Eastside Cheese Company (A Firm) & Anor v Secretary Of State For Health (R ex parte)

An emergency control order under section 13 of the Food Safety Act 1990 may be used where the Minister reasonably considers that commercial operations involving food may pose an imminent risk to health. The power is wider and more drastic than the local authority powers under section 9, so section 9 should be used where it would provide equally effective protection. That does not prevent section 13 action where the scale, urgency and uncertainty of the risk make central action more effective. Proportionality under Article 36 requires objective justification and a demanding review, but a responsible decision-maker addressing urgent scientific and public-health risks retains an appropriate margin of appreciation. Administrative convenience, properly understood as the practical ability to secure effective protection, is not necessarily irrelevant. An innocent distributor need not be exempted where that would create unjustified unequal treatment, although ministerial consent may be sought under section 13(3).

The Secretary of State made an emergency control order under section 13 of the Food Safety Act 1990 prohibiting commercial operations involving cheese originating from R A Duckett and Co. The order followed positive tests for E-coli 0157, an associated serious illness, uncertainty about the source and duration of contamination, and concern that affected cheese had been widely distributed.

Eastside Cheese Company, a processor and maturer of Duckett cheese, obtained permission to seek judicial review. Moses J rejected most grounds but held the order unlawful because the authorities had taken account of irrelevant administrative considerations. The Secretary of State appealed. Eastside and Ducketts supported the result and advanced additional challenges concerning proportionality, exemption, compensation and human rights.

1. Appeal allowed. The order of Moses J was set aside, except as to costs. The respondents’ additional grounds were rejected.
2. The statutory scheme creates a hierarchy of powers. Section 9 of the Food Safety Act 1990 concerns specific food held by specific persons and provides safeguards, including possible compensation. Section 13 permits a ministerial order directed more broadly to classes of food or commercial operations where there may be an imminent risk of injury to health. Section 13 action is inappropriate where section 9 would provide equally effective protection, but the difference in scope does not make section 13 unavailable where urgent, nationwide and effective action requires central intervention.
3. The authorities had reasonably concluded that all Duckett cheese should be treated as unsafe, that the risk was imminent, and that local action would not provide equally quick and effective protection. The practical difficulties of obtaining evidence, coordinating more than 100 local authorities and avoiding the release of potentially contaminated cheese were impediments to public protection, not merely administrative convenience. The court found no improper consideration of irrelevant matters.
4. The court accepted that proportionality under Article 36 of the EC Treaty requires objective justification and review more demanding than Wednesbury unreasonableness or simple manifest-error review. The court must assess the measure, while allowing a narrower margin of appreciation to a responsible decision-maker evaluating urgent scientific and public-health risks. The judge had applied the correct test and carried out the necessary balancing exercise.
5. Eastside was not unlawfully excluded from the order. Although an exception could have been made under section 48(1)(c), equal treatment of other innocent recipients and the availability of ministerial consent under section 13(3) justified the approach taken.
6. The Secretary of State had not failed to consider the loss of compensation under section 9. The court also rejected, in brief observations, the Article 1 of Protocol 1 challenge: the measure controlled the use of property in the public interest, struck a fair balance, and responded to an objectively imminent threat.

• Court of Appeal (Civil Division): allowed the Secretary of State’s appeal and set aside the order of Moses J, save as to costs. The respondents’ grounds in their notices were rejected.
• High Court, Queen’s Bench Division, Administrative Court: Moses J dismissed most grounds but held the amended emergency control order unlawful on the ground that irrelevant administrative considerations had been taken into account.