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OUTER HOUSE, COURT OF SESSION
[2008] CSOH 18
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P126/08
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OPINION OF LORD MACPHAIL
in the Petition of
(FIRST) THE INFANT
AND DIETETIC FOODS ASSOCIATION LTD;
(SECOND) JOHN WYETH
AND BROTHER LTD;
(THIRD) NUTRICIA
LTD; and
(FOURTH) H J HEINZ
LTD
Petitioners;
for
Judicial Review of
a decision by the Scottish Ministers to make and lay before the Scottish
Parliament the Infant Formula and Follow-on Formula (Scotland) Regulations
2007
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Petitioners: Howie, Q.C., M.V. Ross; Maclay Murray & Spens LLP
Respondents: J. Mure;
M. Sinclair, Solicitor to the Scottish Executive
Interested Party: Lindsay;
C. Mullen, Solicitor to the Advocate General for Scotland
24 January 2008
Introduction
[1] This
is a motion for the interim suspension
of a Scottish statutory instrument. On 24
January 2008, having heard parties on the motion on 22 and 23
January, I refused the motion and stated that I would issue an Opinion in due
course.
[2] The
motion is made in the course of proceedings in an application for judicial
review of a decision by the Scottish Ministers to make and lay before the
Scottish Parliament the statutory instrument in question, which is the Infant
Formula and Follow-on Formula (Scotland) Regulations 2007 (SSI 2007, No 549: "the 2007 Regulations").
The first petitioners are a trade association representing, among
others, manufacturers in the United Kingdom
of infant formula ("IF") and follow-on formula ("FOF") which are foods for
babies. I was informed that IF is
powdered milk for babies up to the age of six months, while FOF is a similar
product which is not suitable for babies below that age. The second, third and fourth respondents are
manufacturers of such products. The
petitioners seek suspension, suspension ad
interim, and reduction of the 2007 Regulations. The Scottish Ministers are the respondents,
and the Advocate General for Scotland
and the Lord Advocate are named in the petition as persons having an interest.
[3] At
the first order stage on Friday 18
January 2008 the petition, which was then at the instance of the
first petitioners only, was presented to Lord Reed. Both the petitioners and the respondents were
represented by counsel. His Lordship
ordered intimation and service, and appointed a first hearing to take
place. The date of the hearing was left
blank in the interlocutor. I understand
that it has been proposed that the first hearing should take place on 7 February 2008, but the precise date
has not yet been determined. It is to be
expected, however, that the first hearing will take place in early course. At the hearing before Lord Reed the
petitioners' counsel made a motion for interim
suspension of the 2007 Regulations which was opposed by counsel for the
respondents. His Lordship appointed that
opposed motion to be heard on Tuesday 22 and Wednesday 23 January 2008.
[4] The
motion was called before me on Tuesday
22 January 2008. Counsel appeared for the petitioners, for the
respondents and for the Advocate General for Scotland,
the latter having lodged a minute intimating his intention to enter
appearance. I granted an unopposed
motion by the petitioners' counsel to allow the petition to be amended by
adding, among other things, the names of the second, third and fourth
petitioners as parties to the proceedings.
At a later stage of the hearing I granted a further unopposed motion by
the petitioners for leave to amend by adding a plea-in-law to the effect that,
the 2007 Regulations as promulgated having been ultra vires the respondents, they should be suspended et separatim reduced. I heard detailed submissions by senior
counsel for the petitioners and counsel for the Scottish Ministers on 22 and 23 January 2008. Counsel for the Advocate General for Scotland
adopted the submissions of counsel for the Scottish Ministers. On 24
January 2008, as I have noted, I refused the motion and said I
would issue an Opinion later.
