England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
THE HON MR JUSTICE NEWMAN
CO/1779/2003

		Royal Courts of Justice Strand, London, WC2A 2LL
		29/07/2004

Lord Justice May:

Introduction

1. It is not easy to regulate the well-being of chickens. That may seem a cynical or dismissive introduction. But it is close to the heart of this appeal. Philosophers since at least Aristotle have had similar difficulty in defining and measuring human happiness. For chickens, Dr P.M. Hocking, of the Roslin Institute in Scotland presented a paper at the University of Bristol in 2003 in which he said:

"The objective of assessing the subjective feeling of stress associated with hunger in feed restricted broiler breeders is problematic and has not been resolved."

2. The claimants are concerned for the welfare of broiler chickens. They are not concerned to try to stop the domestic and worldwide production of broiler chickens by intensive farming methods. They are concerned to alleviate features detrimental to the welfare of broiler chickens which arise because selective breeding has evolved fast-growing genotypes. The claimants' view is that features detrimental to the welfare of the birds could and should be alleviated by using genotypes which do not mature so quickly. Their case in the present proceedings is, however, aimed only indirectly in this direction. Their case concerns broiler breeder chickens. They seek a determination that the Secretary of State ("DEFRA") has a policy which permits those who rear broiler breeders to do so in contravention of a regulation relating to the manner in which they are fed.
3. This is an appeal from part of a decision in judicial 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 6-10 of his judgment, Newman J describes the relevant position and activities of the parties to the proceedings and introduces certain statutory provisions. He refers to an independent advisory body called the Farm Animal Welfare Council (FAWC), which the Government established in 1979 as an independent advisory body. It has investigated the welfare of broiler chickens and made recommendations which have been acted upon.

Facts

5. Newman J's factual introduction was as follows:

"1. 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. …

2. 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.

3. 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.

4. 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.

5. 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."

Legislation and regulations

6. Newman J referred extensively to and quoted from relevant European and domestic legislation in paragraphs 11-22 of his judgment. These may be referred to. A more abbreviated reference is sufficient for the purposes of this appeal.
7. On 10^th March 1976, member states of the Council of Europe signed the European Convention for the Protection of Animals Kept for Farming Purposes (ETS 87). This applied to the keeping, care and housing of animals, and in particular to animals in modern intensive stock-farming systems. The Convention expressed itself as open to signature by the European Economic Community. There was a Protocol of Amendment to this Convention dated 6^th February 1992.
8. On 20^th July 1998, the Council of the European Union adopted Council Directive 98/58/EC concerning the protection of animals kept for farming purposes. The Directive was to give effect to the principles laid down in the Convention. The Directive laid down minimum standards for the protection of animals bred or kept for farming purposes (Article 1). It required member states to ensure that the conditions under which animals are bred or kept comply with the provisions set out in its Annex (Article 4).
9. The provisions of the Directive including its Annex were transposed with certain permitted additions into domestic legislation by the Welfare of Farmed Animals (England) Regulations 2000 (SI 2000 No 1870). These regulations are made under section 2 of the Agriculture (Miscellaneous Provisions) Act 1968. There is nothing in the Directive directly relevant to this appeal which is not transposed into the domestic legislation.
10. Section 2(2) of the 1968 Act provides that regulations may provide that a person who contravenes or fails to comply with specified provisions of the regulations shall be guilty of an offence. Section 7(1) provides that a person guilty of an offence under section 2 shall be liable on summary conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding level 4 on the standard scale.
11. Section 3 of the 1968 Act empowers ministers to prepare codes containing such recommendations with respect to the welfare of livestock situated on agricultural land as they consider proper for the guidance of persons concerned with livestock. A code prepared under the section has to be laid before both Houses of Parliament for approval. Paragraph 10 of the 2000 regulations requires those attending to animals to have access to and be acquainted with all relevant statutory welfare codes and to receive instruction and guidance on them.
12. Paragraph 3 of the 2000 regulations provides:

"(1) Owners and keepers of animals shall take all reasonable steps –

(a) to ensure the welfare of the animals under their care; and

(b) to ensure that the animals are not caused any unnecessary pain, suffering or injury.

(2) Owners and keepers of animals … shall take all reasonable steps to ensure that the conditions under which the animals are bred or kept comply with the requirements set out in Schedule 1."

