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23 and 24 October 2024
Citation: [2024] EWCA Civ 1560
Advocates for Animals acted for the Humane League UK (“THL”) in this recent appeal concerning the welfare of “fast-growing chickens”. The case was against the Secretary of State for Environment, Food and Rural Affairs (“Secretary of State”). The National Farmers Union was an interested party and The Royal Society for the Prevention of Cruelty to Animals (“RSPCA”) and the British Poultry Council were intervenors.
Background
THL brought a judicial review against the Secretary of State, the claim for judicial review was dismissed by the High Court in a judgment dated 24 May 2023 (The King (on the application of the Humane League UK) v Secretary of State for Environment, Food and Rural Affairs [2023] EWHC 1243 (Admin)). You can find the background to the case in our previous post here- which sets out the relevant legislative framework and summarises the scientific evidence in relation to the serious welfare issues suffered by fast-growing chickens.
THL appealed this decision to the Court of Appeal. References in [ ] are to paragraphs of the judgment of the Court of Appeal.
The Issue on Appeal
“At the heart of this appeal” [40] was the meaning of Paragraph 29 of Schedule 1 to the Regulations which provides:
“Animals may only be kept for farming purposes if it can reasonably be expected, on the basis of their genotype or phenotype, that they can be kept without any detrimental effect on their health or welfare”
An animal’s genotype refers to its genetic makeup; its phenotype refers to its observable characteristics, which are determined by its genotype.
THL also wished to appeal the High Court failing to conclude that, as a result of misdirecting himself as to the meaning of Paragraph 29, the Secretary of State consequently erred in (i) failing to articulate the proper meaning of Paragraph 29 in the Code of Practice; (ii) wrongly suggesting, in the Code of Practice, that productivity considerations could be weighed against animal welfare detriment, (iii) failing to undertake any prosecutions; and (iv) failing to interpret paragraph 15(2) of Schedule 5A of the 2007 Regulations such as to give effect to Paragraph 29.
THL also argued that the thresholds that have been set within the trigger system were unlawful and that the Secretary of State had failed to discharge his Tameside duty of inquiry, having not referred to any scientific evidence or literature despite claiming a ‘nuanced view’, a view that was not in fact ever articulated.
Judgment on Appeal
The challenges regarding the trigger system and the Thameside duty were not pursued at the hearing.
The Court of Appeal agreed with THL that Judge at first instance erred and that Paragraph 29 is a prohibition which is subject to a proviso, meaning The keeping of animals for farming purposes is prohibited unless it can reasonably be expected, on the basis of their genotype or phenotype, that they can be kept without any detrimental effect on their health and welfare [46].
The Court of Appeal agreed with the Secretary of State that Paragraph 29 is a prohibition on the keeping of farmed animals whose genotype and phenotype mean that, regardless of the conditions in which they are kept, they cannot be kept without detriment to their health or welfare [50]. However, the Court of Appeal provided an explanation of what this means in real terms, namely recognising the difference between detrimental characteristics which are inherent in the nature of the breed and which cannot be mitigated by changing the environmental conditions in which the animal is kept, and those which can be so mitigated. Most noticeably the Court of Appeal stated that if the conclusions in the RSPCA report are correct fast-growing chickens, for example fast growing chickens suffer from increased heart problems with consequential higher mortality, or leg development disorders because the chicken cannot support its own weight, then no improvement in the environmental conditions in which such chickens are kept could mitigate those detrimental effects upon their health or welfare, and therefore the keeping of such a breed would be prohibited by Paragraph 29 [52].
The Court of Appeal also pointed out that even if environmental conditions can mitigate the detriment then whilst the keeping of that breed may not be prohibited by Paragraph 29, it might constitute a failure to take reasonable steps in all the circumstances to ensure that the needs of the animal were met, contrary to section 9 of the Animal Welfare Act 2006 [51].
In relation to the “can reasonably expect” test in Paragraph 29, the Court of Appeal confirmed that the test is an objective one [53]. The Court of Appeal disagreed with the Judge at first instance who had held that the ‘reasonable person’ could not be taken to know the content of the RSPCA Report and the other scientific evidence relied upon by THL. The Court of Appeal confirmed that this was a question of fact and stated that “…it is reasonable to expect that a reasonable person keeping or intending to keep fast-growing chickens, who is after all responsible for their health and welfare, would at least be aware of the controversy about the keeping of such chickens and would take some steps to inform him or herself about it” [53].
Importantly, the Court of Appeal, disapproving of the gloss introduced by the Judge at first instance, clarified that the threshold for “any detrimental effect” in Paragraph 29 is a low one and would be satisfied unless that detriment was only “minimal or momentary” or occurred “only in a tiny proportion of such animals” [57].
Notably, the Court of Appeal went on to state that Paragraph 29 “unequivocally prioritises animal health and welfare over commercial benefit”, that “…there is no question of balancing the advantage of higher productivity against the detrimental effect(s) on an animal’s health or welfare” [60] and that:
“If a given breed can reasonably be expected to suffer a detrimental effect on its health or welfare because of its genetic make-up, the prohibition on keeping that breed of animal applies regardless of any commercial advantages which it may have” per Males LJ at [60]; and If the proviso is satisfied “…then that particular breed cannot be kept as farmed animals, no matter how profitable or convenient the breed might be for a farmer. The 2007 Regulations do not permit the well-being of such a breed of animal to be traded off against the economic interests of farmers” per Snowden LJ at [75].
Despite the significant win by THL challenging the Judge at first instance’s interpretation of paragraph 29 and the Court of Appeal largely agreeing with THLs interpretation, the appeal was dismissed [62]-[72]. This was due to the Court of Appeal finding that the case was not an appropriate case for a declaration in the abstract, but rather the interpretation of paragraph 29 reached by the Court will be for the Secretary of State to consider as it pertains to its practices and the Magistrates Court should it be faced with deciding on a case involving an offence under Paragraph 29.
Commentary
The ruling by the Court of Appeal represents a significant legal step towards ending the practice of keeping fast growing chickens, who suffer as a result of having been bred to prioritise fast-growth, productivity and profit, at the expense of their welfare. The message from the Court of Appeal is clear: in the context of the selective breeding of farmed animals, profits and productivity cannot be prioritised over welfare.
The judgment provides welcome clarity on the interpretation and application of Paragraph 29 of the Regulations and confirms that the keeping of any farmed animal who can reasonably be expected to suffer any detriment as a result of its genetic make-up is prohibited.
This case draws vital attention to the extreme suffering experienced by billions of chickens and, despite the Court of Appeal not being in a position to rule on the science in the context of this judicial review claim, it nonetheless represents an important step towards securing enforcement action to prevent the farming of animals bred into suffering in pursuit of profit.
Local authorities are entrusted with the enforcement of Paragraph 29, breaches of which constitute a criminal offence triable in the Magistrates’ Court. The Court of Appeal’s judgment clarifies the legal position and therefore paves the way for further legal challenges if local authorities and the government do not act swiftly.
Advocates for Animals acted for THL and instructed Brendan McGurk KC and Edward Brown KC as counsel.
Getting Advice
This post is not legal advice and should not be relied on as such. If you require legal advice on animal protections laws please contact info@advocates-for-animals.com