[5] The
2007 Regulations are intended to give effect to Commission Directive
2006/141/EC on infant formulae and follow-on formulae ("the Directive") and to
a Council Directive which is not material for present purposes. The Directive requires the Member States to
adopt rules which comply with its provisions as to the composition and
labelling of IF and FOF. In Great Britain
these matters had hitherto been regulated by the Infant Formula and Follow-on
Formula Regulations 1995 as amended ("the 1995 Regulations") which had
implemented an earlier Directive. It was
decided that the 2006 Directive should be implemented by four virtually identical
sets of Regulations, one for each of Scotland,
England, Wales
and Northern Ireland. The Food Standards Agency, a body established
by section 1 of the Food Standards Act 1999 to protect public health and the
interests of consumers in relation to food, conducted in each of these four
parts of the United Kingdom
a separate consultation exercise relative to the set of draft Regulations
proposed to extend to that part. However, the transitional provisions which
were enacted in the four sets of Regulations differed from those in the draft
Regulations. The petitioners complain
that they were not consulted about the alteration of the transitional
provisions and that the enacted transitional provisions not only are inconsistent
with the Directive but also, unlike the draft transitional provisions, expose
them to criminal liability in respect of the labelling of their products. I shall notice their case in more detail
below.
[6] The
first petitioners have already raised proceedings in England
and in Northern Ireland.
In the High Court in London on Friday 11 January 2008 Forbes J made
an order whereby the implementation of the Regulations applicable in England
and Wales was
suspended. I was informed that Forbes J
made that order in chambers without hearing counsel and that an expedited
hearing is to be held before the end of February 2008. On Friday
18 January 2008 in the High Court in Belfast Weatherup J granted an
order suspending the operations of the Regulations applicable in Northern
Ireland until such time as the English
proceedings have been finally determined.
I understand that his Lordship made that order after a brief oral
hearing. Neither Judge issued any
reasons for his decision.
The statutory provisions
[7] The
transitional provisions in the Directive are contained in articles 17 and 18,
which provide, so far as material:
"Article 17
The new
requirements set out in Article 7(1) and (2) of this Directive [which are
concerned with the compositional criteria for IF and FOF] shall not apply
mandatorily to dietary foods for special medical purposes intended specifically
for infants [ . . . ] until 1 January
2012.
Article 18
1. Member States shall adopt and publish,
by 31 December 2007 at the latest, the laws, regulations and administrative
provisions necessary to comply with Articles 2, 3 and 5 to 17 [which include
those dealing with labelling] and Annexes I to VII. [. . . ]
They shall apply
those provisions in such a way as to:
-
permit trade in products complying with this Directive
by 1 January 2008 at the
latest,
-
without
prejudice to Article 17, prohibit, with effect from 31 December 2009 trade in
products which do not comply with this Directive. [ . . . ]"
[8] In
the enacted 2007 Regulations sections 15 to 19 deal with the following matters:
15, the naming of IF; 16, the naming of FOF; 17, the labelling of IF; 18, the
labelling of FOF; and 19, the avoidance, by means of labelling, of the risk of
confusion between IF and FOF.
[9] Regulation
3 prohibits the marketing of IF or FOF unless certain conditions are met. It
provides:
"(1) No person shall market infant formula
which contravenes or fails to comply with regulation 5, 6, 8, 10, 11, 12,
14(1), (2) or (3), 15, 17 or 19.
(2) No person shall market follow-on formula
which contravenes or fails to comply with regulation 5, 7, 9, 10, 11, 12,
14(1), (2) or (3), 16, 18 or 19."
The Regulations whose numbers I
have italicised did not appear in the draft Regulations in respect of which the
consultation exercises took place. I
have drawn attention to their subject-matter in the previous paragraph.
[10] Regulation 28 deals with offences and enforcement. It provides:
"(1) Any person who contravenes or fails to
comply with any of the provisions contained in regulations 3 [and certain other
regulations] is guilty of an offence and shall be liable on summary conviction
to a fine not exceeding level 5 on the standard scale.
(2) Each food authority [that is, each local
authority] shall enforce and execute these Regulations in its area."
