England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		27th November 2003

Mr Justice Newman:

Introduction

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. 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.
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.

Broiler breeders

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.

The Parties

6. 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.
7. 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.
8. 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.
9. 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.
10. 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

11. 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.
12. 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 and implementing the Community's agriculture, transport, internal market and research policies, the Community and the Member States shall pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rights, cultural traditions and regional heritage".

I regard this provision as significant because it demonstrates the breadth and range of considerations to which Community legislation in this sphere necessarily gives rise.

The Directive

13. The recitals to the Directive, among other considerations, demonstrate the following.

(1) That in issuing the Directive the Community was giving effect to the principles laid down in the Convention.

(2) That it was necessary for the Community to make further provisions for the uniform application of the Convention and its recommendations and for specific rules concerning the application of the Directive.

(3) Recognition that the European Institutions and the Member States when drafting and implementing Community legislation, in particular on the common agricultural policy, should pay full regard to the welfare requirements of animals.

(4) Recognition that differences between Member States may distort conditions of competition and interfere with the smooth running of the organisation of the market in animals.

(5) Recognition that there was a need to establish common minimum standards for the protection of animals kept for farming purposes in order to ensure rational development for production and to facilitate the organisation of the market in animals.

14. The Directive lays down minimum standards for the protection of animals bred or kept for farming purposes (Article 1). Article 3 provides as follows:

"Member States shall make provision to ensure that the owners or keepers take all reasonable steps to ensure the welfare of animals under their care and to ensure that those animals are not caused any unnecessary pain, suffering or injury".

15. Article 4 provides:

"Member States shall ensure that the conditions under which animals (other than fish, reptiles or amphibians) are bred or kept, having regard to their species and to their degree of development, adaptation and domestication, and to their physiological and ethological needs in accordance with established experience and scientific knowledge, comply with the provisions set out in the Annex".

16. Article 10 provides:-

"1. Member States shall bring into force the laws, regulations and administrative provisions, including any sanctions, necessary to comply with this Directive not later than 31 December 1999, subject to any different decision taken by the Council in the light of the report referred to in Article 8. They shall forthwith inform the Commission thereof.

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be paid down by Member States.

2. However, after 31 December 1999, Member States may, in compliance with the general rules of the Treaty, maintain or apply with their territories stricter provisions for the protection of animals kept for farming purposes than those laid down in this Directive. They shall inform the Commission of any such measures.

3. Member States shall communicate to the Commission the texts of the main provisions of national law which they adopt in the field governed by this Directive".

17. The Annex referred to in Article 4 is organised under a number of headings, for example staffing, inspection, freedom of movement, buildings and accommodation, feed, water and other substances and breeding procedures. The requirements of the Annex, whilst being clear as to their subject matter, do not lay down specific and precise requirements. Indeed, many reflect precisely the language of the Convention. As an example of the generality of language employed, under the heading 'Staffing', the Annex provides:

"Animals shall be cared for by a sufficient number of staff who possess the appropriate ability, knowledge and professional competence".

The requirement in connection with freedom of movement is in precisely the same form as Article 4 of the Convention. The requirement for inspection assumes some specificity for animals kept in a system in which their welfare depends on frequent human attention, where the requirement is that they be inspected at least once a day. But the requirement for animals in other systems is expressed as a requirement to be inspected at intervals sufficient to avoid any suffering. Mr Singh drew attention to the requirement that "accommodation and fittings for securing animals should be constructed and maintained so that there are no sharp edges or protrusions likely to cause injury to the animals", as an example of a specific obligation, adequately defined so as to be enforceable as stated. I have to say that whilst it identifies a specific, potential cause of injury to animals it lacks the specificity which would facilitate ready enforcement, namely a reference to the dimensions and character of the edges and lengths of protrusions.

18. Because of its particular significance to the arguments in this case, I must set out the requirement under the heading 'Feed, water and other substances':

"14. Animals must 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 and satisfy their nutritional needs. No animal shall be provided with food or liquid in a manner, nor shall such food or liquid contain any substance, which may cause unnecessary suffering or injury.

15. All animals must have access to feed at intervals appropriate to their physiological needs.

16. All animals must have access to a suitable water supply or be able to satisfy their fluid intake needs by other means.

17. Feeding and watering equipment must be designed, constructed and placed so that contamination of food and water and the harmful effects of competition between the animals are minimised.

18. No other substance, with the exception of those given for therapeutic or prophylactic purposes or for the purposes of zootechnical treatment as defined in Article 1(2)(c) of Directive 96/22/EEC^[1], must be administered to an animal unless it has been demonstrated by scientific studies of animal welfare or established experience that the effect of that substance is not detrimental to the health or welfare of the animal".

19. Finally so far as the Annex is concerned, under the heading 'Breeding procedures', it is provided:-

"20. 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.

This provision shall not preclude the use of certain procedures likely to cause minimal or momentary suffering or injury, or which might necessitate interventions which would not cause lasting injury, where these are allowed by national provisions.

