J. Kelly & Sons Limited V. The Meat And Livestock Commission For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord Hamilton |
| Date | 07 August 2001 |
| Docket Number | P1087/00 |
| Court | Court of Session |
| Published date | 07 August 2001 |
| OUTER HOUSE, COURT OF SESSION | |
| P1087/00
| OPINION OF LORD HAMILTON in the Petition of J KELLY & SONS LIMITED Petitioners; against THE MEAT AND LIVESTOCK COMMISSION Respondents: for Judicial Review ________________ |
Petitioners: Glennie, Q.C., Lake: Maclay Murray & Spens
Respondents: C M Campbell, Q.C., MacColl: Biggart Baillie
7 August 2001
[1]For many years prior to January 2000 the petitioners owned and operated an abattoir at premises in Larkhall, Lanarkshire. Until 1996 livestock slaughtered there included animals, the flesh of which was intended for sale for human consumption.
[2]The respondents are a body corporate with perpetual succession established under Part I of the Agriculture Act 1967 with the general duty of promoting greater efficiency in the livestock industry and the livestock products industry and with certain particular functions specified in Schedule 1 to that Act. Under section 13(1) of the Act the respondents were authorised to submit to relevant Ministers a scheme (referred to as a "levy scheme") for the imposition of charges "for enabling the Commission to meet their expenses (including any sums to be paid into their reserve fund) so far as not met in any other way, and for the recovery of such charges by the Commission in such manner and from such persons as may be specified in the scheme". Section 13(2) provided -
"A levy scheme shall specify the classes or descriptions of persons on whom or from whom charges may be imposed or recovered, but a class or description so specified shall include only persons who are within the following provisions of this subsection, that is -
(a) persons engaged in the production, marketing or distribution of livestock, or
(b) persons engaged in the production, processing, manufacture, marketing or distribution of livestock products, or
(c) persons (including local authorities) having the control and management of slaughterhouses in which livestock are slaughtered,
including auctioneers, market authorities and other persons concerned with the marketing of livestock and livestock products otherwise than as buyers and sellers ...".
By section 25(2) of the Act "slaughterhouse" was defined as having, in Scotland, the meaning given by the Slaughterhouses Act 1954. Section 16 of the latter Act defined "slaughterhouse" as meaning "any premises used for slaughtering animals the flesh of which is intended for sale for human consumption ...". The definition of "slaughterhouse" in section 25(2) of the 1967 Act was amended by section 59(1) and Paragraph 4 of Schedule 3 to the Food Safety Act 1990 to substitute, for Scotland, a reference to the definition of "slaughterhouse" given by section 22 of the Slaughter of Animals (Scotland) Act 1980. The latter section provided that "slaughterhouse" means "any building or place used for the killing of animals the flesh of which is intended for sale for human consumption".
[3]The respondents over time submitted various levy schemes to the relevant Ministers. One such scheme was duly confirmed by The Meat and Livestock Commission Levy Scheme (Confirmation) Order 1987 (1987 S.I.1303), which revoked certain earlier arrangements. The 1987 Order was made on 23 and came into force on 24 July 1987. It remained in force, subject to variations from time to time thereafter, until at least January 2000. None of these variations is material for present purposes.
[4]The levy scheme, which applied throughout Great Britain, was set out in the Schedule to the 1987 Order. By paragraph 2 of that Schedule it defined "slaughterer" as meaning "any person (including a local authority) having the control and management of a slaughterhouse in which livestock are slaughtered ..." and provided that a "slaughterhouse" had, in Scotland, the meaning given by section 16 of the 1954 Act. So far as appears, no variation of the Order has substituted the meaning of "slaughterhouse" given in section 22 of the 1980 Act for that in section 16 of the 1954 Act but the difference in wording is not important for present purposes.
Paragraph 3 provided -
"Slaughterers and exporters are specified as the classes of persons on whom charges may be imposed under this Scheme".
Paragraph 4 provided -
"(1) All charges leviable under this Scheme are for the purpose of enabling the Commission to meet their expenses (including any sums to be paid into their reserve funds) other than expenses which are to be met in some other way: they shall be leviable by reference -
(a) to livestock slaughtered in a slaughterhouse, or
....
and shall be recoverable by the Commission from the slaughterer having the control and management of the slaughterhouse where the livestock are slaughtered ... .
