Court of Appeal allows Judicial Review in respect of farmed chickens

Court of Appeal allows Judicial Review in respect of farmed chickens

Following two failed attempts at judicial review, the Court of Appeal gave permission to the Humane League UK to judicially review the Government’s alleged breach of the Welfare of Farmed Animals (England) Regulations 2007 (WOFAR) (as amended by the Welfare of Farmed Animals (England) (Amendment) Regulations 2010). Lord Justice Singh in The Humane League UK v The Secretary of State for the Environment Food and Rural Affairs CO/2956/202, gave permission to appeal on all three grounds pleaded, deciding that a full hearing would be in the public interest.

Background

World-wide approximately 66 billion chickens are slaughtered annually for food. In the UK approximately 1.1 billion chickens are slaughtered annually for meat production (these are known as ‘broiler’ chickens). Three broiler breeding companies dominate the world market in broiler chickens. The average UK slaughter weight of a chicken is 2.2 kg. Around 90% of chickens produced by the industry reach this slaughter weight within 34-36 days. They are known within the industry as ‘conventional breeds.’ This is a significantly faster time than it would naturally take for a chicken to reach this slaughter weight. In fact these chickens grow so fast because of genetic selection and feeding regimes which allow meat producers to meet the high demand for cheap meat.

In 2020 the RSPCA in a comprehensive comparative study ‘Eat. Sit. Suffer. Repeat.’ documented a number of serious welfare concerns for these fast growing breeds. The research showed that these birds were:

Up to twice as likely to die or be culled primarily due to ill health (up to 11%).
Up to four times more likely to suffer from hockburn, where birds suffer sores to their legs from resting on the litter, often for too long due to inactivity.
Up to 3.5 times more likely to suffer from moderate to severe lameness and require culling.
More likely to spend their time sitting (around 72% of the time) compared to slower-growing birds (51%).
These findings were subsequently supported by studies by the University of Bristol, the University of Guelph and the Royal Veterinary College.

The Government through the Department of the Environment, Food and Rural Affairs (DEFRA) holds that it has no policy that condones or permits the use of fast growing chickens. The Humane League UK (represented by the UK's first animal protection law firm, Advocates for Animals), argued that in fact the government has allowed fast-growing chickens to become the industry standard and in doing so were in breach of WOFAR.

The Regulations

Regulation 2 defines a “conventionally reared meat chicken” as an animal of the species Gallus gallus that is kept for meat production.

Regulation 3 states a “farmed animal” means an animal bred or kept for the production of food, wool or skin or other farming purposes.

Regulation 4(1), (2) states:

4.—(1) A person responsible for a farmed animal must take all reasonable steps to ensure that the conditions under which it is bred or kept comply with Schedule 1.

(2) In complying with the duty in paragraph (1), a person responsible for a farmed animal must have regard to its—

(a)    species;

(b)    degree of development;

(c)    adaptation and domestication; and

(d)    physiological and ethological needs in accordance with good practice and scientific knowledge.

Schedule 1 Paras 28(1) and 29 state:

28.—(1) — Natural or artificial breeding or breeding procedures which cause, or are likely to cause, suffering or injury to any of the animals concerned, must not be practised

29. 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.”

Schedule 5A, Part 3 paragraph 15(1) states:

15. (1) An official veterinarian conducting controls under Regulation (EU) 2017/625 in relation to chickens must evaluate the results of the post-mortem inspection to identify possible indications of poor welfare conditions in their holding or house of origin.

(2) If the mortality rate of the chickens or the results of the post-mortem inspection are consistent with poor animal welfare conditions, the official veterinarian must communicate the data to the keeper of those chickens and to the Secretary of State without delay.

The Humane League argued, following R v Secretary of State for Health ex parte Imperial Tobacco [2000] UKHL 60, that because the government had a statutory obligation to take implementing measures to ensure compliance with Schedule 1 paragraph 29 there was a sufficient basis to raise a challenge via judicial review. Further, that the Government had failed to comply with European Directive 98/58 (as amended by EU 2017/625).

The Humane League also argued that it was clear that the Government was permitting and/or encouraging an unlawful system by breaching Schedule 1 Paragraph 29 and therefore the test set out in R (A) v Secretary of State for the Home for the Department [2021] UKSC 37 was met. This was evidenced because the Government had put in place, at significant public expense, a Code of Practice and monitoring system under Schedule 5A Part 3 paragraph 15(1) and (2) (known as the ‘trigger system’), both of which recognised that the overwhelming majority of birds reared for food production are fast growing breeds. Further, the trigger system was not simply incidental to the keeping of the birds and implied the Government’s approval of an unlawful practice.

The second ground argued was that the Code of Practice put in place (under section 14 of the Animal Welfare Act 2006) in respect of the ‘trigger system’ was a wholly inadequate monitoring system. Paragraph 15(1), Part 3 Schedule 5A requires the official vet at a slaughterhouse to evaluate the results of post-mortems and if such are inconsistent with poor welfare conditions to report them to the keeper of the chickens and the Secretary of State without delay. However, under the Code of Practice in relation to the trigger system, a report needs only to be generated if the welfare issues are ‘exceptionally high’ or the number of mortality figures are ‘unusually high’. These high threshold criteria have no statutory basis.

The third ground pleaded was the principle of equal treatment which requires all domestic public authorities to treat domestic competitors equally. The Humane League UK argued that the trigger system as an enforcement regime uses such high, (as well as illegitimate), criteria that those who do not comply with WOFAR have an unfair advantage over those who do. This is because they are able to produce meat more cheaply than those who do comply with the Regulations and thereby gain an economic advantage. The effect is that non-compliant producers easily slip under an already very (and argued unlawfully) high radar, and subsequently animals suffer very much more significant levels of harm.

The case is due to be heard next year.

Marcia Hyde

19 October 2022

Marcia Hyde

Call 1992