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

Domestic Implementation

20. The Directive was implemented in England by the Welfare of Farmed Animals (England) Regulations 2000, SI 2000/1870 ("the Regulations"). They were made pursuant to the powers conferred by section 2 of the Agriculture (Miscellaneous Provisions) Act 1968. The scheme and layout follows the Directive by setting out the contents of the Annex in a Schedule (Schedule 1). But it is of central importance to the argument of the Claimant that, whilst Regulation 3 is materially identical to Article 4, it must be distinguished in two respects. Whereas Article 4 states that "Member States shall ensure that the conditions under which animals … are bred or kept comply with the provisions set out in the Annex", Regulation 3(2) places the burden of complying with the requirements in Schedule 1, upon owners and keepers of animals and further expresses the obligation as a requirement that they "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".
21. Schedule 1, it should be said, does not throughout follow the precise terms of the Annex. For example, in connection with food and diet, paragraph 22 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 wellbeing".

The words emphasised are additional to the requirements imposed by the Directive. Again, paragraph 24 of Schedule 1, which transposes paragraph 15 of the Annex, provides:

"All animals shall have access to feed at intervals appropriate to their physiological needs (and, in any case, at least once a day), except where a veterinary surgeon acting in the exercise of his profession otherwise directs".

22. Regulation 13(1)(a) provides that a person who, without lawful excuse, contravenes or fails to comply with any provision of the Regulations, shall be guilty of an offence under section 2 of the Agriculture (Miscellaneous Provisions) Act 1968. Section 7 of the Acts sets out the maximum penalty for a conviction under section 2 as "Three months imprisonment, or a level 4 fine". However, Regulation 13(2) provides that in any proceedings against an owner or keeper for a failure to comply with (among others) Regulation 3(2), the owner or keeper may rely on his compliance with any relevant recommendation contained in a Statutory Welfare Code (as to which see Regulation 10 of the Regulations) as tending to establish his compliance with the relevant Regulation. No similar provision appears in the Directive.

The Grounds of Challenge

23. Permission was granted to challenge three matters:

(1) The failure of the Defendant properly to implement and enforce Article 4 of Council Directive 98/58/EC of 20^th July 1998 concerning the protection of animals kept for farming purposes.

(2) The failure of DEFRA to apply the correct burden of proof when deciding how to enforce the requirements of Article 4 of the Directive and paragraph 21 of the Annex thereto.

(3) The failure of DEFRA to comply with paragraph 14 of the Annex to the Directive (paragraph 22 of Schedule 1 to the Welfare of Farm Animals (England) Regulations 2000 SI 2000 1870 by refusing to adopt a policy of prosecution in cases where broiler breeder chickens are subjected to restricted feeding practices, which lead to the birds experiencing chronic hunger.

The Claimant has not pursued Ground (2).

Ground (1) – Failure properly to implement the Directive

24. It has not been suggested that the terms of the Directive prevent a Member State imposing the Article 4 obligation upon owners and breeders, notwithstanding that by its terms the Article placed it upon the State. The question which has been raised by the Claimant is whether the Directive allows a Member State any choice or discretion when legislating in connection with the character or terms of the obligation it imposes on owners and breeders. Given the range of conditions governing the keeping or breeding of animals with which compliance is required, although the Directive does not require a Member State to adopt sanctions, effective implementation without legal sanction would be difficult to achieve. Since Article 4 expresses an unqualified obligation ("shall ensure"), had it been transposed in its precise terms but as an obligation on owners and breeders, it seems plain that it would have led to the creation of offences of strict liability.
25. Mr Singh accepted that this conclusion was a consequence of his argument, but in response he submitted that it was open to the Government to adopt, for example, a system of administering cautions or serving notices to act as prior restraints on the institution of criminal proceedings, which procedures could act so as to ameliorate the harshness of the law without compromising the content of the objective which the Directive required to be transposed. His argument on this part of the case involved a close examination of the distinction between "the result" which must be transposed and the method of achieving the result, which is set out in Article 249 of the EC Treaty and, as we shall see from the European cases, has received attention from the European Court of Justice from time to time.
26. Mr Singh's argument involved the following steps.

(i) Article 249 of the EC Treaty provides that a Directive is binding on Member States as to the result to be achieved, but leaves to the national authorities the "choice of form and method" by which that result is achieved.

(ii) One must consider whether a Directive has been properly implemented by determining the result which the Directive requires Member States to achieve. A distinction is to be made between a "conduct result" and "an end result" (a state of affairs).

(iii) In this case the obligation is one under which the Member State must bring about a certain state of affairs, namely an end result.

(iv) The state of affairs required by the Directive is one in which no animal in any Member State is bred or kept unless the conditions in the Annex are all met.

(v) By choosing to require owners and breeders only to take all reasonable steps to ensure the specified result is achieved the Government has treated the obligation as a "conduct result" and not "an end result".

(vi) If owners and breeders do not conduct themselves as they should, there will be no coercive power available to ensure the specified result is achieved.

27. He relied upon a number of European cases including Case C-131/88 Commission v. Germany [1991] ECR 1-825, Case C-190/90 Commission v. the Netherlands [1992] ECR 1-3265, Case 412/85 Commission v. Germany [1987] ECR 3503 and Case 363/85 Commission v. Italy [1987] ECR 1733.
28. Before turning to the cases, I have the following comments to make about the argument. Where a Member State transposes Article 4 by legislating so as to impose the burden upon owners and breeders it departs from the words of the Directive and legislates so as to control the conduct of owners and breeders. Either Mr Singh's argument must be that this departure does not amount to a "choice of form and method" within Article 249 of the EC Treaty or, if it is, it is outside the margin of discretion allowed to a Member State in making a choice of form and method and amounts to a derogation from the level of achievement set by the Directive. If it is necessary to choose between the two, I prefer to regard the legislative step as a "choice of form and method" which is open to a Member State. This conclusion seems to me to be consistent with the concession which has been made that the State can discharge its obligations by imposing a burden on owners and breeders. Further, the terms of Article 4, unlike Article 3, do not authorise delegation and if it is allowed, there must be a legal basis for it. In my judgment, authority is to be found in Article 249 and also Article 10 of the EC Treaty which provides:

"Article 10

Member States shall take appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community's tasks.