[11] Regulation 31 provides transitional arrangements. Regulation
31(1) revokes as from 11 January 2008
certain provisions of the 1995 Regulations in so far as they extend to Scotland,
including those relative to labelling, while the remainder of the 1995
Regulations continue unrevoked until 1
January 2010 (regulation 31(2) and Schedule). Regulation 31(3) provides in part:
"(3) No person commits an offence under
regulation 28(1) consisting of a contravention of or a failure to comply with -
(a) regulation 3(1), where -
(i) the action that would otherwise
constitute the offence consists of marketing infant formula which contravenes
or fails to comply with regulation 5, 6, 8, 10, 11, 12 or 14(1), (2) or (3),
and
(ii) there is no offence under regulation
22(1) of the 1995 Regulations consisting of a failure to comply with regulation
2(a)(i) or (ii) of those Regulations;
(b) regulation 3(2), where -
(i) the action that would otherwise
constitute the offence consists of marketing follow-on formula which
contravenes or fails to comply with regulation 5, 7, 9, 10, 11, 12 or 14(1),
(2) or (3), and
(ii) there is no offence under regulation
22(1) of the 1995 Regulations consisting of a failure to comply with regulation
3(a) or (b) of those Regulations; [ . . . ]"
[12] It will be observed that these provisions do not refer to any
contravention of any of regulations 15 to 19, which are among those specified
in regulation 3. Thus, a manufacturer
who contravenes any of the 2007 Regulations relative to labelling may be said
to be exposed to criminal liability with effect from 11 January 2008, the date when the Regulations
came into force. In the draft Regulations, on the other hand, the provisions of
the 1995 Regulations relative to labelling were to remain unrevoked until 1
January 2010 (regulations 1(b) and 31(1) and (2)), and it was provided that no
offence consisting of a contravention of regulation 3(1) or (2) would be
committed where there had been no contravention of the relevant provision of
the 1995 Regulations (regulation 31(3)).
Under the draft Regulations, accordingly, notwithstanding the coming
into force of the draft Regulations a manufacturer could with impunity continue
to comply with the 1995 Regulations as to labelling until 31 December 2009.
The petitioners' submissions
[13] The petitioners' senior counsel moved for suspension ad interim of the 2007 Regulations in
their entirety. He explained that at
this stage he did so at common law and did not found on section 102 of the
Scotland Act 1998. He also observed that
the 40-day period during which the Regulations were subject to annulment, which
had begun when they were laid before the Scottish Parliament on 6 December 2007, had not yet expired
(Food Safety Act 1990, section 48; Scotland Act 1998 (Transitory and
Transitional Provisions) (Statutory Instruments) Order 1999 (SI 1999, No 1096),
articles 11, 13).
[14] Counsel presented three arguments. First, he submitted that the Regulations were
inconsistent with the Directive. The
argument ran as follows. Article 18
permitted trade in products complying with the Directive by 1 January 2008, but also provided
that, apart from the special case referred to in article 17, trade in products
which did not comply with the Directive was prohibited "with effect from 31 December 2009". The object of that provision was to provide
manufacturers with a "lead-in" period during which they could prepare to meet
the requirements of the Directive as to composition, labelling and
advertising. The Directive did not draw
any distinction between those requirements.
A "product" was not merely the powdered milk, the IF or FOF, but also
the labelled container in which it was packed and presented to the public. Thus, in the United
Kingdom trade in products which complied
with the 1995 Regulations should be permitted until 31 December 2009. Counsel referred to recital 31
and article 17 of the Directive, and submitted that recital 31 had been
misunderstood by the Food Standards Agency in a letter dated 18 December 2007 (no 6/21 of
process) which sought to justify the difference between the transitional
provisions in the draft Regulations and those in the enacted Regulations. The latter were inconsistent with the
Directive. The Scottish Ministers had no
power to act contrary to EC law (Scotland Act 1998, section 57(2)), and the
Regulations could not be read in such a way as to be within competence (section
101(1)(b), (2) of the same Act).
