Food Standards Agency: Duty of Transparency

27 July, 2022

The Food Standards Agency (“FSA”) is a statutory body responsible for checking animals for disease both on arrival at a food business operator (“FBO”) where it is to be slaughtered and post-mortem. In order to fulfill its obligation to check the animals, the FSA entered into a contract with a private contractor, Eville & Jones GB Limited (“E&J”). The FSA is allowed to pass on the costs of performing such “official controls” (including certain of the costs of E&J) to FBOs, but it must provide clear details of how these costs are calculated to both FBOs and the public at large.

Whether the FSA had provided sufficient information was the subject of a challenge in R (Gill) v Food Standards Agency [2022] EWHC 1709 (Admin), supported by the main meat industry associations, the Association of Independent Meat Suppliers (“AIMS”), the British Meat Processors Association (“BMPA”) and the British Poultry Council (“BPC”). The FSA levied official control charges via an invoice against each of the Claimants, six FBOs. By way of judicial review, the Claimants challenged the invoices on the ground that the FSA had failed to comply with its express statutory duty of transparency in relation to the collection of official control charges.

In a judgment handed down on Thursday 7 July 2022, Mostyn J upheld the Claimants’ challenge. He found that the information provided by the FSA on its website and in other published material fell short of the level of transparency required of it under statute. For example, the Judge held that the information published by the FSA did not enable a “reasonably astute reader” to understand the apportionment of costs between different categories of individuals involved in the performance of official controls (namely, ‘Official Veterinarians’ and ‘Meat Hygiene Inspectors’). More generally, FBOs and members of the public could not check either the accuracy of the hourly charging rate calculations or whether the charges were limited to those permitted by law.

The Judge ordered the FSA to correct the breach of its duty of transparency by including additional explanatory material on its website.

The judgment is available here.

The Claimants were represented by Hugh Mercer QC and Naomi Hart, instructed by Tim Russ of Roythornes Solicitors.