They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty."

29. Mr Singh relied upon Article 3 as demonstrating that, in respect of closely related and similar subject matter, the nature of the burden to be imposed upon owners and breeders was expressed as an obligation that they shall take reasonable steps to ensure the conditions do not arise. He submitted that had the Directive intended it, Article 4 could have been similarly expressed. In my judgment, rather than the absence of the words from Article 4 being, as Mr Singh submitted, indicative of a deliberate legislative act, intended to give rise to a significantly different obligation in Article 4, the difference appears to me to be capable of pointing in the other direction. First I can see no clear reason why owners and breeders should stand in a different position in respect of the same conduct according to whether it is regarded as an Article 3 or 4 case. But more than that, whilst the overlap is significant, the breadth and reach of the Article 4 obligations demonstrate the need for a Member State to have a choice as to the "form and method of implementation". Further, if the same or similar obligations can be imposed by reference to Article 3, why should a Member State be unable to implement Article 4 in a similar manner?
30. In my judgment, the true meaning and effect of Article 4 as a State obligation is to be derived not just from the language of the Article itself, but also from an examination of the contents of the Annex to which it refers. I have already indicated that the content of the Annex is, in many respects, no more specific than the language of the Articles of the Convention. Further, many of the paragraphs incorporate concepts whose application depends on scientific or veterinary value judgments, e.g. the giving of "appropriate care" (paragraph 4) and "space" (paragraph 7), "suitable accommodation" (paragraph 4), the "avoidance of unnecessary suffering" (paragraph 7, 14), "sufficient light" (paragraph 11), "necessary protection from weather" (paragraph 12), "appropriate steps to safeguard health and wellbeing" (paragraph 13) and "appropriate and sufficient diet at appropriate intervals" (paragraphs 14 and 15). Paragraph 18 refers to the effects of a substance which must not be administered to an animal unless "it has been demonstrated by scientific studies of animal welfare of established experience that it is not detrimental to the health or welfare of the animal".
31. These concepts, so expressed, have been carried forward into the Regulations. Because of their lack of certainty, they would give rise to particular difficulty if they were treated as obligations giving rise to offences of strict liability. They are general in terms, involve matters of judgment and also concern matters which are contemplated to be the subject of change. The common law leans against offences of strict liability. The position is encapsulated in the statements of Lord Reid in Sweet v. Parsley [1970] AC 132, 148-150:

"There has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did" (at p.148).

"It is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that it is not necessary"(at p. 148).

32. Further, Strasbourg jurisprudence has underlined the importance of certainty in legislating to create criminal offences. Injustice will be occasioned where prosecutions are taken in circumstances where the law has not specifically defined the precise conduct which is prohibited. Nor can I accept that adequate amelioration of the position will be provided, as Mr Singh suggested, by warnings and cautions. As Lord Bingham observed in R v. K [2002] 1 AC 462:

"24. The rule of law is not well served if a crime is defined in terms wide enough to cover conduct which is not regarded as criminal and it is then left to the prosecuting authorities to exercise a blanket discretion not to prosecute to avoid injustice.

33. According to Mr Noble, the head of the Animal Welfare Division in the Department, the general approach adopted when drafting the Regulations to implement the Directive was to follow the wording of the Directive as closely as practicable, and to retain any higher national provisions that were contained in the Welfare of Livestock Regulations 1994 (SI 2126): for example, the requirement that animals be fed "so that they have a positive state of well-being". But, notably, the Government considered the use of the word "ensure" to be too absolute and difficult to explain and enforce in respect of chicken producers. Further, the Department wanted to avoid the imposition of criminal penalties in circumstances where the act constituting the offence was outside the control of the keeper or owner. I regard these considerations as being of high importance to a Member State and as within the margin of discretion allowed.
34. There was a public consultation exercise in connection with the Regulations to which the Claimant responded. It did not then object to the terms of Regulation 3(2) that owners and keepers "should take all reasonable steps to ensure" that the conditions in the Schedule were adhered to. Further, the Government took the view that an enforcement system based on inspection, assessment, advice and instruction to owners and breeders backed by criminal penalties represented the most effective way for the United Kingdom to meet its obligations under Article 4 of the Directive.
35. The Government's intention to proceed by way of advice and instruction was implemented by the issue of a Code of Recommendations for the Welfare of Meat Chickens and Breeding Chickens (the Code to which I have already referred). As I have indicated, it was this Code which incorporated recommendations made by the FAWC in 1992 and 1998. The Code deals with each of the subject headings in the Annex to the Directive.

The Case Law

36. If the true view of Mr Singh's argument is that it depends upon a literal approach to interpretation then, as he acknowledges, case law is against him. See Case C-190/90 Commission v. Netherlands [1992] ECR 1-3265, para 17:

"[T]he transposition of a Directive into domestic law does not necessarily require that its provisions be incorporated formally and verbatim in express, specific legislation".