13. Paragraph 13 of the 2000 regulations provides that a person who, without lawful authority or excuse, contravenes or fails to comply with any provision of the regulations shall be guilty of an offence under section 2 of the 1968 Act. Paragraph 13(2) provides:

"In any proceedings against an owner or keeper of animals for a failure to comply with regulations 3(1) or 3(2) …, the owner or keeper, as the case may be, may rely on his compliance with any relevant recommendation contained in a statutory welfare code as tending to establish his compliance with the relevant regulations."

14. Paragraph 22 of schedule 1 of the 2000 regulations provides:

"Animals shall be fed a wholesome diet which is appropriate to their age and species and which is fed to them in sufficient quantity to maintain them in good health, to satisfy their nutritional needs and to promote a positive state of well-being."

This paragraph, apart from the final eight words, is transposed from a corresponding paragraph in the Annex to the Directive. The final additional eight words had appeared in earlier domestic rules (the Welfare of Livestock Regulations 1994). They are the words on which the claimants' case in this appeal mainly depends.

15. Paragraph 29 of schedule 1, which the claimants rely on in this appeal mainly for context, provides:

"No animals shall be kept for farming purposes unless it can reasonably be expected, on the basis of their genotype or phenotype, that they can be kept without detrimental effect on their health or welfare."

16. Although the judge considered both the Directive and the regulations (and needed to do so for the purposes of the claimants' first ground for judicial review, which he dismissed), it is not necessary in this court to look in detail beyond the regulations. This is because the regulations fully encompass the relevant terms of the Directive and go beyond the Directive in the last eight words of paragraph 22, on which the claimants mainly rely.
17. There is a Code of Recommendations for the Welfare of Livestock: Meat Chickens and Breeding Chickens, which has been put before Parliament for authority to issue it under section 3 of the 1968 Act. This relates that the welfare of meat chickens and breeding chickens is considered within a framework, elaborated by FAWC, and known as the "Five Freedoms". The first of these is "Freedom from Hunger and Thirst – by ready access to fresh water and a diet to maintain full health and vigour". The Code includes under the heading "Feed and Water", the following:

"84 Breeding birds have been selected over several generations for their genetic potential for large appetites, fast growth and high fertility. Consequently, their husbandry requirements demand committed and competent stockmanship and a high standard of housing and equipment. Control of the environment if essential.

85 As in many aspects of husbandry, to promote optimum welfare the amount of feed offered to breeding chickens is a fine balance between offering too much feed (because birds fed to demand would become obese, fail to survive through the laying period and breeding would be severely impaired) and causing suffering due to hunger and starvation. The weight of present evidence is that the overall welfare of the bird is better if feed is restricted. However it is particularly important that the effects on the individual bird are carefully monitored by skilled staff."

The proceedings

18. The claimants were given permission to apply for judicial review on three grounds. The second of these was withdrawn in advance of the hearing before Newman J. The essence of the first ground was that the respondent had promoted regulations which did not properly implement Article 4 of the Directive. It was said that Article 4 required member states to "ensure" compliance with provisions in the Annex: but the regulations only required owners and keepers of animals to take "all reasonable steps to ensure" compliance with the requirements in Schedule 1. This ground failed before the judge and is not pursued on appeal.
19. The third ground, which is the subject of this appeal, challenged the alleged failure by DEFRA to enforce paragraph 22 of schedule 1 of the 2000 regulations by refusing to adopt a policy of prosecution in cases where broiler breeder chickens are subjected to restricted feeding so that the birds experience chronic hunger. The judge found against the claimants on this ground and they appeal against his decision.
20. The judicial review claim form sought a mandatory order requiring the respondent "to prosecute any owner or keeper who does not supply broiler breeder chickens with adequate food." Recognising that a blanket mandatory order in these terms would not be granted, Mr Rabinder Singh QC, on behalf of the claimants, suggested instead before the judge a draft declaration, although he stressed that a declaration might not be needed at all, depending on the terms of the judgment. The suggested declaration was one or both of the following:

"It is declared that:

(1) in concluding that the current regime of restricted feeding of broiler breeder chickens is lawful, DEFRA has misdirected itself in law as to the effect of the [2000 regulations and/or the Council Directive].

(2) in consequence DEFRA's policy of not prosecuting an owner or keeper of broiler breeder chickens which are subjected to the current regime of restricted feeding is unlawful."

