R (Compassion in World Farming Ltd) v Secretary of State for the Environment, Food and Rural Affairs
| Jurisdiction | England & Wales |
| Judge | Mr Justice Newman,MR JUSTICE NEWMAN |
| Judgment Date | 27 November 2003 |
| Neutral Citation | [2003] EWHC 2850 (Admin) |
| Date | 27 November 2003 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1779/2003 |
[2003] EWHC 2850 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Newman
Case No: CO/1779/2003
Rabinder Singh QC and Alison Macdonald (instructed by Bindmans) for the Claimant
David Anderson QC and Marie Demetriou (instructed by DEFRA) for the Defendant
Introduction
Approximately 44 billion broiler chickens are reared worldwide each year. There are two groups of broiler chickens: ordinary broilers, reared for their meat, and the breeding flock, whose role it is to produce the chicks which will be killed for their meat. In 2002 the United Kingdom reared approximately 810,000,000 broilers for meat and approximately 680,000,000 female breeder chicks. Among the Member States of the European Union, France's output is somewhat higher than the United Kingdom and Spain comes third. In some Member States the number of female breeders reared is significantly lower than the number reared for meat. From the data for 2002 Greece provides an example. It reared 102,000,000 meat chickens but no female breeders. From this single example and a volume of other material it is clear that there is a market in broilers within the European Union. Thus, along with other animals kept for farming purposes, the European Union has legislated for their protection. In this case the Court is concerned with Council Directive 98/58/EC of 20 th July 1998 ("the Directive") and a challenge to the adequacy of its implementation in domestic law.
Approximately 97% of all the broilers in the European Union are called 'fast-growing'. A fast-growing broiler is derived from one or other of a few breeds available worldwide, in particular, Aviagen, Cobb and Arbor Acres.
Nearly all broilers reared in the United Kingdom are kept in factory farms. Broiler chickens reared for their meat reach their slaughter weight, typically around 2 kg, within about 40 days of being hatched. They would not reach adulthood until about 18 to 24 weeks of age. Broilers are thus very young animals for the whole of their fast-growing period. By selective breeding, the length of time which broiler chicks take to grow to 2 kg has been approximately halved in the last 30 years. The reduction in the period of time taken to produce a 2 kg broiler has been mainly achieved through selective breeding for improved growth rate and meat yield, but selection against diseases, susceptibility and advances in nutrition, hygiene, housing and husbandry and disease control have also played a role. There is a difference of opinion between the Claimant and the Defendant, which it is not necessary to resolve, as to the extent of the impact of selective "improvements" (in disease control and so forth) over selective breeding.
Broiler breeders
Both male and female breeders are subject to a restricted feeding regime for their first few weeks of life – about 20 days to the point of lay. This is important to the industry for if female broiler breeders are fed ad libitum then egg production and hatchability are poor and mortality is high. Feed restriction controls ovulation rate and restores normal function to the reproductive process. After their first weeks of being broody and after the point of lay, their feed is increased but controlled. It must be controlled to support the peak of egg production.
It is not in dispute that the restricted feeding of broiler breeders results in hunger, but there is a significant dispute about what 'hunger' means, when applied to broiler breeders, and further an issue as to whether the state of "hunger" disclosed by the evidence infringes the Directive and is contrary to domestic law.
The Parties
Compassion in World Farming (CIWF) was established as an unincorporated body in 1967 and as a company limited by guarantee in 1992. On the 1 st April 1995 its activities were reorganised: the limited company's name was changed to Compassion in World Farming Supporters and since that date its lobbying and campaigning activities have been carried out by its wholly owned subsidiary company, Compassion in World Farming Limited. Its objects include the promotion of the welfare of farm animals suffering or likely to suffer from cruelty or deprivation, or suffering or likely to suffer due to genetic manipulation or pharmaceutical applications or surgical procedures.