To this Mr Singh's response is that, if a State chooses to transpose verbatim, it should not qualify the language in such a way as to lead to a lack of correspondence with the terms employed by the Directive. He relies upon Case 412/85 Commission v. Germany [1987] ECR 3503, where a general prohibition on the deliberate killing or capture of species of birds was transposed so as not to apply where the acts concerned took place in the course of the normal use of the land for agriculture, forestry or fishing purposes or in the context of the exploitation of the products obtained for such activities. The transposition was held to contain derogations not meeting the requirement of the Directive.

37. In my judgment, the reasoning of the Court does not support the conclusion that a verbatim transposition cannot be qualified by additional language. The German legislation drew a distinction between the intentional killing, capturing, disturbing, keeping or selling of wild birds, which it prohibited, and acts "in the course of the normal use of the land for agriculture, forestry or fishing purposes". The Court concluded that the distinction was too imprecisely drawn. It concluded that "… the concept of the normal use of land and the concept of an unintentional infringement of the provisions for the protection of birds belong to two different legal planes". In the absence of "normal use" being defined one could not equate normal use with unintentional actions and therefore the legislation created too broad a derogation from the requirements of the Directive.
38. The cases in the European Court point to two considerations as having an important bearing on the question whether a Directive has been properly transposed. First, consideration whether "the general legal context of the provision at issue fails effectively to ensure full application of the Directive": Case C-300/95 Commission v. UK [1997] ECR 1-2649, para 33. Secondly, consideration as to the nature of the obligations imposed, because:

"… there may be great differences in the types of obligations which Directives impose on the Member States and therefore in the results which must be achieved". Case C-60/01 Commission v. France [2002] ECR 1-5679.

39. The obligation at issue in Commission v. France concerned precise minimum temperature and oxygen values to be achieved by incineration plants by a stated time-limit. It required "very precise and specific results after a certain period". The Court distinguished such a type of obligation from:

"Directives [which] lay down that Member States are to take the necessary measures to ensure that certain objectives formulated in general and unquantifiable terms are attained, whilst leaving them some discretion as to the nature of the measures to be taken" (para 27).

40. The existence of a discretion in a Member State to assess the need for and character of the measures to achieve the required result is not disputed. Nor is it in doubt that the Directive must be secured fully, not only in fact but in law. The answer to the question raised by this ground of challenge turns on the application of these principles to the obligations imposed by the Directive and the result achieved by the Regulations.

Conclusions

41. (1) The objectives to be achieved are expressed in general and unquantifiable terms. It follows that a Member State has a discretion to choose the methods whereby the Directive is fully secured, in fact and in law, and the adequacy of the transposition turns upon consideration of all the measures and not upon the precise language of the measures.

(2) I am unable to conclude that an obligation upon owners and breeders to take reasonable steps to ensure the conditions contained in the Directive are complied with is such a departure from the Directive that the result required will not be achieved. If owners and breeders take reasonable steps to achieve the conditions it is likely that the conditions will be met.

(3) Whilst the state of affairs to be achieved is that animals are to be bred and kept in conditions which comply with the conditions in the Annex, there are any number of measures which a Member State can choose so as to fully implement a Directive in fact and law and:

"From the fact that a situation is not in conformity with the objectives laid down in the first paragraph of Article 4 of the amended Directive, then, the direct inference may not in fact be drawn that the Member State concerned has necessarily failed to fulfil its obligation …" (Case C-365/97 Commission v. Italy [1999] ECR 1-7773, para 68).

DEFRA controls and supervises measures specifically designed to "ensure high standards of animal health and welfare" (DEFRA OBJECTIVE).

(4) The state of affairs to be achieved is not to be confused with the obligation imposed on a Member State to achieve it.

(5) The suggested distinction between an "end result" and a "conduct result" does not demonstrate a failure to implement but reflects the distinction in Article 249 between the result and the "method and form" by which the result is achieved.

(6) I do not accept that the inclusion of words qualifying the duty as one requiring, "reasonable steps", amounts to a derogation from the obligation imposed by the Directive. The qualified duty is directed towards achieving exactly the same result, namely compliance with the scheduled requirements. The fulfilment of the duty by taking reasonable steps is apt and likely to give rise to substantial compliance and is within the margin of discretion allowed to a Member State.

(7) In considering whether there has been a significant failure to achieve the aims of the Directive, regard can be had to the whole system of implementation including the Code enacted under statutory authority, the SVS inspection procedures, guidance, instruction and the availability of warning procedures, which are backed by a criminal sanction. These are not mere administrative procedures.

(8) The Defendant was entitled to take the view that best practice would not be most effectively promoted by a confrontational system based exclusively on criminal prosecution. Further, it was entitled to take the view that the imposition of sanctions for the commission of an offence of strict liability was:

(a) capable of being regarded as inherently undesirable and disproportionate;

(b) counter-productive.

(9) There is no evidence to enable the Court to conclude that there has been a failure to implement because of a protracted period of inaction in the face of failures by owners and breeders to comply with the scheduled requirements.