21. Before this court, Mr Singh again stressed that the claimants' main concern was for the relevant law to be clarified and defined. The court was, however, anxious to have spelt out the illegality on the part of DEFRA for which the claimants contend. Mr Singh agreed to produce a further considered draft declaration and he has done so.
22. Mr Singh summarises the facts on which the claimants rely as follows. A consequence of the selective breeding of broiler chickens to achieve rapid growth is that they are vulnerable to a range of ailments, including lameness and heart problems. This is because their legs, hearts and lungs do not develop quickly enough to support their rapid muscle growth. Broiler chickens are slaughtered for food so early in their lives that these problems have not emerged to the extent that they would emerge in broiler breeders, if the breeders were given the same quantity of feed. If the breeders were not given a more restricted diet, and if their weight was not accordingly restricted, many would die before they reached sexual reproductive maturity or would be too unhealthy for breeding. For this reason, broiler breeders are for most of the first 20 weeks of their lives given much less to eat than ordinary broilers are given. By this means they survive to sexual reproductive maturity as healthier birds with better reproductive capacity. But for most of the first 20 weeks of their lives they are in a state of "chronic hunger". They are also according to one study "frustrated and stressed" (Savory, Maros and Rutter 1993).
23. This and other scientific references are gathered together in a paper compiled by the claimants entitled "Feed Restriction of Broiler Breeders". The paper digests evidence to show that "feed restriction seriously compromises welfare". This includes:

"Feed restricted broiler breeders … [consume] their feed in a very short space of time and are chronically hungry" (Savory et al, 1993).

"Broiler breeders show evidence of physiological stress as well as an increased incidence of abnormal behaviours, and are also chronically hungry" (Mench, 2002)."

"The problem of hunger in broiler breeders is not easy to solve with present strains of birds and is likely to get worse if selection for fast growth continues. A long term solution is to change the genetic strains but, in any case, breeders must avoid exacerbating the problem and reduce their demand for ever increasing growth rate" (FAWC, 1998).

"Chronic quantitive food restriction" to which broiler breeders are routinely subjected leads to them being "very hungry". "The severe feed restriction results in unacceptable welfare problems" (SCAHAW, 2000).

24. Mr Singh emphasises that the respondent accepts that broiler breeders reared in this way may be chronically hungry during most of the first 20 weeks of their lives and that this is detrimental to their welfare. Subject to qualifications to which I shall refer later in this judgment, Mr Anderson QC for the respondent does indeed accept this. He does not quarrel with the adjective "chronic", provided that it is understood to mean "persistent" without quantitative overtones.

The judge's judgment

25. The judge imagined that it would not be difficult to find a large number of the population to support a call that broilers should not be kept in enclosed and densely populated conditions such as were described and shown in documents and photographs supplied to the court. The court was not, however, concerned with such a broad based attack. The claimants' ground of challenge did not invite a judgment in connection with the precise conditions under which broilers are kept. But, said the judge, Mr Singh's challenge –

"… involves a principled objection to a contention that the legality of a restricted feeding programme for broiler breeders can be assessed by balancing the commercial interests of intensive farming of broilers against the interests of broilers. In doing so his argument raises ethical issues and also requires consideration to be given to the true reach of the Directive and domestic legislation which has been formulated to regulate the use of intensive farming designed to meet the needs and demands of food for human consumption."

26. The judge referred at some length to the evidence before him. He quoted extensively from Dr Hocking's report, to which I have referred. He also referred to the evidence of Peter Stevenson, the Political and Legal Director of the claimants, whose statement had drawn attention to relevant scientific literature on which the claimants relied.
27. One ground of appeal to this court complains that the judge did not refer in his judgment to a report of March 2000 by the European Commission's Scientific Committee on Animal Health and Animal Welfare. I do not consider it to be a proper criticism of the judge's judgment that he failed to refer explicitly to one or more particular scientific papers. Mr Singh does not suggest that this court should resolve such shades of scientific disagreement as may exist. In my view, the judge had the substance of the claimants' scientific case in full view.
28. The judge's extended references to Dr Hocking's report are in paragraphs 48 and 49 of his judgment. In this paper, as in other material presented to the court, there are comparisons between the restricted quantities of feed provided to broiler breeders and the amount of feed they would consume if they were left to themselves with an unrestricted supply. It is accepted that, if broiler breeders are given unrestricted feed, they suffer high mortality from heart failure in females and culling for lameness in males. As the judge said, the claimants recognised that, although their complaint was directed against a harmful feed restriction regime, they did not seek an order that broiler breeders should have unrestricted feed under conditions of intensive farming. That followed from the evidence that it would simply give rise to other adverse consequences to their welfare. The judge quoted from Dr Hocking's report to the effect that feed restriction in male broilers controlled their bodyweight and had undoubtedly been responsible for much of the decrease over time in the prevalence of musculo-skeletal disease.
29. Dr Hocking had referred to concerns that the degree of feed restriction to which commercial broiler breeders are subject may make them chronically stressed; concerns also about aggression in males. He said that assessing stress was problematic and had not been resolved; and that there was no evidence that feed restriction was associated with increased aggression. He said that birds on restricted feed continue to gain weight throughout the rearing period. "They cannot therefore be described as starving and are substantially better fed than would be those farm animals in many traditional farming systems where maintenance feeding, at best, prevailed for many months." Restricted birds consume their feed more rapidly than those on unrestricted feed, but it is problematic to compare birds of different size, physiological maturity and prior experience over very short periods. Restricted birds spend less time resting and more time foraging, scratching and pecking the litter, drinking and spot pecking. "If hungry birds are able to conduct normal foraging activity in response to feed restriction then the psychological feelings of hunger are likely to be minimised or dissipated". There was some increase in physiological stress indices, but not in all experiments. There was little evidence that feed restrictions compromised fundamental bodily functions. Other comparisons are discussed.
30. The judge reproduced in paragraph 50 of his judgment two graphic representations from Dr Hocking's report showing comparisons between broiler breeders subject to restricted and unrestricted feeding. These show that the amount of food consumption is substantially smaller (of the order contended for by the claimants) for restricted birds until they are 20 weeks old, but not thereafter; that restricted birds do nevertheless gain in weight steadily during this period; and that their mature body weight is significantly less than the corresponding weight of birds on unrestricted feed.
31. The judge expressed his conclusions in paragraphs 54 to 63 of his judgment, which I quote in full.

