R v Food Standards Agency

Where an official veterinarian refuses a health mark because meat is considered unfit for human consumption, judicial review can test the lawfulness of that decision, including whether the correct legal test was applied and whether the decision was irrational or lacked a sufficient evidential basis. Judicial review is not an appeal on the factual merits.

The Supreme Court did not decide whether a Justice of the Peace could reconsider fitness for consumption under Food Safety Act 1990, section 9. It referred to the Court of Justice questions concerning whether that procedure was compatible with European Union food-safety legislation and whether EU law required a merits appeal from the veterinarian’s decision.

An official veterinarian refused to apply a health mark to a slaughtered bull’s carcass after suspecting pyaemia. The refusal prevented the slaughterhouse operator from lawfully placing the meat on the market. The Food Standards Agency subsequently required disposal of the carcass as an animal by-product.

The operator and a trade association sought judicial review. They contended that, if the operator declined voluntarily to surrender the carcass, the Agency had to use the procedure in section 9 of the Food Safety Act 1990. Under that procedure, a Justice of the Peace would decide whether the carcass failed to comply with food-safety requirements. The claimants failed in the High Court and in the Court of Appeal, whose decision was reported at [2017] EWCA Civ 431.

The Supreme Court had to consider whether section 9 was available and obligatory, whether its use was compatible with the applicable EU Regulations, and whether EU law required an appeal on the factual merits from the official veterinarian’s decision.

1. Questions referred to the Court of Justice of the European Union. Lady Hale and Lord Sales delivered the judgment, with which Lord Hodge, Lady Black and Lord Lloyd-Jones agreed. The Supreme Court did not determine the claimants’ appeal. Resolution of the material EU-law issues required a preliminary ruling.

2. Judicial review was available to challenge an official veterinarian’s decision that a carcass was unfit for human consumption, the consequential refusal of a health mark, and a disposal notice. The High Court could intervene where the decision-maker acted for an improper purpose, applied the wrong legal test, reached an irrational decision, or lacked a sufficient evidential basis. It could occasionally hear oral evidence and make mandatory orders. Judicial review nevertheless remained a review of lawfulness rather than an appeal on the merits.

3. For the purpose of the reference, the Court assumed that the claimants’ construction of section 9 of the Food Safety Act 1990 was correct. On that assumption, a Justice of the Peace could determine whether a carcass failed to comply with food-safety requirements and could give a ruling capable of leading to compensation if a health mark ought to have been applied. The Court did not finally decide that question of domestic law.

4. The first referred question was whether Regulations (EC) Nos 854/2004 and 882/2004 precluded a section 9 procedure under which a Justice of the Peace decided the merits, using expert evidence presented by both sides, of whether a carcass failed to comply with food-safety requirements.

5. The second referred question was whether Regulation (EC) No 882/2004 required a right of appeal against an official veterinarian’s decision under article 5.2 of Regulation (EC) No 854/2004 that meat was unfit for human consumption. If it did, the Court also asked what approach an appellate body should take when reviewing the merits of that decision.

1. United Kingdom Supreme Court: Referred two questions of EU law to the Court of Justice of the European Union and did not finally determine the appeal: [2019] UKSC 36.
2. Court of Appeal: The claimants’ appeal failed: [2017] EWCA Civ 431.
3. High Court: The judicial review claim failed; no citation is stated in the judgment.