(10) A limited excursion into the manner of implementation by other Member States discloses Germany to have adopted an administrative sanction ("offence") "committed by anyone who acts deliberately or improperly". Sweden legislated for "offences committed deliberately or through negligence". Having regard to the limits of the excursion, I should emphasise that the results do not form part of my substantial reasoning for the conclusion I have reached that Ground 1 must fail.

Ground (2) - Restricted feeding

42. The claim under this head of challenge, if correct, would amount to a substantial step towards ending fast-growing breeder flocks. The Claimant does not deny that it has such a result as one of its objectives. Further, it is obvious to the Court, since it has seen a volume of material relating to the alleged condition of broilers bred for meat, that the Claimant desires to put an end to this form of intensive farming. Photographs of the conditions in which broilers are kept have been supplied to the Court. I do not imagine that it would be difficult to find a large number of the population to support a call that broilers should not be kept in such enclosed and densely populated conditions. But the Court is not concerned with such a broad based attack. Mr Singh's case under this ground of challenge does not invite a judgment in connection with the precise conditions under which broilers are kept. That said, his 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 so doing 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.
43. The evidence in connection with this issue is not within a short compass but, interestingly, the differences between the parties, as they have appeared in the course of full argument, are, in many respects, differences which arise out of consideration of the same scientific research papers and material. On that basis they fall within a range of differences which the Court is qualified to resolve.
44. Before turning to a survey of the material, it would be convenient if I set out the paragraph in the Regulations upon which Mr Singh relies. It is the prohibition in the following terms under the heading "Feed, water and other substances", namely paragraph 22, as follows:

"Animals should 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".

45. In the statement of Peter Stevenson, the Political and Legal Director of the Claimant, reference is made to the practice, which is adopted in the scientific literature in this field, of drawing comparisons between the quantity of food broiler breeders on a restricted feeding regime are given to eat, with the quantity they would eat if allowed to eat ad libitum. No meaning other than the literal translation, "to pleasure" has been suggested in the literature. Mr Stevenson draws attention to a paper by Dr Colin Whitehead (2002) who has spent over 20 years researching nutrition of poultry and their welfare at the Roslin Institute in Scotland. Particular reliance is placed upon the following passage from Dr Whitehead:

"More severe and prolonged feed restriction is routinely applied to broiler breeders. Intakes of 50% of normal ad libitum intake are applied for most of the rearing period with proportionately less restriction during lay".

Exactly the same passage is referred to in the statement of Mr Pritchard, but he quotes the sentences immediately following upon the words "restriction during lay", which are as follows:-

"This restriction is needed to optimise reproductive performance and may be associated with some welfare disadvantages not at least in relation to one of the 'five freedoms' (freedom from hunger). Conversely such restriction also results in the welfare benefits of considerably reduced incidences of metabolic disorders and mortality".

The point of difference is important because broiler breeders, if left to feed ad libitum, would be relieved of hunger, but at risk of "metabolic disorders and mortality".

46. The reference to the 'five freedoms' is a reference to a part of the Code of Recommendations for the Welfare of Livestock, Meat Chickens and Breeding Chickens issued pursuant to section 3 of the Agriculture (Miscellaneous Provisions) Act 1968. The five freedoms, as there expressed, result from a framework elaborated by the FAWC as a basis for the assessment of welfare and an assessment of actions necessary to safeguard welfare within the constraints of an efficient livestock industry (emphasis added). The five freedoms are:

1. Freedom from hunger and thirst – by ready access to fresh water and a diet to maintain full health and vigour;

2. Freedom from discomfort – by providing an appropriate environment including shelter and a comfortable resting area;

3. Freedom from pain, injury or disease – by prevention or rapid diagnosis and treatment;

4. Freedom to express normal behaviour – by providing sufficient space, proper facilities and company of the animals' own kind;

5. Freedom from fear and distress - by ensuring conditions and treatment to avoid mental suffering.

47. Mr Stevenson also draws particular attention to a report by J.A. Mench of the Department of Animal Science in the University of California. The article appeared in the World Poultry Science Journal in March 2002 and is headed 'Broiler Breeders: Feed Restriction and Welfare'. The article begins as follows:

"Broiler breeders are truly caught in a welfare dilemma, because the management practices that are necessary to ensure health and reproductive competence may also result in the reduction in other aspects of welfare. In this paper I review the welfare concerns associated with feed restriction of broiler breeders. Broiler breeders show evidence of physiological stress as well as increased incidents of abnormal behaviours, and are also chronically hungry. Alternative methods of decreasing feed intake, dietary dilution or the use of anorexic agents, are also discussed. Thus far, all of these methods have proven unsatisfactory in terms of body weight control, and in addition they do not necessarily improve welfare. Emphasis needs to continue to be placed on developing alternatives to, and modifications of, current feed restriction programmes in order to improve broiler breeder welfare. In addition, the use of genetic selection to decrease the need for restriction should be further explored" (emphasis added).

The legal issue or "dilemma" is whether practices "necessary to ensure health and reproductive competence" can also constitute practices which do not "promote the positive state of well-being of broiler breeders" or "maintain them in good health" (para 22 Regulations).

48. Both sides paid attention to the work of Dr P M Hocking, again of the Roslin Institute in Scotland, in a paper headed 'Measuring and Auditing the Welfare of Broilers' which was presented at the University of Bristol in May 2003. Mr  Hocking dealt with restricted feeding.

