R (Banks and Another) v Secretary of State for the Environment, Food and Rural Affairs
| Jurisdiction | England & Wales |
| Judgment Date | 15 March 2004 |
| Neutral Citation | [2004] EWHC 416 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 March 2004 |
| Docket Number | Case No: CO / 3010/ 2003 |
[2004] EWHC 416 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
THE HONOURABLE MR. JUSTICE SULLIVAN
Case No: CO / 3010/ 2003
MISS KAREN GOUGH (instructed by MARTIN TOLHURST PARTNERSHIP) for the CLAIMANTS
MISS MARIE DEMETRIOU (instructed by TREASURY SOLICITORS) for the DEFENDANT
Mr Justice Sullivan:
Introduction
In this application for Judicial Review the Claimants challenge the Defendant's decision, contained in a letter dated the 28th March 2003 to maintain in force a Movement Restriction Notice ("MRN") served under regulation 29A of the TSE (England) Regulations 2002 (the Principal Regulations) as amended by the TSE (England) (Amendment) (No 2) Regulations 2002 (the Amendment Regulations). The Amendment Regulations came into force on the 11th December 2002 and the MRN, which replaced an earlier notice served under the Principal Regulations before they were amended, is dated the 7th January 2003.
1. The Claimants own and run three farms in Kent: Westwood Farm, which is also their home, Forstall Farm, and Flintstones Farm. On 13th September 2002 when a notice was first served under the Principal Regulations they had a beef herd of some 247 cattle at Flintstones Farm. Their herd had been built up over a period of 24 years and was based upon a breeding herd of 150 cows / replacement heifers.
2. The original notice and the replacement MRN related to the herd at Flintstones Farm. In practical terms, for as long as the notices remained in force the entire herd was prevented from entering the human food chain, thereby negating its value as a beef herd. The notices have severely disrupted the Claimants' farming activities and caused them substantial financial loss.
3. The MRN was revoked on the 29th August 2003, after the Claimants had made their application for permission to apply for Judicial Review. During the course of the hearing, Miss Demetriou explained on behalf of the Defendant that the revocation was not a response to the proceedings, and did not represent any change of mind on the part of the Defendant. The Defendant had merely devised a different means of preventing the herd from entering the human food chain; by stamping the cattle's passports:
"Not for human consumption. Animal exposed to mammalian protein."
4. The Claimants contend that there was no legal basis for placing such a stamp upon the herd's cattle passports. They do not challenge the decision to serve the original notice on 13th September 2002, but they do contend that the replacement MRN should have been revoked long before the 29th August 2003, and in any event by the time when the matter was being reconsidered in detail in March 2003.
Background
5. The letter dated 28th March 2003 began with an explanation of the policy background underlying the service of the MRN:
"I would like to start by emphasising the considerable importance of the BSE-related feed ban. This is the primary means of bringing the disease under control, since exposure of cattle to mammalian protein has long been recognised as the main vector for the spread of BSE. Controlling the epidemic, which has had a devastating impact on the livestock industry and caused a harrowing fatal disease for humans, remains a top priority for the Government. Indeed, Ministers have recently stressed that:
'It is vitally important for public confidence and the continued decline of the BSE epidemic that the feed ban should remain the subject of rigorous enforcement. The Government will not hesitate to take tough action, based on the evidence, to protect human and animal health.' "
6. The Principal Regulations make provision for a wide range of measures to protect human and animal health against the threat posed by Transmissible Spongiform Encephalopathies ("TSEs"), including vigorous enforcement of the feed ban.
7. Any person who feeds cattle with a feeding-stuff in which he knows or has reason to suspect that any mammalian protein has been incorporated commits a criminal offence: see regulations 11 and 99.
8. The Principal Regulations give inspectors (as defined by regulation 3) various powers to (inter alia) make enquiries, carry out investigations, conduct searches, and serve notices restricting or prohibiting the movement of any "TSE susceptible animal" (defined by regulation 3 as any animal capable of being affected by a TSE) for the purpose of enforcing the regulations: see regulations 28, 79 and 80.
