The Humane League UK, R (on the application of) v Secretary of State for Environment, Food and Rural Affairs

Paragraph 29 of Schedule 1 to the Welfare of Farmed Animals (England) Regulations 2007 is a prohibition subject to a proviso. Animals may be kept for farming purposes only where it can reasonably be expected, objectively and on the basis of their genotype or phenotype, that they can be kept without material detrimental effects on their health or welfare.

The assessment concerns breed characteristics and whether environmental conditions can mitigate them. Minimal or momentary effects, and effects occurring only in an insignificant proportion of the breed, may be disregarded. Commercial productivity cannot be balanced against animal welfare detriment. Judicial review is not an appropriate vehicle for resolving contested scientific evidence where no irrationality challenge is advanced.

The Humane League UK challenged the Secretary of State’s policy permitting the keeping of fast-growing meat chickens and the system for monitoring their welfare. The claim alleged that both were unlawful under paragraph 29 of Schedule 1 to the Welfare of Farmed Animals (England) Regulations 2007. Sir Ross Cranston dismissed the judicial review claim: [2023] EWHC 1243 (Admin).

On appeal, the appellant accepted that the Court could not determine whether fast-growing breeds were unlawful because that issue depended on contested scientific evidence. It nevertheless sought guidance on paragraph 29, and challenged the Code of Practice, prosecution arrangements and trigger system. The central questions concerned the proper construction of paragraph 29 and whether declaratory relief should be granted.

The appeal was dismissed. The Court could not determine whether fast-growing chickens were unlawfully kept because that question depended on contested scientific evidence, and no irrationality challenge was pursued. The different interpretation of paragraph 29 did not justify the declarations sought.

1. Construction of paragraph 29. Paragraph 29 is a prohibition subject to a proviso. Keeping an animal for farming purposes is prohibited unless it can reasonably be expected, on the basis of its genotype or phenotype, that it can be kept without any detrimental effect on its health or welfare. The wording substantially follows paragraph 21 of the Farming Directive and is not susceptible to the narrower interpretation adopted below.
2. Breed characteristics and environmental conditions. The reference to genotype or phenotype concerns adverse consequences of the way in which animals have been bred. Paragraph 29 is directed to detriment inherent in the breed, rather than environmental conditions addressed by Schedule 5A. A characteristic which can be eliminated or mitigated by suitable conditions, such as susceptibility to cold addressed by appropriate heating, does not necessarily engage the prohibition. A characteristic which cannot be mitigated does.
3. Reasonable expectation and detriment. The relevant standard is that of a reasonable person responsible for the animals. What such a person would be expected to know is a question of fact, informed by good practice and scientific knowledge under regulation 4(2)(d). There is no assumption that animals will be kept in ordinary farming conditions. The expression any detrimental effect does not apply literally: minimal or momentary effects, and effects occurring only in an insignificant proportion of the breed, may fall outside the paragraph. Males LJ also indicated, obiter, that health and welfare should be assessed holistically; Snowden LJ expressed that approach more firmly.
4. Commercial benefit. There is no balancing of productivity against welfare detriment. Paragraph 29 prioritises animal health and welfare over commercial advantage.
5. Code and remaining grounds. The Code of Practice was not unlawful. Under R (A) and R (BF) (Eritrea), there is no general duty to explain a statutory rule in policy guidance, and the Code did not misstate or purport to give a complete account of paragraph 29. Regulation 8 placed responsibility for prosecution on local authorities. Paragraph 15(2) of Schedule 5A concerned environmental conditions, not selective breeding. The trigger-system and Tameside grounds were not pursued.

• Court of Appeal (Civil Division): Appeal dismissed. The Court declined to grant the declarations sought, although it identified errors in the construction of paragraph 29.
• High Court of Justice, King’s Bench Division, Administrative Court: Sir Ross Cranston dismissed the judicial review claim: [2023] EWHC 1243 (Admin).