Eastside Cheese Company (A Firm) & Anor, R (on the application of) v Secretary Of State For Health

Factual and Procedural Background

On 20 May 1998, the Secretary of State for Health issued an emergency control order under section 13 of the Food Safety Act 1990, prohibiting all commercial operations involving cheese originating from Company B, a cheese producer in Somerset. This order was amended the following day and again varied on 10 July 1998 to exclude cheese manufactured on or after 11 July. The order effectively paralysed the cheese-making business of Company B and impacted related businesses, including Company A, a cheese processing firm in Surrey that relied on Company B’s products.

The emergency order followed an outbreak of serious food poisoning caused by the dangerous organism E-coli 0157, linked to cheese produced by Company B. Initial investigations began after a 12-year-old boy was hospitalised with E-coli 0157 infection traced to cheese supplied by Company B. Multiple positive samples of cheese contaminated with E-coli 0157 were identified, but the precise source and period of contamination remained uncertain.

Company A obtained leave to seek judicial review of the emergency control order, supported by Company B as an interested party. The High Court dismissed most grounds of challenge but found one ground on which the emergency control order was unlawful. The Secretary of State appealed, contesting the finding of unlawfulness, while Company A and Company B argued that additional grounds should have been upheld.

Legal Issues Presented

1. Whether the Secretary of State lawfully exercised powers under section 13 of the Food Safety Act 1990 to issue the emergency control order given the circumstances.
2. Whether the emergency control order was a proportionate response under Article 36 of the EC Treaty, balancing public health protection against economic restrictions.
3. Whether Company A should have been exempted from the emergency control order.
4. Whether the Secretary of State failed to consider the impact on compensation rights under section 9 of the Act.
5. Whether the emergency control order violated fundamental rights under Article 1 of Protocol 1 of the European Convention on Human Rights.

Arguments of the Parties

Secretary of State's Arguments

• The emergency control order was necessary due to the imminent risk of injury to health posed by contaminated cheese.
• Testing to destruction of all suspect cheese was practically impossible due to the volume and distribution of cheese held by Company A and others.
• Relying solely on local authorities under section 9 would be ineffective and risk inconsistent decisions, potentially allowing contaminated cheese onto the market.
• Considerations of administrative convenience or resource constraints were legitimate factors in deciding to use section 13 powers.
• No lawful basis existed to exempt Company A from the order given the nationwide scope and risk.
• The order was justified and proportionate under EC law and did not violate fundamental human rights given the urgent public health concerns.

