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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Agro Foods (Ashford) Ltd, R. (on the application of) v Food Standards Agency [2019] EWHC 2718 (Admin) (21 October 2019) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2019/2718.html Cite as: [2019] WLR(D) 581, [2020] PTSR 687, [2019] EWHC 2718 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
R (AGRO FOODS (ASHFORD) LIMITED) |
Claimant |
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- and - |
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FOOD STANDARDS AGENCY |
Defendant |
____________________
BRENDAN McGURK (instructed by Flint Bishop LLP) for the Defendant
Hearing date: 19 September 2019
____________________
Crown Copyright ©
MICHAEL FORDHAM QC:
Introduction
4. Withdrawal of controls
Where the Agency has had judgment entered against an operator of any premises for any sum which is payable to it under regulation 3(4) and the operator fails within a reasonable time thereafter to satisfy the judgment, the Agency may (regardless of any other legal remedy open to it) refuse to exercise any further controls at those premises until the judgment has been satisfied.
The issue which I have to decide is this. Do the words "at those premises" confine the power so that the Agency is entitled to refuse to exercise further controls only at premises where the current operator is the same operator against whom "the judgment" was entered? Or is the power in that respect unconfined so that, in an appropriate case, the Agency is entitled to refuse to exercise further controls even though there is a successor operator against whom no judgment has been entered? I will need to explain later the significance of the phrase "in an appropriate case".
2.— Interpretation
(1) In these Regulations—
"accounting period" means a period of less than a year determined by the Agency;
"the Agency" means the Food Standards Agency;
…
"controls" means those official controls performed by the Agency—
(a) pursuant to Regulation 854/2004, at slaughterhouses, game-handling establishments and cutting plants, for the verification of compliance with the provisions of Regulation 853/2004 in so far as they apply in relation to meat of domestic ungulates, meat from poultry and lagomorphs, meat of farmed game and meat of wild game;
(b) pursuant to Regulation 854/2004, at slaughterhouses, for the verification of compliance with the provisions of Council Regulation (EC) No 1099/2009 and the Welfare of Animals at the Time of Killing (England) Regulations 2015 in so far as they apply in relation to animals slaughtered there for human consumption;
(c) in relation to domestic ungulates slaughtered outside the slaughterhouse, pursuant to Chapter VI of Section I of Annex III to Regulation 853/2004;
(d) in relation to poultry slaughtered on farm, pursuant to Chapter VI of Section II of Annex III to Regulation 853/2004; and
(e) in relation to—
(i) farmed ratites,
(ii) farmed game mammals of the family Cervidae or the family Suidae, or
(iii) bison,
slaughtered at the place of origin, pursuant to Section III of Annex III to Regulation 853/2004;
"cutting plant" means an establishment which is used for boning and/or cutting up fresh meat for placing on the market and which—
(a) is approved or conditionally approved under Article 31.2 of Regulation 882/2004; or
(b) (although lacking the approval or conditional approval that it requires under Article 4.3 of Regulation 853/2004) was, on 31st December 2005, operating as licensed cutting premises under the Fresh Meat (Hygiene and Inspection) Regulations 1995 or the Poultry Meat, Farmed Game Bird Meat and Rabbit Meat (Hygiene and Inspection) Regulations 1995;
…
"establishment" has the meaning given to it in Article 2.1(c) of Regulation 852/2004;
[I interpose that Article 2.1(c) provides: "'establishment' means any unit of a food business"]
…
"food business operator" has the meaning given to it in Article 3.3 of Regulation 178/2002;
[I interpose that Article 3.3 provides: "'food business operator' means the natural or legal persons responsible for ensuring that the requirements of food law are met within the food business under their control"]
…
"game-handling establishment" means any establishment in which game and game meat obtained after hunting are prepared for placing on the market and which—
(a) is approved or conditionally approved under Article 31.2 of Regulation 882/2004; or
(b) (although lacking the approval or conditional approval that it requires under Article 4.3 of Regulation 853/2004) was, on 31st December 2005, operating as a licensed wild game processing facility under the Wild Game (Hygiene and Inspection) Regulations 1995;
…
"inspector" means an official veterinarian, an official auxiliary or any other person appointed by the Agency for the purpose of performing controls;
…
"official controls" shall be construed in accordance with the definition of "official control" in Article 2.1 of Regulation 882/2004;
"official controls charge" means the charge calculated in accordance with Schedule 2 and notified in accordance with regulation 3(1), (2) or (3);
…
"operator" means a food business operator who is carrying on a food business at any premises, or his duly authorised representative;
…
"premises" means any slaughterhouse, game-handling establishment, cutting plant, place that is outside the slaughterhouse for the purposes of Chapter VI of Section I of Annex III to Regulation 853/2004, farm or place of origin;
"slaughterhouse" means an establishment used for slaughtering and dressing animals, the meat of which is intended for human consumption and which—
(a) is approved or conditionally approved under Article 31.2 of Regulation 882/2004; or
(b) (although lacking the approval or conditional approval that it requires under Article 4.3 of Regulation 853/2004) was, on 31st December 2005, operating as a licensed slaughterhouse under the Fresh Meat (Hygiene and Inspection) Regulations 1995 or the Poultry Meat, Farmed Game Bird Meat and Rabbit Meat (Hygiene and Inspection) Regulations 1995
Regulation 3(1) and (4) provide as follows:
3. Charges
(1) The Agency shall, subject to the following provisions of this regulation, notify each operator of any premises at which controls have been exercised in any accounting period of an official controls charge in respect of those controls as soon as practicable after the end of that period.