"53 There are two areas where, in my judgment, balance must be considered. First, in connection with the relative advantages and disadvantages of being a broiler breeder on a restricted feeding regime and being a broiler breeder on an ad libitum regime. Secondly, whether the Directive allows for any balance to be struck between the welfare of animals and the commercial needs of intensive farming.

54 In my judgment, the difficulties in the way of the Court being in a position to uphold this challenge commence with the lack of certainty as to meaning which can be attached to expressions such as the "hunger of chickens", or the "chronic hunger of chickens". Unless an adequate understanding can be achieved, no determinative consideration can be given to whether "the state of wellbeing or health" of the chickens is being promoted or not. All animals kept by humans are subjected to a feeding regime and at any particular time they may be hungry. As Mr Pritchard points out, "Hunger is a natural physiological state that motivates feeding".

55 With measured and appropriate forcefulness Mr Singh took issue with this opinion. He defined it as the deliberate infliction of hunger, where broilers are being denied what they want, for the sake of commercial gain. But animals are exploited by humans for any number of purposes including, in a number of different circumstances, commercial gain. I am unable to allow the reach of the law to be extended or to allow the legal consideration of the issues to be heightened by the stark reality of the position and status animals have in the human food chain. That is not to say that regulations which control the farming industry are to be relaxed simply because of market demand.

56 Mr Singh can point to an acceptance from the experts that there is room for improvement (see "the long-term strategy" to which Mr Hocking refers, cited in paragraph 49 above). It seems clear that the FAWC and the Defendant have taken steps to secure improvements to date, but the Claimants' argument calls for a determination on the evidence to date and a conclusion that the well-being of broiler breeders is not being promoted and that Regulation 22(2) is being breached.

57 It does not seem to me that the paradigm of a chicken being in a state of good health is that it should be fed ad libitum. Nor, as I have said already, does Mr Singh urge this. He takes the line on the graph in Mr Hocking's report as indicative of the margin of difference. He points to this as an indication of the degree of hunger being inflicted by the regime of restricted feeding. But the state of hunger in itself is, according to the evidence, not absolute because broiler breeders put on weight each day. They need to be healthy enough to breed. Whilst they may be fed less food than they might otherwise eat, for example, if grazing in a farmyard, the food they are given is specifically designed to be nutritious. As with humans, to eat as much as they want is not what they need to achieve a state of well-being and, importantly, it is almost certain to induce the opposite.

58 I have concluded that a regime of restricted feeding is not in itself contrary to the law. There is no paradigm of a healthy state of affairs for chickens. Further, a proper approach to the reach of the Directive and the regulations involves an acceptance that intensive farming in connection with chickens is not in itself unlawful.

59. It seems to me that on a proper analysis the persuasively simple argument of Mr Singh must fail. It is not enough simply to argue that feed restrictions to broiler breeders are incompatible with the generation of a positive state of well-being because, broiler breeders are left either "chronically hungry" or "very hungry" or can from time to time appear distressed. The evidence discloses that an attendant aspect of intensive farming is the achievement of a balance in connection with the health of broiler breeders.

