R v Ministry of Agriculture Fisheries and Food ex parte Live Sheep Traders Ltd and Others

I will ask Mr Justice Popplewell to give the first judgment.

MR JUSTICE POPPLEWELLThe Parties: The first applicant is a company which was formed in June 1990. Its sole trade has been the live export of British sheep to destinations in Europe. The second Applicant is an associated corporation based in the Republic of Ireland and is involved in a similar trade. The third Applicant has worked in the livestock industry for about thirty years. His experience has built up between 1964 and 1978. Since the formation of the first Applicant, the third Applicant has been the principle consultant.

The Respondents are the Ministry of Agriculture Fisheries and Food (MAFF) and are responsible for the export licensing scheme for live sheep to the European community countries from the United Kingdom and were responsible for the introduction and implementation of the Export of Animals (Protection) Order SI 1981 No 1031.

The Applications: The Applicants challenge a number of decisions taken by MAFF in December 1992 which either refused to grant licences to the Applicants or, alternatively, to grant licences subject to certain requirements and conditions. Form 86A is undated, but it appears to have been signed in February or March 1993. It seeks relief as follows:

"(1) A declaration that the imposition of a licensing scheme in respect of the export of live sheep from the United Kingdom to an EEC member state is contrary to law.

(2) A declaration that the refusals to grant the applicants licences in respect of the three applications dated 1 December 1992 No…..are contrary to law.

(3) A declaration that the requirements that were imposed as a condition for the grant of licences in respect of applications numbered….are contrary to law."

Thus the decision of MAFF were attacked on two grounds. Firstly, that the licensing scheme as devised, implemented and operated by the Respondent Ministry was incompatible with Article 34 of the European Community Treaty. Secondly, that the licensing scheme as devised, implemented and operated by MAFF incorrectly transposed the relevant EEC Directives into domestic law and was incompatible with the said Directives.

There was, thus, an attack on the legality of the scheme introduced by MAFF in 1981. It involved, firstly, the question whether the licensing scheme was compatible with Article 34 (1) of the EC Treaty which provides:

"Quantitative restrictions on exports and all measures having an equivalent effect shall be prohibited between Member States."

Secondly, whether recourse to Article 36 was permissible. Article 36 in its material part reads:

"The provisions of Article 30 —34 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants…."

The third question is whether recourse to Article 36 is permissible when the field is occupied by EC legislation, sometimes called by those experienced in this area as the "fully occupied field". Finally, the Applicants would argue that the licensing scheme as devised, implemented and operated did not represent a correct transposition of the EC Directives.

The relevant facts: Because of the course which this case took in argument, it is only necessary to set out a summary of the relevant facts. The order which is subject to challenge was made July 1981 and came into effect on 29 September 1981. It continued in existence without ever being challenged until 1 January 1993. Then there came into force Council Directive 91/628/EEC which repealed the pre-existing Council Directive 77/489/EEC and 81/389/EEC, and the Welfare of Animals During Transport Order 1992 SI 1992 3304 which disapplied the Export of Animals Protection Order 1981 SI 1981 1051 in relation to the export of animals to another Member State of the EEC. The date for the implementation of the 1991 Directive was known from 11 December 1991, the date of its publication and the Directive was implemented on time by the 1992 order. The third Applicant has been informed of this by the Ministry and received a letter dated 10 December 1992 summarising the effect of the new order. Thus, the legislation under attack had been repealed and replaced more than two months before the Applicants' application.

The applications in respect of the second and third part of the claim are therefore no longer of any practical advantage to the Applicants. It is clear that the declarations were sought for two reasons. Firstly, because the Court should seek to protect individuals against a public body, and if MAFF have been party to an illegal regime the court ought to say so. Secondly, because, as it is put in the Applicants' skeleton argument, the resolution of the legality or otherwise of the old licensing scheme is a necessary pre-requisite to the determination of whether the Applicant may have further causes of action against the Respondent, for example claims in damages or for malicious prosecution.

The claim for malicious prosecution is based on the fact that as a result of surveillance conducted by officers of the RSPCA in September 1991, it was discovered that a consignment of lambs en route from Calais to Italy had never been off-loaded, fed or watered at any stages, despite the fact that the journey lasted some 43 hours. On another occasion the sheep went 47 hours without sustenance. In the result, on 26 February 1992, a total of 79 criminal charges were laid against the first and third Applicants in respect of making a false declaration to the effect that arrangements had been made for consignments of sheep to be fed and watered at a particular lairage in Bourges, France. The criminal charges were heard by a stipendiary magistrate who, after hearing the facts and argument on European law, convicted the applicants. The matter then went by way of appeal to the Crown Court and, for reasons which are in dispute between the parties, the appeal was allowed. Thus, the first element in a potential claim for malicious prosecution, namely acquittal, exists.

During the course of the criminal proceedings certain documents were disclosed by MAFF to the Applicants which showed that in 1984 and 1985 there was considerable doubt among the officials at MAFF as to the legality of the regime. It is only necessary to set out shortly one or two of those documents. On 22 March 1985, a Mr A R Burne, in the employment of MAFF, wrote to Guy Stapleton at the Cabinet Office a letter about Article 169 proceedings then contemplated by the Commission. In the course of that letter he said:

"We are in no doubt that should the commission press this case in the European Court we would lose. As you know specific licensing —the method we chose in our 1981 Order to implement our obligations under the two community directives governing the welfare of animals on transit, is an anathema to the Commission. There are other requirements in the body of the order itself and in the licences granted under it which could also be swept away….."

"We have taken up aspects of the Societies' trails with the French veterinary authorities. They have consistently reported that the animals arrive in good shape at their final destination. Not surprisingly, they see no welfare reasons for consignments to stop en route, particularly since the Directives permit animals to travel on international journeys for up to 24 hours plus a 'reasonable period' thereafter."

On 28 June 1985 Mr Burne wrote a memo after a visit from the

European Commissioner. It said:

"The Commission have taken the narrow and doctrinaire view that we have no right under the Treaty to licence the trade as the administrative means of ensuring that all the pre-export welfare conditions and the two Community Directives are met. Separately, however, the RSPCA has submitted more recently a detailed though essentially faulty complaint to the commission arguing we have not fully implemented our obligations and are doing too little to protect animal welfare."

On 16 October 1985 Mr Ryder wrote a memorandum ending up with

this cri de coeur:

"It is painfully clear to me that as long as we have our 18 hour rule we shall only be able to answer questions such as Mr Mews' evasively and unconvincingly. I hope there is no suggestion that we should stand firm on this rule. But if there is I would be grateful if somebody could let me know how I am expected to remonstrate with exporters when feeding declarations are not fulfilled, defend the rule's operation to the RSPCA, explain it to Mr Wintergerst and ensure at the same time we are not taken to the European Court."

Article 169 of the European Treaty reads as follows:

"If the Commission considers that a Member State has failed to fulfil an obligation under the Treaty, it should deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the...