…
(4) Any charge notified to an operator under paragraph (1), (2) or (3) shall be payable by him to the Agency on demand.
"Establishment" as a three-dimensional entity
46. … the definition of establishment is clear — a unit of a food business... In my view establishment denotes both premises and the manner in which those premises are being used by the food business operator. Thus approval is required for a food business or unit of a food business and not merely for the premises from which the business is conducted…
47. … the guidance is incorrect in suggesting that there is no need for approval if the new operator of an establishment continues the activities for which approval was granted in the past… It may be that the guidance has some application in the case where control changes with an existing food business operator, for example the transfer of ownership of a company with the company remaining as the food business operator. I express no concluded view on that. Here, however, there was a new food business operator, the appellant, which like a phoenix arose from the ashes of Roland International Seafoods Ltd, albeit that its guiding mind was the same, Mr Saldanha. In my judgment … the appellant would need approval.
Where the Agency has had judgment entered against an operator of anypremisesestablishment for any sum which is payable to it under regulation 3(4) and the operator fails within a reasonable time thereafter to satisfy the judgment, the Agency may (regardless of any other legal remedy open to it) refuse to exercise any further controls atthose premisesthat establishment until the judgment has been satisfied.
This wording, it was agreed, would have meant there was a restricted power, in the way that the claimant says regulation 4 is restricted. That is because "that establishment" would be apt to describe 'that same unique three-dimensional entity' which necessarily had CML as operator, and not the new and distinct entity operated by the claimant.
Four other points of common ground
The claimant's argument
i) First, Mr Hercock had these key points regarding the approach to interpretation. Regulation 4 needs to be objectively interpreted (citing R v Secretary of State for the Environment, Transport and the Regions, ex p Spath Holme [2001] 2 AC 349 at 396G-H), starting with the ordinary and natural meaning of the words. As a provision which relates to charging, a strict approach is appropriate (citing R (Jaspers Ltd) v Food Standards Agency [2013] EWHC 1788 (Admin) [2013] PTSR 1271 at §40); as it should be where the consequences are penalising and intrusive for economic interests. The Court is not concerned with the subjective intention of the drafter, nor is it appropriate to seek to identify the 'mischief' at which regulation 4 was directed by reference to documents which were not in the public domain (citing Bogdanic v Secretary of State for the Home Department [2014] EWHC 2872 (QB) at §§12-13).
ii) Secondly, Mr Hercock had these key points as to the correct interpretation of regulation 4. Regulation 2(1) provides that: "In these Regulations … 'premises' means any slaughterhouse …"; "'slaughterhouse' means an establishment … which … is approved or conditionally approved"; and "'establishment' has the meaning given to it in Article 2.1(c) of Regulation 852/2004 [namely: 'any unit of food business']". Since these definitions apply "[i]n these Regulations", the definition of "establishment" applies within the definition of "slaughterhouse", which in turn applies within the definition of "premises". In consequence, "premises" in regulation 4 means "establishment (unit of food business) for which approval has been granted". That is because the true meaning of "establishment" in the 2009 Regulations, derived from EU Regulation 852/2004, is the 'unique three-dimensional entity' described in Allan Rich (Lincoln) case, from which there is no reason to depart. The phrase "those premises" is therefore to be read as "that approved establishment", meaning the approved establishment of "that operator against whom that judgment was entered'. This is the ordinary and natural meaning of Regulation 4. It is supported by regulation 3(1) under which after the end of any accounting period the Agency has to "notify each operator of any premises at which controls have been exercised in [that] accounting period", which the Agency accepts would mean two different notifications for two different operators were there a change of operator and a new approval during the same accounting period. It is also supported by the phrase "until the judgment has been satisfied" in Regulation 4, because the judgment is against the defaulting operator and the drafter should not be taken to have intended that a successor operator could, as a non-party to a "judgment", then 'satisfy' that judgment entered against its predecessor.
