to be taken into account. Safety measures have been taken which are in the public interest, which are in accordance with conditions provided for by law, which are appropriate for achieving the aim of public safety and instilling confidence in meat production, and which achieve an appropriate balance between the general interests of those who consume meat (as well as those who depend upon their custom) and the requirement of those who supply those customers.

Accordingly I find that there is no infraction of the 2nd Claimants rights under A1/P1; and this ground also fails.

It follows that the Claimants’ claim for Judicial Review fails and must be dismissed.