National Association of Health Stores & Anor, R (on the application of) v Department of Health

A minister who personally exercises a statutory power must receive enough information to make an informed decision. Knowledge held by departmental officials is not automatically the minister’s knowledge. Officials may analyse and summarise the evidence, provided that the minister receives the salient facts concerning matters which must legally be considered. Scientific safeguards do not require every primary study to be put before the minister.

Relief for defective consultation may be refused where a lawful evaluation already made by the authorised decision-maker establishes that consultation could not produce a different lawful outcome. A harmless omission from subordinate legislation need not lead to quashing where the rule-maker can supply the omitted provision without disrupting the existing text.

The National Association of Health Stores, whose members’ businesses were affected, and a second claimant, whose freedom of choice was restricted, challenged measures prohibiting kava-kava in medicinal products and food. Lord Hunt authorised the medicines prohibition. Hazel Blears authorised the food prohibition.

Professor Ernst, a member of the Medicines Commission and an expert in complementary medicine, opposed prohibition following a scientific meta-analysis. The appellants argued that the ministers had received insufficient information about his expertise, review and conclusions. They also challenged the omission of compulsory warning labelling from consultation and the omission of a mandatory exemption for food already in transit.

Crane J dismissed the challenge in [2003] EWHC 3133 (Admin.). The appellants appealed with permission. The central questions concerned the information a minister must personally receive, the consequences of the consultation defect, and whether the omission from the food regulations required quashing.

1. The appeal was dismissed unanimously. The measures remained effective, although the court rejected the Administrative Court’s conclusion that officials’ knowledge could automatically be treated as knowledge taken into account by the minister.

2. A curable omission from subordinate legislation did not necessarily require the entire instrument to be quashed. The omission of the goods-in-transit exemption had apparently harmed nobody and could be corrected without disrupting the existing text. DPP v Hutchinson supported a flexible approach to severability. Its outcome was distinguishable because the lawful instrument there would have been fundamentally different. The rule-maker had now supplied the exemption by amendment.

3. The consultation challenge failed without a final ruling on whether consultation had legally required consideration of warning labelling. Following due consultation, the authorised decision-maker had rejected prescription-only supply as an insufficient safeguard. It could therefore not rationally have accepted the weaker safeguard of warning labels. The caution expressed in R v Chief Constable of the Thames Valley Police, ex parte Cotton remained important. Here, however, the inevitable outcome followed from the decision-maker’s lawful evaluation rather than the court’s assessment of the merits.

4. Carltona Ltd v Commissioners of Works establishes that an authorised official’s act is legally the minister’s act. It does not impute officials’ knowledge to a minister who personally decides. Bushell v Secretary of State for the Environment concerned procedural fairness and internal departmental advice, rather than automatic attribution of knowledge. Sedley and Keene LJJ expressly rejected that attribution.

5. The minister could rely on departmental analysis and summaries. He had to receive the salient facts concerning matters which he was bound to consider, rather than every relevant detail. The principles in Minister for Aboriginal Affairs and another v Peko-Wallsend Limited and others and CREEDNZ Inc v Governor General supported that distinction. Lord Hunt received the Commission’s advice, the adverse-reaction evidence and a summary of Professor Ernst’s objections. His ignorance of the professor’s precise standing, the review’s existence and its detailed conclusions did not invalidate the decision. Bennett J emphasised that mandatory considerations depend on the statute’s subject-matter, scope and purpose.

6. The European authorities required rigorous scientific assessment and an adequately informed decision-making process. They permitted officials and expert bodies to analyse, sift and summarise the evidence. The designated decision-maker nevertheless had to know enough to make a genuine decision.

7. On disclosure, the court accepted secondary evidence of the ministerial briefing because both parties agreed to that course. It observed that, absent that agreement and any public interest immunity, it would have required the briefing itself. The consequences of a complete refusal to disclose what the minister had been told were left open.

• Court of Appeal (Civil Division) — [2005] EWCA Civ 154 : dismissed the appeal unanimously, while rejecting the lower court’s reasoning on automatic attribution of departmental knowledge to ministers.
• High Court, Administrative Court — [2003] EWHC 3133 (Admin.): Crane J dismissed the judicial review application on 19 December 2003. He found defects concerning consultation on warning labelling and the omitted goods-in-transit exemption, but refused to quash the measures.