60. It is to be noted that broiler breeders are fed a diet which satisfies the other requirements of the Annex to the Directive and the Schedule to the regulations because the diet is wholesome and appropriate to their age and species and sufficient to maintain good health and satisfy nutritional needs. No case has been alleged to counteract this conclusion.

61 I accept that but for intensive farming there would be no need to restrict the feeding of chickens in the manner currently practised but since the legislation is directed towards intensive farming techniques, the focus of attention must be to examine the extent to which restricted feeding strikes the best balance between the health problems that would otherwise be suffered by broiler breeders if they were eating ad libitum and the "hunger" associated with a restricted feeding regime. There is a real difficulty in concluding that, because a broiler breeder is allowed to experience hunger in the interests of its own longevity, reproductive capacity and good health, that nevertheless an owner/keeper is in breach of his Schedule 1 paragraph 22 obligation.

62 I have concluded that the evidence that broiler breeders are sufficiently hungry to compromise their well-being is lacking. In summary,

(i) the period of feed restrictions is limited and directed to a particular need;

(ii) the quantity of what they want to eat is not a good benchmark;

(iii) the weight gain and the absence of compromise to essential bodily functions that accompany feed restrictions is a significant factor against the conclusion argued for;

(iv) the acceptance of hunger in other forms of husbandry is routine and it has not been shown that the birds can be described as starving;

(v) the availability of methods of reducing the impact of restricted feeding, for example by encouraging foraging, and further genetic selection and the ongoing research aimed at minimising or dissipating feelings of hunger, comprise material evidence pointing to the absence of a state of non-compliance with the conditions required by the Directive and the regulations, and Regulation 22 in particular.

63. It follows that it is not, as the Claimant contends, imperative that slow-growing genotypes should be used, for on the evidence a balance can be achieved in the competing considerations of animal welfare arising in the use of restricted feeding regimes."

32. The judge concluded his judgment with a short section headed "Balancing the needs of animals and the commercial interests of intensive farming". It appeared to the judge that at times Mr Singh came close to formulating an absolute principle in connection with the Convention, the Directive and the regulations. He seemed to suggest that, once he had identified facts which caused adverse consequences to broilers, the law required only one conclusion, prosecution and an end of the environment in which the breaches occurred. The judge considered that Mr Singh urged too much. The ethical position could be taken to be fully and sufficiently expressed in the Convention, upon which the European Union had acted. It was impossible to conclude that the raft of measures, including not just legislation but codes, advisory bodies, continuing research, the existence of veterinary and welfare divisions and the existence of monitoring and inspection teams were not sufficient evidence of an ample and effective response to the ethical call from the European Union. The Directive plainly contemplated that minimum standards should be adopted for ethical and for market purposes. The market created the constraints which gave rise to the need for protective measures, but the tenor and content of the Directive was not the pursuit of absolutism in standards. "It is imperative for the enforcement of ethical standards [to recognise] minimum standards of welfare of animals in intensive farming. The evidence does not disclose a general position in which the one is being sacrificed for the other but an enormous input of learning, research, consideration and measures of implementation which will continually improve the standard of the conditions in which broilers are reared."

Grounds of appeal

33. The essential grounds of appeal are that the judge misconstrued or misapplied the words "to promote a positive state of well-being" in paragraph 22 of the regulations. The submission is that this phrase is a distinct requirement to be complied with separately from and in addition to the other parts of the paragraph. Chickens who are chronically hungry are not in a positive state of well-being and a feeding regime which leaves them chronically hungry does not promote such a state. The judge was wrong to say in paragraph 53 of his judgment that there were two areas where a balance must be considered. The last eight words of paragraph 22 are not to be considered as a matter of balance. It is not permissible to compromise some requirements of the regulations in order to achieve others. All the requirements of the regulations must be complied with. In any event all relevant requirements could be complied with, if slower growing genotypes were used.
34. The grounds of appeal also contend that the judge was wrong to conclude that the needs of animals can be balanced against the commercial interests of intensive farming. Insofar as the judge may have so considered, it was not necessary to his decision. Mr Anderson, for the respondent, disclaims reliance on commercial interests or any balance involving them. I need say no more about this ground of appeal.

