The future of meat inspection charges in our abattoirs has been thrown into doubt, after the High Court found that the Food Standards Agency’s charging regime for official controls is ‘unlawful’.
The FSA is responsible for carrying out food hygiene and safety checks (‘official controls’) at abattoirs and operators are required by law to contribute towards the cost of those controls. The current annual cost of those controls is £64 million, but this year the charges to industry have increased by 24%.
In the judgment on a judicial review brought by the Association of Independent Meat Suppliers (AIMS) and British Meat Processors Association (BMPA), Mrs Justice Dias rules that the FSA has been levying these charges unlawfully.
The FSA has accepted that the Court must quash the hourly rates for both official controls and enforcement as well as the Cost Data Slides providing information on how those rates were calculated. The judge will now hear further argument on the precise terms of the court’s order.
In practice the FSA contracts with profit-making companies to deliver official controls and then micro-manages that delivery. “Thus, contractors are given responsibility for carrying out the controls without formal delegation; a recipe for inefficiency when charges are time-based and profits of the contracted companies are dependent on maximising the hours charged for,” AIMS and BMPA said in a joint statement.
Industry has long complained about being ‘burdened with the cost of the inefficiency’ caused by this dual management, neither element of which the judge found could be charged for.
The meat industry bodies said the judgment has provided helpful clarification on what the FSA can lawfully charge for, both in terms of relevant activities and the personnel whose time can be charged for – relating to the FSA seeking to charge for ‘numerous improperly qualified veterinarians employed by its private contractors in relation to the controls that industry has long complained were not being carried out to a high standard’, they said.
“It is clear substantial change is needed in the way the FSA conducts official controls and levies charges to industry,” the organisations added.
Refused to engage
Peter Hewson, AIMS’ veterinary director, said: “I have been telling the FSA for many years that they were charging industry unlawfully but for the last two years they have totally refused to engage saying they had to follow their board’s instruction to focus on reducing the discount.
“The judgment makes clear that the FSA Board had got it horribly wrong, FSA has been levying unlawful charges on the industry, and the discount was not a subsidy but cover for that unlawful tax.”
Jason Aldiss, AIMS’s executive director, said the judgment must now mark ‘the beginning of a complete reset in the relationship between the regulator and the meat industry, founded upon legality, proportionality, transparency and scientific risk-based regulation’.
BMPA CEO John Powell welcomed the judge’s findings, which he said ‘recognise and have exposed long-standing weaknesses in the FSA’s charging policy’.
“We will now work closely with the FSA to ensure a fairer and more transparent system for the delivery of official controls can be quickly implemented going forward. The burden of FSA charges on our industry is significant when we are responsible for ensuring the country is fed, safeguarding food security and upholding the highest standards of food safety and animal welfare,” he said.
Tim Russ and Harry Russell of Roythornes LLP instructed Gordon Nardell KC and James Burton in the case.Harry Russell of AIMS’s solicitors Roythornes LLP said: “The dust has yet to settle but this is a damning indictment of long-standing FSA practice. We can only hope that this will lead to meaningful change to ensure quality food hygiene and safety checks under a system supporting our home-grown industry and giving consumers affordable and varied choice.”
The NFU provided support for the case. It described the ruling as ‘a huge victory for all abattoirs, but particularly those small and medium sized businesses and the livestock farmers that supply them’.
NFU President Tom Bradshaw said: “Today’s ruling is a hugely significant outcome for the livestock sector and is a brilliant result for the meat industry, the NFU and our members.
“The NFU has long‑held the view that these charges on abattoirs risk seriously impacting the wider livestock sector. It has consistently urged government to carry out a full review of the FSA’s charging regime to ensure that charges are fair and equitable and do not disadvantage UK businesses.”
FSA response
The big question now is how this play out in terms of future FSA charging policies. FSA Chief Executive, Katie Pettifer said the agency has ‘carefully considered’ the court’s judgment.
“While the ruling does not challenge the principle that we can charge for meat inspection, we are disappointed with its conclusions about how charges are calculated. We acted in good faith in calculating our charge rates and in presenting the information we publish about them and are seeking leave to appeal the judgment,” she said.
“While the majority of our charges will not be in dispute, the ruling does create some uncertainty over some elements. We know businesses will want clarity on what this will ultimately mean in practice, and we will provide further information as quickly as the legal process allows.
“Food safety is non-negotiable. Our Official Vets and Meat Hygiene Inspectors carry out essential work every day that protects public health, upholds animal welfare, and underpins the £11.3 billion meat industry. That will not change.”