R v Minister for Agriculture and Another

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMR JUSTICE LIGHTMAN
Judgment Date17 January 2000
Judgment citation (vLex)[2000] EWHC J0117-2
Docket NumberCO/4017/99
Date17 January 2000

[2000] EWHC J0117-2

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(THE CROWN OFFICE LIST)

Royal Courts of Justice

Strand

London WC2

Before:

Mr Justice Lightman

CO/4017/99

Regina
and
Minister for Agriculture
Ex Parte Inquinosa International

MISS P WATSON (instructed by Prettys Solicitors, Elm House, 25 Elm Street, Ipswich, Suffolk 1P1 2AD) appeared on behalf of the Applicant.

MR J TURNER (instructed by The Solicitor, Ministry of Agriculture, Fisheries and Food, 55 Whitehall, London SW1A 2EY) appeared on behalf of the Respondent.

MR JUSTICE LIGHTMAN
1

The applicants on this application for leave to challenge the decision of the Ministry of Food are manufacturers of lindane and lindane-based products. These products are organochlorine pesticides used as a seed treatment. The question has been raised whether lindane products are a health and safety hazard to operators and workers using products containing lindane. The Food and Environment Protection Act 1985 has as its objectives the protection of humans, animals, plants and the environment, humane methods of pest control and making pest control information available to the public. Part 3 of the Act establishes control over pesticides. The Control of Pesticide Regulations implements Part 3 and establishes a regulatory system of approvals and consents. The responsibility is vested in the Ministry of Agriculture and the Department of Health. Within the Ministry of Health executives, responsibility for the pesticide's approval for products used in agriculture lies with the Pesticides Safety Directorate ("the PSD"), an executive agency of the Ministry.

2

The PSD through specialist scientists both within and outside the PSD evaluate data, carries out a risk evaluation and proposes a regulatory decision. It then prepares a summary of the evaluation for consideration by the Advisory Committee on Pesticides, the ACP, and the advice of the ACP is then considered by the responsible ministers in deciding on the appropriate decision.

3

Lindane is a controversial product banned in some countries in the European Union but permitted to be sold and used in others. The European Commission is shortly due to make a ruling on what should be contained within a positive list of such products. Meanwhile, in October 1996, however, the Ministry of Agriculture commenced a review of existing approvals for the advertisement, sale, supply and storage of lindane and lindane-based products. The PSD asked the applicants, through the SCC, to provide data required for this purpose; the applicants supplied data. In May 1999 the PSD made a full written evaluation. This evaluation, together with the witness submissions of the applicants, was placed before the ACP.

4

The critical meeting of the ACP took place on 10th June 1999. The applicants applied for permission to take part in this meeting and to address the ACP, but it is clear from the evidence and the material documents before me that a decision was made by the chairman of the ACP that there should be no such attendance. However, at the request of the applicants a meeting took place on 25th June 1999 between representatives of the applicants, the PSD and a member of the ACP, Professor Shaw, to assess whether the applicants had any new evidence which ought to be considered by the ACP. Professor Shaw attended as a member of the ACP but a member, (as he made clear) who had no authority to make any decision; his position was merely that he could andwould report back anything relevant to the ACP.

5

This meeting took place. Prior to this meeting Professor Shaw had been supplied with detailed representations made in writing by the applicants and he took into account those representations and what he was told at the meeting; the purpose being that he would report back to the ACP and request them to reconsider their decision made at 10th June if the material supplied to him had any sufficient materiality to a decision in this regard. He reached the decision that the material supplied to him was in no way new evidence and in no way required any reconsideration of the decision reached on 10th June.

6

On the 28th June further representations were made by the applicants which were considered by the PSD. The PSD considered those representations and the earlier detailed representations seen by Professor Shaw, and reached the conclusion that this new data added nothing and therefore did not require to be referred to the ACP.

7

The views formed by the ACP of the 10th June were passed on to the minister and on 7th July on the advice of the ACP the minister decided with immediate effect to revoke the approvals for the advertisement, sales, supply, storage and use of lindane and lindane-based products which are the concern of the applicants.

8

The applicants'complaint is about the decision-making process and whether or not fair and proper procedures were followed by the ACP. Their complaints were initially made in June and they had the advice of counsel at least from 28th June 1999. On 8th July the applicants wrote to the respondents threatening judicial review proceedings, requesting answers to a number of questions and spelling out the need, if judicial review proceedings were to be launched, to do so promptly. Replies to their requests were supplied on 16th July. Proceedings, however, were only launched on 7th October 1999, the last day before the expiration of the three-month period time limit for the commencement of judicial review proceedings. Meanwhile it appears from the evidence submitted by the respondents, in reliance on the decision to revoke the approvals the Home-Grown Cereal Authority had invested sums in research into alternative control measures for oilseed rape. In particular, in August 1999 they initiated evaluation trials to find the best option for control of pests in oilseed rape.

9

An unfortunate feature of this case is that, though thematter originally came before the court on 4th November 1999 (when the court ordered that the application should be renewed orally) and the date was fixed for hearing today on 30th November, the affidavit in answer was only served on Friday and...

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