Company A and Company B's Arguments

• The judge correctly found the emergency control order unlawful on the ground that the Secretary of State improperly took administrative convenience into account.
• The emergency order was disproportionate; lesser measures such as section 9 notices would have sufficed.
• Company A should have been exempted from the emergency control order because it had complied voluntarily, held only cheese produced before suspect dates, and no contamination was found in its stock.
• The Secretary of State failed to consider the impact on compensation rights under section 9.
• The emergency control order violated fundamental rights under Article 1 of Protocol 1 of the European Convention on Human Rights.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Cornwall Quarter Sessions ex parte Kerley [1956] 1 WLR 906	Justice of the peace acts administratively under food safety legislation; no appeal to Crown Court; judicial review is the remedy.	Confirmed that decisions under section 9 are administrative and subject only to judicial review, not appeal.
R v MAFF ex parte Roberts [1991] 1 CMLR 555	Principle of proportionality in food safety controls; section 13 powers only to be exercised in exceptional circumstances.	Supported the court’s view that less restrictive section 9 powers should be used if equally effective.
R v Minister of Agriculture, Fisheries and Food ex parte National Federation of Fishermen’s Organisations [1995] ECR I-3115	Judicial review of proportionality under Article 36 of the EC Treaty; margin of appreciation for national authorities.	Applied to assess the proportionality of the Secretary of State’s exercise of powers under section 13.
R v Chief Constable of Sussex ex parte International Trader’s Ferry Limited [1998] QB 477	Scope of judicial review and margin of appreciation in complex policy decisions.	Referenced regarding the role of national courts in reviewing proportionality but distinguished on facts.
R v Ministry of Agriculture, Fisheries and Food ex parte First City Trading Limited [1997] 1 CMLR 250	Distinction between Wednesbury unreasonableness and European proportionality review.	Used to clarify the appropriate standard of review for proportionality in this case.
Bosphorus Hava Yollari Turizm Ve Ticaret AS v Minister for Transport, Energy and Communications, Ireland [1996] ECR I-3953	Interpretation of Article 1 of Protocol 1 ECHR on peaceful enjoyment of possessions and state control.	Guided the court’s analysis of whether the emergency control order interfered unlawfully with property rights.
Holy Monasteries v Greece (1994) 20 EHRR 1	Compensation principles under Article 1 of Protocol 1 ECHR; deprivation of possessions.	Considered in assessing whether the order’s interference with property rights was justified and proportionate.
R v MAFF ex parte Fedesa [1990] ECR 1-4023	Principle of proportionality in EC law; justification of prohibitions on public health grounds.	Formed the basis for the court’s approach to proportionality under Article 36 of the EC Treaty.
Commission v Council [1996] ECR I-881	Review of discretionary powers; manifest error and misuse of power standards.	Supported the court’s assessment of whether the Secretary of State exceeded his discretion.
Upjohn v Licensing Authority [1999] 1 WLR 927	Limited judicial review of complex scientific assessments by national authorities.	Referenced to illustrate the margin of appreciation in public health decisions involving scientific evidence.

Court's Reasoning and Analysis

The court examined the factual matrix, including the severity of the E-coli 0157 outbreak, the uncertainty about the source and period of contamination, and the impracticality of effective sampling to ensure safety without total destructive testing. It accepted that the Secretary of State was entitled to conclude that all cheese from Company B should be regarded as unsafe and that there was an imminent risk of injury to health.

The court acknowledged the Secretary of State’s concerns about inconsistent local authority actions and the need for urgent, effective national intervention. It disagreed with the High Court judge’s characterization of these concerns as mere administrative convenience, finding them to be legitimate considerations in the context of the statutory scheme and public health protection.

The court upheld the principle that section 13 powers are exceptional and should be used only when less restrictive powers (such as section 9) are insufficient. However, given the scale, seriousness, and uncertainty of the contamination, the court found that the Secretary of State’s decision to issue the emergency control order was proportionate and justified under Article 36 of the EC Treaty.

Regarding the exemption claim by Company A, the court agreed with the High Court that making an exception would be inconsistent with the nationwide scope of the order and could lead to unfair discrimination among distributors. Company A had the option to seek ministerial consent for exceptions under the Act.

The court found no evidence that the Secretary of State failed to consider the impact on compensation rights, noting the absence of direct evidence on this point and the understanding that the emergency order was the only effective immediate measure.

On human rights grounds, the court concluded that the emergency control order constituted a lawful interference with peaceful enjoyment of possessions, justified by the urgent public health objective and proportionate to the risk posed.

Holding and Implications

Appeal allowed. The court set aside the High Court’s order declaring the emergency control order unlawful, except for the order as to costs. No order as to costs was made on appeal, and leave to appeal was refused.

The decision confirms the broad discretionary power of the Secretary of State under section 13 of the Food Safety Act 1990 to issue emergency control orders in circumstances involving imminent risk to public health, even where less draconian measures exist, provided that the decision is proportionate and justified on the available evidence.

The court upheld the principle that national authorities may consider practical enforcement realities and the need for urgent, coordinated action when issuing such orders. It also affirmed that exceptions to nationwide emergency orders are not required where they would undermine the statutory scheme and risk unfair discrimination among similarly situated parties.

No new precedent was set beyond the careful application of existing principles of administrative law, proportionality under EC law, and human rights balancing in the context of food safety emergencies.