iii) Thirdly, so far as any question of legal policy is concerned, Mr Hercock submitted as follows. The claimant's interpretation gives Regulation 4 an identifiable purpose and rationale addressing a discernible mischief (excusing the ongoing provision of official controls for an operator in default of charges leviable against it). So far as the unpaid charges and any defaulting predecessor company are concerned, these are a matter for pursuit under the law applicable to insolvency. Insofar as there are policy reasons to extend regulation 4 to cover the position of a successor company, the answer is that regulation 4 could have been so designed and could be amended for the future. Moreover, to give regulation 4 the Agency's suggested wider meaning would not be human rights compatible, as applicability to third party successor operators would lack the criteria needed (citing Al-Nashif v Bulgaria (2003) 36 EHRR 37 at §119) to protect against arbitrary exercise of power interfering with property rights (citing AXA General Insurance Ltd v HM Advocate [2012] 1 AC 868 at §§107 and 114).
My Analysis
46. In my view, whatever the position under the pre-2006 law, "establishment" no longer means premises. It may be that the use of the term "establishment" in some parts of the Community instruments, and the Code of Practice, connotes a physical location, premises or, in the case of fishery products, possibly a fishing vessel. However, the definition of establishment is clear — a unit of a food business. Read in the context of legal instruments designed to further food safety, and which place obligations on food business operators, establishment must mean something more than premises. An assessment merely of the suitability of the premises would not fulfil the food safety purpose of the EC Regulations. In my view establishment denotes both premises and the manner in which those premises are being used by the food business operator. Thus approval is required for a food business or unit of a food business and not merely for the premises from which the business is conducted. If the Community instruments had intended that the suitability of premises should be assessed, in my view they would have said so. There was a clear and intended change in the 2004 Community instruments from the 1991 directive.
Internal documents
12. The Secretary of State filed evidence in relation to the preliminary issue in the form of a witness statement of Susan Wale of the Home Office, dated 9 June 2014. Ms Wale provides information about the background to the enactment of the 1999 Act, the 2002 Act, the making of the Commencement Order and the operation of the carriers' liability regime contained in Part II of the 1999 Act. Since the preliminary issue is an issue of law, turning on the proper interpretation to be given to the Commencement Order, it was not necessary for Ms Wale to give oral evidence. Her evidence was unchallenged.
13. However, to a significant degree, Ms Wale's evidence was irrelevant to the issue of interpretation of the Commencement Order which the court has to determine. Ms Wale set out the background and internal departmental documents which made it clear that the policy intention of the Secretary of State when introducing the 2002 Act amendments of the 1999 Act and then commencing those amendments by the Commencement Order was indeed to continue the application of the carriers' liability regime in relation to immigration control zones in France, as well as in relation to United Kingdom territory. But in construing a legislative instrument such as the Commencement Order, just as in construing a legislative instrument in the form of an Act of Parliament, it is a basic constitutional principle that the citizen or person subject to the relevant law should have the means of access to any material which is said to provide an aid to construction of that instrument. It is only material which is in the public domain and of clear potential relevance to the issue of interpretation of a legislative instrument which can be treated as having any bearing on the proper construction of that instrument: see Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 , 614A (Lord Reid), 638D-H (Lord Diplock) and 645C-H (Lord Simon of Glaisdale); Fothergill v Monarch Airlines Ltd [1981] AC 251 , 279F-280B (Lord Diplock: "… the need for legal certainty demands that the rules by which a citizen is to be bound should be ascertainable by him (or, more realistically, by a competent lawyer advising him) by reference to identifiable sources that are publicly accessible …"); and R (Public and Commercial Services Union) v Minister for the Civil Service [2010] EWHC 1027 (Admin); [2010] ICR 1198 , [53]-[55]. The subjective policy intent of the Secretary of State or of those in his or her department is irrelevant to the question of interpretation before the court.
Adjournment
Conclusion