[15] Secondly, counsel founded on the respondents' failure to
consult the petitioners. (Counsel
accepted that their duty to consult was imposed not by section 48(4) of the
Food Safety Act 1990, as stated in the petition, but by article 9 of Regulation
(EC) No 178/2002: see section 48(4C) of the 1990 Act.) Counsel founded in particular on the
respondents' failure to consult the petitioners on the changes in the
transitional provisions. He referred to
the partial regulatory impact assessment annexed to the Food Standards Agency's
Scottish consultation document (no 6/14 of process) and pointed to its
explanation of regulation 31 of the draft Regulations in paragraph 3.80. It was
there said that the effect of regulation 31 was, among other things, to "permit
trade in products which comply with the 1995 Regulations (the previous
Regulations) no later than 31
December 2009." The enacted
Regulations did not have that effect but exposed the petitioners to criminal
sanctions, and the Food Standards Agency had not sought to justify the change
until 18 December 2007 in
their letter no 6/21 of process, which had been written only after the Scottish
Regulations had been laid before the Holyrood Parliament on 6 December 2007. The absence of re-consultation was
fundamentally unfair.
[16] Thirdly, counsel addressed me on the consequences of
differentiation between the law on the subject of the Regulations in the
different parts of the United Kingdom
and among the Member States of the European Union. As a result of the suspension of the
corresponding Regulations in England
and Wales and
in Northern Ireland,
the law in the United Kingdom
was not uniform. Manufacturers were now
subject to different requirements in different parts of the United
Kingdom.
In addition, no other Member State
had implemented the Directive's labelling requirements from January 2008. The Netherlands,
Germany, Finland,
Slovakia, Poland
and Belgium had
transposed the Directive without amending the transitional provisions. Thus, until 1 January 2010 there would be a disparity between the
law in Scotland
and in these other Member States which would unlawfully restrict the free
movement of goods to and from Member States.
There was no public interest objective here which could take precedence
over the free movement of goods. Counsel referred to Keck and Mithouard [1993] ECR I-6097 at paragraph 15.
[17] Counsel did not develop two matters which are the subject of
averment in the petition: the issue of legitimate expectation, and the "gold
plating" of the Directive. He submitted that on the grounds on which he had
addressed me, he had established a prima
facie case. That was the first test
he had to satisfy: Toynar Ltd v Whitbread &
Co plc 1988 SLT 433. Since he was
not attacking the Directive, he did not have to meet any higher test. Counsel discussed Abna Ltd v The Scottish
Ministers 2004 SLT 176; R v
Secretary of State for Transport, ex parte Factortame Ltd (No 2) [1991] AC 603, Lord Goff of Chieveley at pages 661, 663, 664, 671-674; Re
Eurostock Meat Marketing Ltd's Application for Judicial Review [1999] NI 13
at 21-24; and R v H M Treasury, ex p
British Telecommunications plc [1994] 1 CMLR 621, Sir Thomas Bingham M R at
647.
[18] Counsel then turned to the second test, that of the balance of
convenience. He submitted that it was
difficult to define any prejudice that would be suffered by the Scottish
Ministers if the Regulations were to be suspended. On the other hand, if they were not
suspended, the petitioners would be liable to criminal sanctions if they
marketed their goods. Their alternative
course would be to withdraw from the market until they could produce goods that
were labelled in accordance with the Regulations. That would involve them in
time, trouble, expense and loss of profit.
Withdrawal of their goods from the market involved a risk of
reputational damage: some might think
that the goods had been withdrawn because there was something wrong with
them. It was no answer to say that they
could defend any criminal proceedings:
quite apart from the cost of doing so, there was the reputational damage
that would result from the unpleasant publicity. The fact that their conduct would be lawful
elsewhere in the United Kingdom
would be an unsatisfactory state of affairs (Adna, supra).
[19] Counsel also discussed whether prejudice could be avoided by an
award of damages, and submitted that it could not. The loss and reputational damage suffered as
a result of criminal proceedings would be difficult to assess. The petitioners would also have to satisfy
the tests prescribed in Dillenkofer v Federal Republic of Germany [1997] QB 259 at 292, paragraphs 21-23. It could not therefore be said that damages
were an alternative remedy.