9. These powers were strengthened and supplemented by the Amendment Regulations as from the 11th December 2002. The Amendment Regulations explicitly adopted a precautionary approach. Thus, regulation 29A, inserted into the Principal Regulations by regulation 2 provides:
"29A. � (1) Where an inspector is satisfied he has reasonable grounds for supposing that any TSE susceptible animal has been fed mammalian meat and bone meal or mammalian protein or has had access to mammalian meat and bone meal or mammalian protein which is prohibited to be fed to it under these Regulations, he shall by notice in writing served on the owner or person in charge of the animal prohibit or restrict the movement of the animal from the premises described in the notice."
There is no right of appeal against a MRN, but paragraph (2) of regulation 29A provides that:
"The notice may be subject to conditions and may be amended, suspended or revoked by further notice at any time."
10. It will be noted that the test is not whether the inspector has reasonable grounds for supposing, but whether he is satisfied that he has such grounds. If he is so satisfied he must serve a MRN. Given this subjective element, the grounds upon which the Court can review an inspector's decision to serve a MRN are limited to those available in a conventional Wednesbury challenge. It is not for the Court to substitute its own view of whether there were "reasonable grounds for supposing�"
11. Although the statutory test is supposition, the parties are agreed that there is no difference, for practical purposes, between reasonable grounds for supposing, believing, thinking, or suspecting that a particular state of affairs exists. On behalf of the Defendant, Miss Demetriou accepted that the existence of the power in paragraph (2) to amend, suspend or revoke a notice meant that the Defendant was under an obligation to keep the justification for a MRN under review. Since it is an inspector who has to be satisfied of the circumstances justifying the service of a MRN, it is common ground that the power to serve a further notice amending, suspending or revoking the original notice must also be exercised by an inspector.
12. In their Claim Form the Claimants contended that the maintenance of the MRN infringed their rights to peaceful enjoyment of their property and possessions under Article 1 of the First Protocol to the European Convention on Human Rights. This was not developed as an independent ground of challenge by Miss Gough in her submissions on behalf of the Claimants, but it is an important part of the background to the Defendant's exercise of her powers under the Principal Regulations.
13. The power conferred by regulation 29A is fairly described as draconian: a large beef herd built up over many years has been effectively condemned upon the basis of no more than an inspector's suspicion that they have been fed prohibited material. However, there is no dispute that such a draconian power is in principle, provided that it is fairly exercised, a proportionate response to the very grave threat posed by BSE to livestock, and indirectly to humans.
14. In the absence of any right of appeal, the power conferred by regulation 29A might well have been a disproportionate interference with an owner's rights if the Defendant had been under no obligation to keep the need for a MRN, served upon the basis of an initial suspicion, under review in the light of new information. The regulation enables a fair balance to be maintained because the owner is always able to put forward a case that the notice should be amended, suspended or revoked.
15. When Parliament confers a power upon a public official it does so upon the premise that the power will be exercised fairly and reasonably. What fairness requires will depend upon the circumstances of the particular case. By way of example, the Principal Regulations do not require an inspector to give any reasons for serving a MRN. The lack of a formal procedural requirement to this effect is readily understandable: there may be a need for immediate action, and an inspector's workload may be very considerable at times of crisis, e.g. during an epidemic.
16. But this does not mean that an inspector who has served a MRN can simply refuse to give the owner of the livestock any explanation as to what his "reasonable grounds" were, once he is in a position to do so. If the owner is not told why the MRN has been served, his ability to make meaningful representations as to why the notice should be amended, suspended or revoked will be greatly impeded. He will not be able to ascertain whether the inspector was satisfied upon the basis of accurate and relevant information, or whether service of the MRN was within the powers conferred by regulation 29A.
17. The Defendant accepts that procedural fairness required her to provide the Claimants with an explanation of the decision to maintain the MRN. In her skeleton argument Miss Demetriou...
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