(2) The maximum charge in respect of each head of livestock for which charges are leviable under this Scheme shall comprise a sum in respect of general expenses and may comprise a sum in respect of species promotion expenses, not exceeding the following:- "
[Certain maximum charges in respect of different heads of livestock and in respect of general expenses and of species promotion expenses are then set out]
"(3) Subject to sub-paragraphs (1) and (2) of this paragraph, the Commission are authorised to levy such amounts as they think fit from time to time or to suspend the levy or any of the charges comprised therein for any period:
Provided that no charges shall be levied under this Scheme in respect of livestock slaughtered under the Animal Health Act 1981 or any order or arrangements made thereunder or in accordance with any scheme under section 106 of the Agriculture Act 1970."
Paragraph 5 provided:-
"(1) Any charge duly levied under this Scheme shall, subject as mentioned in sub-paragraph (3) of this paragraph, be payable to the Commission on such date or dates and at such place or places as the Commission may from time to time require and shall be recoverable as a debt due to the Commission from the slaughterer ...
(2) (a) Subject to sub-paragraph (b) of this paragraph, -
(i) where the slaughterer slaughters livestock which he has purchased, or of which he has agreed to purchase all or part of the carcase after slaughter, the Commission may determine that there shall be recoverable as a debt due to him from the person from whom he has purchased the livestock or has agreed to purchase all or part of the carcase (as the case may be) one half of the sum attributable to general expenses and the whole of any sum attributable to species promotion expenses:
Provided that where the purchase was at auction the slaughterer is hereby authorised to recover from the auctioneer instead of from the person from whom he purchased;
(ii) where the slaughterer slaughters livestock on the instructions of another person (not being livestock which the slaughterer has purchased or of which he has agreed to purchase all or part of the carcase after slaughter), the Commission may determine that there shall be recoverable as a debt due to him from that person the whole of any sum paid by the slaughterer under this Scheme by reference to that livestock.
(b) Sub-paragraph (a) of this paragraph shall apply only where the person from whom the slaughterer is authorised to recover is a person engaged in the production, marketing (including marketing by a person concerned otherwise than as a buyer or seller) or distribution of livestock or livestock products.
(3) The slaughterer shall be entitled to make deductions from his payments to the Commission in respect of his expenses in exercising his right of recovery under sub-paragraph (2) of this paragraph but such deduction shall not exceed one penny for each head of livestock slaughtered or such higher amount as the Commission may from time to time determine as being reasonable.
(4) Where the slaughterer defaults in payment to the Commission of any sum due from him under this Scheme and would, if he had made payment, have been authorised to recover such sum from another person in accordance with sub-paragraph (2) of this paragraph, the Commission are authorised, if they think fit, to recover directly from the last-mentioned person as a debt due from him to the Commission the amount which would have been payable indirectly if the default had not occurred:
Provided that this sub-paragraph shall not apply where the last-mentioned person satisfies the Commission that he has made the payment to the slaughterer.
(5) Where in the opinion of the Commission (whose decision shall be final and conclusive) any sum which a slaughterer is authorised by sub-paragraph (2) of this paragraph to recover from another person ought reasonably to be treated as irrecoverable by the slaughterer, the Commission shall afford him relief either by permitting him to deduct such sum from payments to the Commission or by way of refund, whichever the Commission shall decide".
[5]In May 1996, against concerns about the risk to humans of bovine spongiform encephalopathy (BSE), the United Kingdom government introduced a ban on, among other things, the use of cattle over the age of 30 months for food, feed, cosmetic or pharmaceutical purposes. In that month the Government introduced the Over Thirty Months Scheme ("the OTMS") to provide for the slaughter and destruction of cattle which, as a result of the ban, could no longer enter the food or feed chain. The Intervention Board for Agricultural Produce ("the Intervention Board") was charged by the Government with operating the OTMS. The Intervention Board contracted with operators of commercial abattoirs to effect the slaughter and destruction of animals which met the criteria of the OTMS. Certain commercial arrangements were made between the Intervention Board and bodies operating commercial abattoirs.
[6]The petitioners aver that from May 1996 until January 2000 they participated in the OTMS as a dedicated approved abattoir. Subject to a question as to the exact commencement date of the petitioners' participation, this...
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