"Introduction

The body weight gains of broiler breeders are limited by feed restriction to control reproduction and mortality. If female broiler breeders are fed ad libitum, egg production and hatchability are poor and mortality is high (Table 1). Feed restriction controls ovulation rate and restores normal function to the reproductive process (see below). In males, feed restriction maximises fertility (Table 2) by controlling the size of the birds and the ability to mate (Hocking 1990; Hocking et al, 1996). High mortality in broiler breeders fed ad libitum is largely related to cardiovascular failure in females and culling for lameness in males.

Whereas the housing of commercial broiler breeders compares favourably to that of battery hens, the degree of feed restriction to which they are subject has raised concerns that they may be chronically stressed. This review will discuss the assessment of the welfare of feed restricted broiler breeders of both sexes and how it can be audited. A number of other welfare issues are present in commercial systems of production that are largely specific to this group of farm animals and these will be discussed before a brief examination of the welfare of broiler breeders in alternative systems."

49. Mr Hocking deals in great detail with the process of restricted feeding. In dealing with feed restriction in males he points out:

"Controlling body weight had undoubtedly been responsible for a large part of the decrease over time in the prevalence of musculo–skeletal disease and genetic selection for improved leg health in growing birds may also have contributed".

He also points out that aggression in males has been the focus of some concern, but states there is no evidence that feed restriction has increased the prevalence of aggressive mating or that feed restriction is associated with increased aggression. He devoted a whole section to the subject 'Assessing Hunger in Broiler Breeders':

"The objective of assessing the subjective psychological feeling of stress associated with hunger in feed restricted broiler breeders is problematic and has not been resolved. The degree of feed restriction changes with age and reaches a maximum of about 0.75 at 10-12 weeks of age as measured by the reduction in feed intake as a proportion of birds fed ad libitum (Fig 1). Comparisons of body weight or feed intake of restricted - as a proportion of ad libitum-fed birds are misleading because of the large differences in body weight arising from the disparate allocation of feed. Prediction of the feed intake of restricted broiler breeders as a proportion of the feed consumed by ad libitum-fed birds of the same body weight by regression analysis, shows that feed intake declined to 0.45 during rearing (Hocking, 1993c). Restricted birds continue to gain weight throughout the rearing period in response to regular increases in feed allocation (Figure 1). 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 rapidly consume their feed compared with birds fed ad libitum and comparisons of rates of eating (Savory et al., 1993b) are subject to the problems of comparing birds of different size, physiological maturity and prior experience, over very short periods of time (several minutes). Birds fed on restricted diets adopt different feeding strategies to those fed ad libitum. Large quantities of feed are stored in the crop of restricted birds and competition ensures that they quickly learn to consume feed as rapidly as possible, whereas birds fed ad libitum eat regularly throughout the day and night and do not store large quantities of feed in the crop. Attempts have therefore been made in our research to assess how well feed restricted birds cope with the hunger that is imposed upon them, and whether the normal biological systems for surviving limited feed supplies in natural conditions are compromised in any way.

Compared with ad libitum feeding, feed restriction is invariably associated with a change in behaviour: restricted birds spend less time resting and more time foraging (scratching and pecking the litter), drinking and spot pecking, and than birds fed ad libitum (Kostal et al., 1992; Savory et al., 1992; Hocking 1993c; Savory et al., 1993a; Savory and Maros 1993; Savory et al., 1993b; Hocking 1996; Hocking et al., 2001). An increase in the heterophil-lymphocyte ratio, the proportion of basophilic cells and an increase in plasma corticosterone concentration (recognised indexes of physiological stress) were reported in many but not all experiments (Maxwell et al., 1990; Maxwell et al., 1992; Hocking et al., 1993; Savory et al., 1993a; Savory and Maros 1993; Savory et al., 1993b; Hocking et al., 1996; Hocking et al., 2001). There is little evidence that feed restriction compromised fundamental bodily functions, as indicated by a profile of several enzyme systems and when differences were detected they were in favour of the feed restricted birds (Hocking et al., 1993; Hocking et al., 1996; Hocking et al., 2001). Freeman (1985) argued that many of the responses of the birds to perceived stressors were normal adaptations for survival and that those which would leave the animal unprotected, such as impaired immune function, are more satisfactory indices of stress. Indirect measures of immune function are generally at least as good if not better in feed restricted broiler breeders than ad libitum controls (Katanbaf et al., 1989; O'Sullivan et al., 1991; Hocking et al., 1996). Hunger and satiety are not discrete opposing states but represent two extremes of a continuous scale that might be measured by determining the strength of the motivation to feed. Research into motivation to feed, by measuring operant responses in feed restricted broiler breeders has shown that the strength of motivation is largely dependent on the size of the restricted bird in relation to its potential and, somewhat anomalously, that the motivation to feed is greater after a larger than a smaller meal (Savory et al., 1993b; Savory and Mann, 1999; Savory and Lariviere, 2000).

