The King (on the application of the Humane League UK) v Secretary of State for Environment, Food and Rural Affairs
| Jurisdiction | England & Wales |
| Judge | Sir Ross Cranston |
| Judgment Date | 24 May 2023 |
| Neutral Citation | [2023] EWHC 1243 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2956/2021 |
and
and
[2023] EWHC 1243 (Admin)
Sir Ross Cranston
sitting as a High Court judge
Case No: CO/2956/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Edward Brown KC and Brendan McGurk (instructed by Advocates for Animals) for the Claimant
Richard Turney and Ben Fullbrook (instructed by GLD) for the Defendant
The Interested Party did not appear
Nick Armstrong KC (instructed by Bates Wells & Braithwaite London LLP) for the Intervenor
Hearing dates: 3, 4 May 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 24 May 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
INTRODUCTION
In this judicial review the claimant seeks to challenge the Secretary of State for Environment, Food & Rural Affairs in relation to the rearing of fast-growing breeds of broiler (meat) chickens. The claimant accepts that breeding practices have increased meat yield and allowed producers to reduce cost significantly, but it argues that this is at the expense of substantial animal welfare. It contends that the Secretary of State had adopted and maintains policies and practices founded on legal error.
It goes without saying that the challenge has been advanced, and needs to be decided on legal, not policy grounds. Whatever legitimate public policy issues it highlights about fast-growing breeds of broiler chickens, the claimant must establish that the Secretary of State has erred in terms of ordinary principles of public law.
The legal character of the claimant's challenge has shifted over time and for that reason needs brief explanation. At the hearing the claimant, with the support of the intervenor, contended that the central issue in the case had become the construction of paragraph 29 of Schedule 1 to the Welfare of Farmed Animals (England) Regulations 2007. Paragraph 29 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.”
In the judgment I call this Paragraph 29.
The claimant advanced its case around the correct interpretation of Paragraph 29. Since the Secretary of State had misinterpreted it, the claimant contended, she has adopted and maintains unlawful policies and practices, including a Code of Practice and a system of monitoring and enforcement (including the so-called “trigger system”). Her practices include a policy of non-enforcement because she has erred as to her position on compliance with the law. There is therefore a lack of equal treatment between producers.
As initially formulated in 2021, however, the judicial review challenge raised (a) as ground 1, what was said to be the Secretary of State's unlawful policy which permits farmers to breed and rear fast-growing breeds of broiler chicken, when these animals could not be kept without unlawful detriment to their health and welfare; and (b) as ground 2, her unlawful system for detecting, reporting and responding to evidence of detriment to health and welfare experienced by the conventional fast-growing breeds. The claimant sought declarations that the alleged policy and the monitoring system were unlawful.
Permission to bring the judicial review was refused by Kate Grange QC with detailed reasons on the papers in October 2021, and by Lieven J in a judgment on a renewed application at an oral permission hearing in May 2022. Permission was then granted on appeal by Singh LJ in September 2022 on the basis that although the claim may fail on its merits, it should be fully considered in the public interest with a full hearing.
Following the grant of permission, Ritchie J allowed the claimant to amend its grounds. As a result the challenge to policy is advanced as well on the basis that the Secretary of State has misdirected herself as to the meaning of Paragraph 29 (ground 1A); secondly, that her Code of Practice is unlawful in that it permits irrelevant considerations to be taken into account when considering compliance with Paragraph 29 (ground 1B); and thirdly, that she is in breach of her Tameside obligations and/or has acted irrationally as regards her conclusions on the evidence relating to meat chicken welfare prior to formulating or promulgating her Code of Practice (ground 1C). Ground 3 is an allegation of breach of the principle of equal treatment as applied between different producers of chicken breeds, namely those who are compliant with welfare requirements, including Paragraph 29, and those who are not. The claimant did not seek any amendment to the relief it was seeking.
BACKGROUND
Before proceeding further let me sketch some background to the legal challenge, first as to the parties, then something about the production of meat chickens, and then a summary of the RSPCA report, which forms the backdrop to these proceedings.
The parties
The claimant is a charity whose mission is to end the abuse of animals raised for food. There are four witness statements from Victoria Bond, the chair of trustees of the claimant and a veterinary surgeon.
The defendant is the Secretary of State for Environment, Food & Rural Affairs (“the Secretary of State”). Her department is commonly known as “Defra”. Among other things she exercises powers in the Animal Welfare Act 2006, makes regulations under it, and issues codes of practice concerning the welfare of farmed animals. She has powers to prosecute in certain cases. There are two witness statements from a senior policy official in Defra.
The interested party, the National Farmers' Union (“NFU”), did not participate at the hearing, although it did lodge Summary Grounds of Resistance at an earlier stage of the proceedings and made submissions at the appellate stage.
Earlier this year Bourne J granted the Royal Society for the Prevention of Cruelty to Animals (“RSPCA”) permission to intervene by way of written and oral submissions (up to 20 minutes). It is the world's oldest and largest animal welfare charity. There is a witness statement from its chief legal officer, Raymond Goodfellow.
The meat chicken industry
The evidence of the Secretary of State is that over one billion meat chickens are slaughtered in the UK every year, and that in 2021 the overall value of meat chicken production in the UK was £2.4 billion. Her evidence is that the vast majority of meat chickens are produced in what has been called an “integrated model”, whereby the farmer typically owns the land and buildings and is contracted to produce chicken for an “integrator”. The integrator manages the slaughter of the chickens, their processing and packing, and contracts with retailers such as supermarkets. Apparently, the meat chicken market is highly concentrated with the top three integrators supplying approximately 75% of all meat chickens.
The Secretary of State's evidence is that approximately 95% of meat chickens are reared in large, closed buildings with a maximum stocking density of 39kg per square metre, although assurance schemes and some retailers may stipulate lower stocking densities. This is known as “conventional” method of rearing meat chickens.
The present claim concerns what are called “fast-growing chickens” (or fast-growing broilers). As a result of genetic selection these are chickens which can be expected to reach a slaughter weight of around 2.2kg in 5–6 weeks when reared in an indoor commercial environment. It seems that all fast-growing meat chickens are conventionally reared, and that a small percentage of conventionally reared meat chickens are slow-growing breeds. Slow-growing chickens are those which can be expected to reach a slaughter weight of 2.2kg in 7–8 weeks when reared in an indoor commercial environment.
The RSPCA Report
Victoria Bond explains in her first witness statement that it was the RSPCA Report, Eat. Sit. Suffer. Repeat. The Life of a Typical Meat Chicken, published in 2020, which led the claimant to launch this judicial review. This is referred to in the judgment as “the RSPCA Report”.
In his witness statement, Mr Goodfellow explains as background to the report that the RSPCA has had an interest in the welfare standards for meat chickens for some time, leading to its broiler breed welfare assessment protocol to assess the welfare of broiler breeds.
The executive summary of the report states that the genetic selection of meat chickens for performance:
“has been reported to be responsible for contributing to not only the most, but also the most severe, welfare problems seen in broilers today, such as chronic leg disorders and heart and circulatory problems. The severity of the welfare problems, the huge number of animals involved globally, and the fact that these welfare concerns have not been adequately addressed to date, means this long-standing issue requires urgent attention.”
After an overview of the broiler genetics industry, the report has a section on the welfare implications of intense genetic selection for performance. The first heading is “health”, and the report has three subsections. The first addresses heart and circulatory health and states that fast growth can increase the risk of two types of heart conditions, ascites, and sudden death syndrome. There is reference to several studies to support and explain this. Walking ability is the next subsection, and how fast growth can cause leg developmental disorders. Again the matter is developed by...
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