[20] Moving for suspension of the Regulations in their entirety,
counsel pointed out that that was what had been ordered by the courts in England
and Northern Ireland. It would be difficult to suspend the
Regulations in part only. The Court
could only suspend in part: it could not
rewrite the Regulations, or revive those provisions of the 1995 Regulations
which the 2007 Regulations had already revoked.
If, however, I were to express the view that only partial suspension was
appropriate, parties would endeavour to agree upon the provisions which should
be suspended.
The respondents' submissions
[21] Counsel for the Scottish Ministers opposed the granting of interim suspension. The principal
grounds of opposition were that the Directive required the Scottish Ministers
to adopt implementing measures by 31 December 2007; that the petitioners had made out an
insufficiently strong case for interim
relief; that damages might in any event be a sufficient remedy for any
companies who suffered pecuniary loss;
that there was no real urgency; and that the balance of convenience
favoured the status quo.
[22] Counsel submitted that the question for the Court was whether
article 18(1) of the Directive, properly construed, provided a transitional
period within which the implementation of the Directive's provisions did not
require the enforcement of compliance with the labelling requirements of which
the petitioners complained. Member States,
and this Court, were obliged to take all measures necessary to guarantee the
application and effectiveness of Community law (R v Ministry of Agriculture,
Fisheries and Food, ex parte Hedley Lomas (Ireland) Ltd [1996] ECR I-2553,
[1997] QB 139 at para 19). The Directive
made a number of changes with regard to labelling. It was common ground that its labelling
requirements should apply from 1
January 2008. The concept of
a "product", the term whose appearance in the phrase "trade in products" in
article 18(1) was relied on by the petitioners, differed from that of its
labelling and advertising. Counsel
referred to recital 23 and article 9(1) of the Directive. The concept of "trade in products" in article
18(1) covered no more than the composition of the product itself and did not
include its labelling or advertising.
The requirements of the Directive as to advertising and presentation
came into force and were enforceable in January 2008 (articles 13 and 14, and
regulations 20-22). There was a close
link between the concepts of advertising, presentation and labelling. If the two latter requirements were to be
enforced later than the advertising requirements, that would frustrate the
purpose of the advertising requirements and give rise to a risk of confusion
between IF and FOF of precisely the type that article 13(7) sought to
prevent. Article 18 should be construed
restrictively, given the purpose of the Directive, which was to protect the
health of infants. Labelling and
advertising were matters which could be changed relatively quickly.
Manufacturers had had a "lead-in" period since the publication of the Directive
on 30 December 2006, and
some manufacturers had already changed their labelling.
[23] Counsel accepted that the draft Regulations had not indicated
that all the labelling requirements would be enforced from January 2008. He submitted, however, that the position had
been made clear at a meeting on 21
November 2007 (referred to in no 7/1 of process), and in any event
the nature of the change had not been sufficiently fundamental to trigger any
requirement to re-consult (Smith v East Kent Hospital NHS Trust [2002] EWHC 2640 (Admin) at [39]-[45]).
[24] Counsel also addressed me on the Court's approach to interim relief requiring the suspension
of domestic legislation which implemented Community law. He submitted that the petitioners required to
show at this stage a strong prima facie
case that the law was invalid. Counsel
discussed Factortame (supra),
Zuckerfabrik Süderdithmarschen AG v Hauptzollamt
Itzehoe [1993] 3 CMLR 1 at [14]-[33] and Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd [1993] AC 227, Lord Goff of Chieveley
at 280-281.