Submissions

35. Mr Singh submits that the disparity in the amount of feed given to ordinary broiler chickens and the amount given to breeders provides a stark indication of the extent of deprivation imposed on breeders. It cannot be that the well-being of both groups of birds is positively promoted when the disparity between their feed is so great. The breach of paragraph 22 of Schedule 1 to the regulations which this connotes is not reduced or eliminated by the fact that reduced feed improves some features of the birds' well-being.
36. It is suggested that the judge went wrong because he did not recognise sufficiently the extent of the disparity. I do not find this submission persuasive. The first graphic comparison in paragraph 50 of the judgment quite clearly shows the disparity between restricted and unrestricted quantities of feed. Nor is this quantitative comparison persuasive, when Mr Singh does not argue for wholly unrestricted feeding with its attendant heart and leg problems. Indeed, one of the claimants' difficulties is that the evidence concentrated on this quantitative comparison, without considering in detail any intermediate feeding regime with whatever advantages and disadvantages it might have. This is not surprising when the tenor of the scientific evidence is that the restricted regime generally adopted is regarded as the best compromise – see for example paragraph 85 of the Code, which I quoted earlier in this judgment – "the weight of the present evidence is that the overall welfare of the [breeding] bird is better if feed is restricted".
37. Mr Singh submits that each part of paragraph 22 of the regulations has to be satisfied. This includes that the birds must be fed in sufficient quantity to promote a positive state of well-being. The requirements are cumulative. The final eight words are not introduced by words such as "and thereby …". The last eight words must have a content additional to that of the preceding words. The judge was wrong to moderate the application of the last eight words by balancing well-being against other aspects of health and welfare; wrong to start from the given that intensive farming with presently used genotypes is to be accepted. The balancing exercise undertaken by the judge goes against paragraph 29 of schedule 1 of the regulations, by which no animals shall be kept for farming purposes unless it can reasonably be expected, on the basis of their genotype or phenotype, that they can be kept without detriment to their health or welfare. The welfare dilemma would not arise if slower growing genotypes were used.
38. Mr Anderson for the respondent accepts that restrictive feeding of broiler breeders during a substantial part of their first 20 weeks results in persistent hunger. Restrictive feeding brings both benefits and detriments to the birds' welfare. Metabolic disorders are reduced and there are fewer premature deaths. There are also improvements in reproduction. Restrictive feeding does not compromise fundamental bodily functions nor increase aggression. But the birds are persistently hungry and have changes in behaviour which have been associated with physiological stress. There is no reliable way of measuring psychological stress caused by hunger, if that is a meaningful concept for chickens. Hunger is a natural physiological state which motives feeding.
39. Mr Anderson suggests that the appellants' submissions construe paragraph 22 of schedule 1 of the regulations as imposing a strict obligation on owners and keepers of broiler breeders to feed their birds a sufficient amount to promote a positive state of well-being; that this obligation is breached by restricted feeding, because this leaves the birds persistently hungry; that the breach renders the owners and keepers liable to prosecution; and that DEFRA is in breach of its public law duty by not prosecuting or, at least, by tolerating the unlawful restricted feeding.
40. Mr Anderson submits, correctly in my view, that the obligations in paragraph 22 are not strict in law. They are predicated on regulation 3(2). This requires owners and keepers to "take all reasonable steps" to ensure compliance with the requirements of schedule 1. He also submits, again correctly in my view, that there is a degree of latitude in the verb "to promote", in contrast with the preceding verbs "to maintain" and "to satisfy". If you promote something, you do not necessarily achieve it in full. It is not correct, submits Mr Anderson, that every element of paragraph 22 has to be independently and strictly achieved. That would have overtones of the claimants' first ground for judicial review, which the judge rejected and upon which there is no appeal. What is required is that owners and keepers should take all reasonable steps to achieve a number of aims, including the promotion of a positive state of well-being. If the aims are not entirely compatible, a balance is necessary.
41. A duty for owners and keepers to take "all reasonable steps" arises in part because many of the concepts in the Annex to the Directive and the schedule to the regulations are general and depend on scientific or veterinary value judgements. The judge correctly recognised this in the part of his judgment which dealt with the first ground for judicial review. To impose strict liability for such concepts would produce difficulty and injustice. The imposition of a duty to take all reasonable steps produces a fair and workable legal structure, enforceable by inspection, assessment, advice and instruction, with prosecution and criminal penalties as a last resort. Mr Anderson could have added that the defence in regulation 13(2) is a further softening of the edges. Compliance with the recommendations in paragraph 85 of the code, for instance, would tend to establish compliance with the relevant regulation. He could yet further have added that compliance with regulation 3(1) -"take all reasonable steps to ensure the welfare of animals …[and that they] are not caused unnecessary pain, suffering or injury" – could be incompatible with separate and strict compliance with the last eight words of paragraph 22 taken alone.
42. Mr Anderson submits that "well-being", however defined, connotes a composite state in which there may need to be compromises between incompatibles. Unrestricted feeding may well result in obesity to the detriment of good physical health. It would so result for broiler breeders. Restricted feeding may result in hunger, but also results in the benefits which the evidence identifies. To feed a chicken so that it is obese and unhealthy does not promote its well-being. A balance is necessary. The best balance positively promotes the bird's well-being. An owner or keeper cannot be in breach of the last eight words of paragraph 22 simply because a broiler breeder experiences hunger in the interests of its own longevity, reproductive capacity and good health. I note in passing that Mr Singh had to accept some elements of this submission when he accepted that his clients were not promoting unrestricted feeding of broiler breeders with its attendant detriments. This left him in difficulty when the evidence did not sustain an intermediate feeding regime.
43. Mr Anderson further submits that the Directive and the regulations presuppose intensive farming of animals. The question whether a particular genotype is capable of being kept without detrimental effect to its health and welfare is to be resolved under paragraph 29 of the schedule to the regulations. The claimants rightly abandoned reliance on this paragraph before the hearing before the judge.
44. Mr Anderson submits that the evidence does not establish that individual owners and keepers are routinely in breach of the last eight words of paragraph 22 because, as is accepted, young broiler breeders are persistently hungry. He points to balancing features of the evidence which I have mentioned earlier in this judgment. He could also point in summary to the judge's finding in paragraph 60 of his judgment. Insofar as this contains an evaluation of the evidence, it is not open to challenge in this court. Thus, leaving aside for the moment the last eight words of paragraph 22, all the requirements of the paragraph are met by owners and keepers who comply with DEFRA's understanding of what the balance implicit in the paragraph requires. Further, if all those requirements are met, broiler breeders are fed in sufficient quantity to promote a positive state of well-being, not least because,