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. Experimental evidence by Savory and co-workers suggests that stereotypic behaviour has de-arousing properties that might help the birds to cope with the stress of feed restriction (Kostal et al., 1992; Savory et al., 1992; Savory et al., 1993a). Support for this proposal is also found in the results of an experiment that compared ad libitum and conventionally fed broiler breeders with those in which feed restriction led to body weights that were 0.24, 0.40, 0.55, 0.70 and 0.85 of ad libitum-fed contemporaries. The sum of oral behaviours (drinking, feeding, foraging and spot pecking) was similar in all 7 groups and comparable with the proportion of time spent foraging in feral fowl (Hocking et al., 1996). Furthermore, spot pecking occurs at a great frequency in restricted broiler breeders in experimental pens than in commercial flocks (Figure 3) where flock size is large and there is ready access to litter. The key practical application of these results is that restricted broiler breeders should have access to a suitable foraging substrate and it is worth noting that many studies of stereotypic behaviour in restricted broiler breeders have been conducted on birds kept in cages….The most promising long-term strategy to improve the welfare of feed restricted broiler breeders, and to prevent the degree of feed restriction becoming greater with further selection for improved feed efficiency, is genetic selection to decrease the prevalence of multiple ovulation. If broiler breeders could be selected to ovulate a single ovum in each daily cycle, a more generous feed restriction programme that optimised the welfare of the birds could be adopted. The use of genetic markers for single ovulation is promising in this respect and represents a potential solution that we are pursuing at Roslin. There is some evidence that if successful this strategy will improve welfare as dwarf broiler breeders that inherit a sex-linked gene affecting body weight are about one-third smaller than birds carrying the normal allele, have a lower number of ovarian follicles (Hocking et al., 1987) and require less severe feed restriction than conventional broiler breeders (Whitehead et al., 1987).

50. Attached to Mr Hocking's report is a useful graphic representation of the comparative feed consumption of broiler breeder females fed ad libitum and birds subject to restricted feeding.

Figure 1. (a) Feed consumption of broiler breeder females fed ad libitum (solid line) and feed allocations to birds restricted to achieve target body weight (dotted line) from 0 to 60 weeks of age and (b) actual body weights attained by the same birds.

[Diagram or picture not reproduced in HTML version - see original .rtf file to view diagram or picture]

51. It became apparent in the course of argument that the Claimant recognised that whilst its complaint was directed towards the existence of a harmful feed restriction regime, it did not seek an order that broilers be fed ad libitum under conditions of intensive farming. That followed from the evidence that it would simply give rise to other adverse consequences to the welfare of broilers. For this reason, the character of the relief sought was not that all broilers should be fed ad libitum, but that the Government should be required, by the terms of a declaration, to enforce the criminal law against all owners and breeders who practised restricted feeding. In the face of indications from the Court that principled objection could be advanced to relief being framed as a requirement upon the Government to prosecute any owner or keeper, Mr Singh accepted an opportunity to provide a suggested draft declaration, stressing that a declaration might not be needed at all, depending upon the terms of the Judgment. He submitted one or both of the following might be appropriate.

"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 Welfare of Farmed Animals in (England) Regulations 2000 and/or Council Directive 98/58 EC.

(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."

52. I am bound to say any formulation of the relief which requires the Defendant to prosecute an owner or keeper, whether by terms of a declaration or not, does not seem to me to escape from the difficulties and principled objections which can be advanced against an Order of the Court directing a prosecuting authority to exercise its powers in a particular way. That said, the Court must determine whether any illegality exists. DEFRA has concluded that restricted feeding regimes are not, in themselves, in breach of the Regulations.
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.

Conclusions

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 Claimant's 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.

Balancing the needs of animals and the commercial interests of intensive farming.

64. At times it appeared to me that Mr Singh came close to formulating an absolute principle in connection with the Convention, the Directive and the Regulations. By that I mean that 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 to the environment in which the breaches occurred.
65. For completeness and out of respect to the argument with which he advanced, I am bound to say that, in my judgment, he urged too much.

(1) The ethical position can be taken to be fully and sufficiently expressed in the Convention and the Protocol to the Treaty on Improved Protection and Respect for the Welfare of Animals.

(2) The European Union has acted pursuant to the Convention and issued the Directive.

(3) It is 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 are not sufficient evidence of an ample and effective response to the ethical call from the European Union.

(4) The Directive plainly contemplates that the measures which it regards as the "minimum standards" should be taken for ethical and for market purposes. It is the market which creates the constraints which give rise to the need for protective measures but the tenor and content of the Directive (reflecting the Convention) is not the pursuit of absolutism in standards. It is imperative for the enforcement of ethical standards recognising 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.

66. It follows this application for judicial review fails.
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MR JUSTICE NEWMAN: For the reasons given in the judgment, which I now hand down, this application for judicial review fails.

MS DEMETRIOU: My Lord, the defendant seeks its costs, to be subject to detailed assessment. I see that the claimant has put in a note of costs. I do not know if my Lord would prefer me to make submissions on the note now or wait for my learned friend.

MR JUSTICE NEWMAN: I would have thought it would be better if you were to make your submissions after Mr Singh has made his because he has not developed his. He has given us notice of some authority and some citations. So I would have thought you will not be disadvantaged if you do that. Mr Singh?

MR SINGH: My Lord, as you know from your note, we do respectfully submit that, although costs normally follow the event, there is always a discretion in the court, in the public law context in particular. Although I cannot say that there is an universal practice that in public interest cases the court will not make an order as to costs, nevertheless there are examples, including the Privy Council decision in a New Zealand case to which we made reference, and from this court, where judicial review cases have been brought by an organisation, not to vindicate its own private interest but the public interest in the rule of law and the welfare of a section of the population, perhaps for, as in this case, the welfare of animals.