[25] As to the balance of convenience, counsel submitted that there
was no clear urgency. It was not clear
whether, and if so why, it was not practical for manufacturers to label their
products according to the new requirements, whether their products' composition
accorded with the Regulations of 1995 or 2007. The respondents understood
that many companies had been working on both the compositional and labelling
requirements of the Directive since its publication on 30 December 2006. The petitioners would not sustain commercial
damage unless they were unable or unwilling to label their products
correctly. If the 2007 Regulations were
held to have been defective, the petitioners might be able to satisfy the test
for State liability (Hedley Lomas, supra). If the Regulations were suspended, companies
who were in a position to market products complying with the Directive but
could not do so in Scotland because the Directive had not been implemented
there might take proceedings against the respondents for implementation of the
Directive (Factortame, supra, at 643,
judgment of ECJ, paragraph 18; Marks & Spencer v Customs and Excise Commissioners [2003] QB 866 at 887-888, paragraphs 22-27). Interim
suspension of the Regulations would also set in train an unequal implementation
of the Directive across the European Union and would create uncertainty.
[26] Counsel said that it was not anticipated that the prosecution
of manufacturers would be imminent if
the Regulations were not suspended. The
witness statement of Ms Clare Boville of the Food Standards Agency (no 7/1 of
process) which had been prepared for the English proceedings demonstrated that
food authorities were advised to take "a graduated and educative approach" to
enforcement of the law and not simply to bring a prosecution if they found a
breach (paragraphs 37-44). In any event
it would be open to the petitioners to rely on their view of the Regulations in
defending any prosecution brought against them.
[27] Counsel added that the interim
orders made in England
and Northern Ireland
should not be regarded as determinative of the issue whether the Scottish
Regulations should be suspended ad
interim: those orders might be discharged at any time.
[28] Finally, counsel addressed the question of the partial
suspension of the Regulations. He submitted that the public and Community
interests required that the Court suspend only those parts of the Regulations
in respect of which the requirements for interim
relief had been met, and that no obvious prejudice to the petitioners would
arise if partial suspension were ordered.
Counsel referred to Adams v
Advocate General 2003 SC 171 at 231-232, paragraphs [137]-[140]. Counsel also mentioned that an interim declarator might be appropriate
and referred to Beggs v The Scottish Ministers 2004 SLT 755 at
759-760, paragraphs [12]-[15].
Discussion
[29] In my opinion, for the petitioners' motion for interim suspension to succeed they must
demonstrate a prima facie case of a
particular kind, and it must also appear that the balance of convenience
favours the grant of an order for suspension ad interim.
[30] As to the first requirement, I do not consider that there is
any rule requiring the petitioners to show a strong prima facie case that the Regulations are invalid. The petitioners
do not attack the validity of the Directive, but the validity of the
Regulations which purport to implement it;
and there is no question of suspension ad interim pending a reference to the Court of Justice. These considerations appear to me to
distinguish the present case from the cases cited in argument. I note that in any event in Factortame Lord Goff of Chieveley
observed (at page 674) that he doubted whether in cases of the class his
Lordship was discussing there was any rule that a party challenging the
validity of a law must, to obtain an interim
injunction restraining the enforcement of the law, show a strong prima facie case that the law is
invalid. His Lordship concluded his
discussion by saying:
"In the end, the
matter is one for the discretion of the court, taking into account all the
circumstances of the case. Even so, the court
should not restrain a public authority by interim
injunction from enforcing an apparently authentic law unless it is satisfied,
having regard to all the circumstances, that the challenge to the validity of
the law is, prima facie, so firmly
based as to justify so exceptional a course being taken."
[31] In the argument before me the parties were at issue as to the
appositeness of these dicta in the present case, but I shall assume that that
passage states the test the Court must now apply. I note, accordingly, that I must take into
account all the circumstances of the case, and I bear in mind that the course
the petitioners urge me to follow is exceptional. Nevertheless, having examined their challenge
to the validity of the Regulations, I have concluded that prima facie their case is so firmly based as to justify an order
for suspension ad interim. I have not determined that the petitioners
have a strong case, and I have not reached any concluded decision on the legal
submissions presented at the hearing. It
is a familiar rule that no such decision should be made at this stage (Toynar Ltd, supra, at 434F-H). It is therefore inappropriate that I should
analyse the petitioners' various contentions in detail and assess the weight to
be attached to each. It suffices that in
the exercise of my discretion I consider it correct to say, bearing in mind the
words quoted above from the speech of Lord Goff, that "manifestly there is a
case to argue and a case to answer" (Reed
Stenhouse (UK) Ltd v Brodie 1986
SLT 354 at 358B-C, cit Toynar Ltd, supra,
at 434E-F).