if they were fed more, this would be to the detriment of their good health.

45. In short, Mr Anderson submits that well-being is a balanced amalgam of a number of factors. It is incorrect to point to a single detrimental element to conclude that an animal's well-being is not positively promoted because the animal has a less than perfect existence. The duty imposed by regulation 22 is not absolute, but heavily qualified. The evidence does not establish that the hunger consequent on the restricted diet given to broiler breeders for part of their lives is incompatible with their positive well-being.

Discussion

46. The claimants have struggled throughout these proceedings to identify the relief which they ask the court to give them. This is not just a matter of form. It is symptomatic of the problems underlying their whole case.
47. As I have said, the judicial review claim form sought a mandatory order requiring DEFRA to prosecute any owner or keeper who does not supply broiler breeder chickens with adequate food. The form of declaration which they offered to Newman J – see paragraph 51 of his judgment – would still have declared that DEFRA's policy of not prosecuting was unlawful. Any question of an obligation to prosecute has now rightly fallen away. The court would rarely, if ever, order a public authority to prosecute and certainly not in the present case.
48. The requirements in schedule 1 of the regulations are placed on owners and keepers. I do not see how DEFRA could sensibly prosecute owners or keepers who operate a feeding regime for broiler breeders to which paragraph 60 of Newman J's judgment applies.
49. In my judgment, if an owner or keeper feeds broiler breeders so that their diet is wholesome and appropriate to their age and species and sufficient to maintain good health and satisfy nutritional needs (paragraph 60 of Newman J's judgment), there is no unlawful contravention by the owner or keeper of the last eight words of paragraph 22 if, without more, the chickens are for part of their immature lives persistently hungry. My reasons for this view, in agreement with Mr Anderson's submissions, include:

(a) promoting an animal's positive well-being requires a balancing of factors which may conflict. Well-being is a composite state which cannot be split into compartments each of which is to be promoted separately. An over-fed chicken may be an unhealthy chicken, even if it is to be supposed that, being over-fed, it is temporarily happy.

(b) a lawyer's dialectical search for separate possible content in the last eight words of paragraph 22, if the other requirements are all fulfilled, may in the circumstances be an unreal exercise. Yet performing the balance is itself a content for those words.

(c) the last eight words impose no discrete strict obligation. The obligation is "to take all reasonable steps" and "to promote".

(d) the evidence indicates that, if broiler breeders were fed more, that would tend to be detrimental to their health and welfare and might cause them unnecessary pain, suffering or injury. There would then be a contravention of regulation 3(1) – hence a further need for a balance.

(e) it looks as if owners and keepers could have material contributing to a defence to a prosecution under regulation 13(2), in that they might show that they had complied with a statutory welfare code.