CIWF has for many years been active in trying to secure reforms to end the broiler health and welfare problems associated with the use of fast-growing genotypes. Its organisation has published four reports (in 1993, 1995, 2000 and 2003) on intensive broiler production. The reports are based on published scientific literature and examine, among other things, leg and heart problems and the use of restricted feeding regimes for broiler breeders, all of which arise from the use of fast-growing genotypes. As originally launched, this application for judicial review, as well as challenging the adequacy of the domestic implementation of the Directive, also raised factual issues in connection with leg and heart problems and other disabilities alleged to be suffered by broilers. The Court is not now required to resolve such issues as might have arisen in connection with those allegations. But the practice of restricted feeding is pursued on the grounds that the practice and its consequences infringe the Directive and the domestic regulations implementing the Directive.
Within the Department of the Environment, Food and Rural Affairs (DEFRA) there is an Animal Welfare Division, of which Mr George Noble is the head. There is also an Animal Welfare Veterinary Division of the Veterinary Directorate of the Animal Health and Welfare Directorate General, of which Mr David Pritchard is the head. They have both provided full witness statements to the Court. One of the main high level objectives of DEFRA is to "Protect the public's interest in relation to environmental impacts and health and ensure high standards of animal health and welfare". The objective is furthered by various means including providing instructions and training to the State Veterinary Service ("SVS") and monitoring the surveillance and enforcement of welfare standards.
Since 1968 statutory provisions with respect to the welfare of livestock have been contained in the Agriculture (Miscellaneous Provisions) Act 1968. In 1979 the Government established an independent advisory body called the Farm Animal Welfare Council (FAWC) which, among its other duties, has investigated the welfare of broiler chickens and made recommendations to the Government and industry. They have been acted upon. The research has been ongoing and development programmes targeted at improving the welfare of broiler chickens have been sponsored by DEFRA. In particular, these programmes have been concerned with reducing leg disorders in broilers and improving feeding practices for broiler breeder chickens.
Section 3 of the Agriculture (Miscellaneous Provisions) Act 1968 allows Ministers to produce codes of recommendation for the welfare of livestock and to issue them once they have been approved by both Houses of Parliament. Most recently DEFRA issued The Code for the Welfare of Meat Chickens and Breeding Chickens in July 2002.
The European Position
On the 10 th March 1976 the European Convention for the Protection of Animals Kept for Farming Purposes ("the Convention") was signed. It contains a set of general principles which can be taken as laying out the requirements necessary to safeguard the welfare of animals kept for farming purposes, in particular those kept in modern intensive stock farming systems. According to the Official Explanatory Report on the Convention, it was contemplated by the parties to it that detailed regulations should be worked out at a later date by a standing committee, which could give priority to the elaboration of standards concerning modern intensive stock farming systems, the intention being that they should be in conformity with the general principles of the Convention and based on scientific knowledge concerning the various species. I take the Convention to have been driven by ethical considerations and a concern to achieve a proper balance between the needs of humans and animals in intensive farming.
The provisions of Articles 3, 4, 5 and 6 of the Convention can be regarded as containing the guiding principles for the subsequent elaboration of detailed measures in the form of recommendations from the standing committee. In common with international agreements of this nature, the language of the Convention is marked by its breadth of expression and the amplitude of its objectives. It is to be noted that Articles 3, 4, 5 and 6, the precise terms of which it is not necessary to set out in this judgment, were closely followed by the Council of Ministers when drawing up the Directive. A protocol of amendment, which subsequently inserted into the Convention a new Article 3, concerning natural or artificial breeding or breeding procedures, which cause or are likely to cause suffering or injury to any of the animals, is also reflected in the Directive. Finally, in connection with the background material to the Directive, Mr Rabinder Singh QC, who appeared for the Claimants, drew the Court's attention to the Protocol on Improved Protection in Respect for the Welfare of Animals annexed to the Treaty establishing the European Community. It forms an integral part of the Treaty and states:
"In formulating...
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R (Compassion in World Farming Ltd) v Secretary of State for the Environment, Food and Rural Affairs
...review proceedings of Newman J on 27 th November 2003. Maurice Kay LJ gave permission to appeal. 4 Newman J's comprehensive judgment [2003] EWHC 2850 (Admin) covers much more detail than is necessary for this appeal. His judgment may be referred to to amplify this judgment. In paragraphs 6–......