[32] While I am satisfied that the petitioners have met the first
test, I am not persuaded that they have shown that the balance of convenience
favours the suspension of the Regulations, in whole or in part, ad interim. In argument they placed great emphasis upon
their exposure to criminal sanctions if the Regulations were not
suspended. I am unable to accept,
however, that there is any realistic prospect of the second to fourth
petitioners being prosecuted before the present application for judicial review
is determined. In the first place, Ms
Boville's witness statement (no 7/1 of process) clearly explains how food
authorities enforce the law. She states
that they do not simply bring a prosecution if they find a breach: they are
required to have regard to a Code of Practice for their guidance as regards
execution and enforcement. The Code
requires enforcement action to be "reasonable, proportionate and consistent
with good practice". It enjoins "a graduated
and educative approach" which involves informal action including the discussion
of the circumstances of the case before formal enforcement action is
taken. Ms Boville states that the Code
makes clear that taking a prosecution should not automatically be either the
first choice or the only means of achieving compliance.
[33] Secondly, while Ms Boville's account seems to be naturally
focused on English practice, it is necessary to note that in Scotland
virtually all prosecutions are at the instance of the public prosecutor, who
institutes criminal proceedings only where it is in the public interest to do
so. Thus, even if a local authority were
to go through the graduated steps enjoined by the Code, it would be for the
public prosecutor, not the authority, to decide whether a summary prosecution
should be brought in the public interest.
(See Renton & Brown's Criminal
Procedure (6th ed), paras 4-01.0.1, 4-01.1 to 4-01.3.)
[34] Thirdly, the period to be considered is very short: the first
hearing in this case should take place within weeks rather than months.
[35] In these circumstances there is not, in my opinion, any real
risk that within that interval of time a public prosecutor would consider it to
be in the public interest to bring a summary prosecution for a contravention of
a regulation the validity of which was currently under challenge in all the
Supreme Courts of Scotland, England and Northern Ireland, and was likely to be
determined by these Courts within a matter of weeks.
[36] Certain of counsel's further submissions on the balance of
convenience were based on the risk of criminal proceedings. Other submissions relative to the alleged
difficulties of labelling goods did not appear to me to be sufficiently
supported by precise information.
[37] There are other practical considerations which appear to me to
favour the maintenance of the status quo.
In my view only partial suspension of
the Regulations would be appropriate, since it is not contended that the
Regulations as a whole are ultra vires.
On the assumption that the Court could
overcome the difficulty of identifying which of the Regulations should be
suspended, it would then be necessary for manufacturers and food authorities to
be advised with accuracy of the precise effects of the Court's decision. However lucid the advice might be, there would
obviously be room for confusion in the minds of those advised. In addition, some manufacturers might feel
constrained from bringing into the Scottish market any goods that complied only
with the labelling requirements of the 2007 Regulations. It does not seem sensible to invite all these
difficulties for the duration of an interim
period of weeks rather than months.
Result
[38] I have accordingly decided that the petitioners' motion for interim suspension of the Regulations
should be refused. In so deciding I have
not been influenced by the interim
orders made by the learned Judges in the High Court in London
and the High Court in Belfast. These orders, like the order in the present
case, are subject to variation or recall, and each order has been made in light
of the material placed before the Judge concerned. I do not have the advantage of knowing what
was represented to the learned Judges in London
and Belfast, or the reasons for
their decisions, and I have had to reach a view on the basis of the arguments,
information and documents submitted to me.
[39] As I have indicated, if I had concluded that interim suspension was appropriate, I
would not have made an order relative to the Regulations as a whole, but I
would have invited counsel for the parties to assist me in identifying which
particular regulations should be suspended.