(f) paragraph 22 has, in my view, to be concerned with the actual animals which owners or keeper have. You start with the genotype that is being grown. An owner or keeper cannot contravene paragraph 22 only because he does not have a different genotype.

Thus, prosecution is not appropriate, solely on the general facts presented, and the court could not order it. Owners and keepers are not on the facts presented routinely contravening paragraph 22. Further, the court could not possibly hold that they were acting unlawfully upon general evidence only, with no owner or keeper represented before the court. That is not of course to exclude the possibility of particular owners or keepers being prosecuted upon particular additional facts peculiar to them.

50. The claimants now seek declarations to the effect that a restricted feeding regime for broiler breeder chickens is in breach of the regulations and the Directive and that DEFRA are wrong in law in concluding otherwise. There is, in my view, no content of the Directive additional to or stronger in the claimants' favour than in the regulations. The appeal proceeded on this basis.
51. The claimants' Note, submitted at the request of the court after the conclusion of oral submissions to clarify the relief now sought, seeks to resurrect reliance on paragraph 29 of schedule 1 of the regulations. I do not consider it open to the claimants to do so. They abandoned reliance on this paragraph before the judge. It did not feature in their grounds of appeal, nor, other than as context, in Mr Singh's oral submissions. The respondent have not had a proper opportunity of dealing with a case based on that paragraph. My first impression is that such a case would have many of the difficulties of the case under paragraph 22.
52. The claimants' case has to establish unlawfulness by DEFRA. Absent an unlawful failure to prosecute, the heart of the case is that DEFRA should take steps to compel owners and keepers to use one or more slower growing genotypes and that not to do so is unlawful. The view in the first part of this sentence is one with which some or many might agree, although doubtless a persuasive opposing view might also be expressed. The proposition in italics is not, however, in my view established by reference to paragraph 22 of schedule 1 of the regulations, on which the claimants' case depends. As I have indicated, contravention of paragraph 22 by owners and keepers is not established on the facts presented. The paragraph starts with the actual animals used. It may or not be desirable to change the normally used genotype, but that is a question of policy whose enforcement against DEFRA would require different legislation. In short, legislation intended to see that owners and keepers of animals feed their animals properly cannot be used as a vehicle for compelling DEFRA to require the owners and keepers to keep different animals.
53. For these reasons, I would dismiss this appeal.

Lord Justice Sedley :

54. Departments of state, for the best possible reasons, seek to regulate by consensus rather than by coercion. But where Departments are charged with the implementation of rules carrying criminal sanctions, a tension can develop between advice and enforcement. In such situations there is an ever-present risk that invigilation and, where necessary, prosecution will become subsumed in the pursuit of consensus.
55. The fear of the appellants is that this is what has happened in relation to the feeding of broiler breeders. They suggest that the Department responsible for enforcing criminal sanctions against lawbreakers has settled, under commercial pressure, into a mindset which accepts as normal and therefore innocent a system which in reality compromises the birds' wellbeing and so infringes the law.
56. But in my judgment it is not possible for this court to say, on the existing evidence, that the standard system of feeding broiler breeders is unlawful – and nothing less will do for the appellant's purposes. There is of course no single measure of wellbeing: it is from the totality of conditions that a creature's wellbeing – its net wellbeing, one might say - has to be gauged. Here I accept that the behavioural evidence shows that breeders are distressed by the low level of feeding to which they are confined for their first 20 weeks, and that this on the face of it is inimical to their wellbeing. We do not know, however, what level of feeding would assuage the breeders' hunger and thereby, as I accept, help to promote their net wellbeing, without the concomitant risk of compromising it by overfeeding. The only countervailing evidence is derived from broilers, fed ad libitum and in a number of respects the worse for it. If evidence were to emerge which enabled an identifiable deficit in net wellbeing to be attributed to a measurable shortfall in feeding, either generally or in particular flocks, I do not doubt that the Department would have to think again about prosecution.
57. What complicates the issues considerably is that the developmental peculiarities of these birds, which make diet and growth to a significant degree antithetical, are genetic. This is why much of the appellants' critique of the feeding system is in fact directed to the genotype. But the selection of genotypes is beyond the reach of the measures at issue in this appeal. It may nevertheless be for consideration whether, if the ingredients of an offence are otherwise present, the use of a genotype which makes suffering unavoidable affords a defence.
58. For the present, in agreement with May LJ, I consider that this appeal fails for want of evidence to show that an offence is necessarily being committed in the typical situation described in the literature.

Lord Justice Judge:

I agree that this appeal should be dismissed for the reasons given by May LJ.