So, my Lord, our introductory submission is in essence that this is one of those cases where it is just and appropriate that your Lordship should exercise the discretion that the court has not to make an award of costs.

My Lord, the points that we make in support of that are summarised in paragraph 1 of our note, and I will just briefly run through those, if I may. The first is that the claim raised serious issues of law of wider importance, including about whether the United Kingdom had correctly implemented Community Law obligations. I will not repeat the arguments, but your Lordship recalls much of the debate was about that.

Secondly, the claim raised an important issue of animal welfare, about restricted feeding regimes, where, as your Lordship has noted in the judgment, it has become clear that it has been accepted by the defendants that the birds we are referring to are hungry. But the question has been about the legal significance of that, and we again submit that it was in the public interest and reasonable that should have been ventilated in court.

My Lord, the third point we make is the point that Lord Woolf, for example, alluded to in the New Zealand Mauri case, that this is a case brought in the public interest, not for any private gain. Of course many judicial review cases, although in one sense they raise issues of public interest, any question about the rule of law and the legality of administrative action could be said inherently to raise issues of public interest. But nevertheless in my submission the lines the courts have drawn are between those cases where, say, a planning developer or the like is vindicating the rule of law, but in doing that is obviously pursuing a case for its own advantage; contrast that with cases like the New Zealand Mauri case, the ex parte Challenger case, which is referred to in the note from Mr Fordham's textbook, and the like, where it has been acknowledged that the case is brought not for private gain, but for public interest reasons.

The fourth reason we advance is that the claimant is in any view a non-government organisation of limited means, while the defendant is obviously a large government department. Obviously we are not asking for our costs, but all we are saying is that costs should lie where they fall, given the public funds that are available to the defendant.

My Lord, I do not think it is necessary, unless you would like me to, to go to the New Zealand Mauri case because we have set out in our note the only paragraph in the Privy Council judgment which is relevant to the issue of costs, and the note from Mr Fordham's handbook --

MR JUSTICE NEWMAN: I have not had a chance to look at that.

MR SINGH: I wonder if one could just briefly go to that. It is, as always, a helpful summary of cases decided by the courts, particularly in this jurisdiction. Under the heading "No Order as to Costs, (a) Public Interest Cases" the New Zealand case is referred to, then the decision in ex parte Challenger, which I have already mentioned. That was a decision of Harrison J's. No order was made in the particular circumstances, where there was a genuine case of potential importance. The claimants were of limited means and it was a human rights case. Now, I accept that this is not, obviously, a human rights case, but there were here, we submit, issues of European Community law and animal welfare issues, which are equally important.

Another example is given, Shelter, a decision obviously in the housing context, the Greenpeace case, an environmental case, (Inaudible) v Anderson. I had forgotten, I must confess, my Lord, that in that famous case during war time the ultimate order as to costs in the House of Lords was that there should not be an order. And then, my Lord, an Australian decision is referred to, an environmental case brought in the public interest, where there was no order as to costs. The Swale Borough Council v Medway Ports Authority case is an English decision. There was no order because:

"There had been a breach of legitimate expectation but no remedy was given because of delay."

And the final authority referred to is the well-known case about Mr Blackburn. "He has served a useful purpose in bringing the matter to our attention," said the court and there was no order as to costs.

Admittedly, it is not an universal practice. I note, for example, that, under "(c) Contrasting Cases", Mr Fordham's textbook refers to the ex parte Fish, (inaudible) organisation case, where it is fair to note that Glydewell LJ in 1993 said:

"The court's discretion does not apply differently or in any special way in circumstances where the costs arise in judicial review proceedings."

What I would say about that, my Lord, is that -- I recall the case. As it happens, I was junior counsel for the government in that case and what I would say about that is that the date is significant; it was decided in 1993, before, if I may say so, the recent line of authorities has really emerged drawing this line between genuine public interest cases and other judicial review cases brought to vindicate private rights, and in particular the New Zealand Mauri Council decision, from my recollection, had not yet been decided. It is certainly reported in 1994 and to the best of my recollection it was not something that one knew about when the Court of Appeal made the order for costs in the ex parte Fish (inaudible) Organisation case.

MR JUSTICE NEWMAN: I think we have probably moved on also in the past ten years in a procedural sense, in that the rules on standing have really become relaxed.

MR SINGH: Yes, indeed.

MR JUSTICE NEWMAN: So it is not an uncommon feature now to have representative bodies, pressure groups, all sorts of organisations, being accorded standing before the court, which ten years ago Glydewell LJ probably would not have been able to foresee.

MR SINGH: I think that is a accurate observation, yes.

MR JUSTICE NEWMAN: I think it gives rise to two difficulties, though, Mr Singh. It gives rise to -- in your favour, it could be said, it gives rise to the need to have some eye for where the public interest is truly being invoked or represented, as opposed to distinguishing those cases from those where, although they are representing a body of public opinion, it is not really the public interest, but the concerted pressure from a group of people who may share the same interests, who are themselves attempting to clarify the law, and it may be that the situation differs and one cannot have a situation where ad lib people are litigating with immunity from costs. So there is a difficult balance to achieve, is there not?

MR SINGH: It is certainly an issue of discretion for the court, having regard as always to all the circumstances of the case, and that is why I have not put it as highly as a general principle. But nevertheless, having regard to the particular circumstances of this case, we submit that is the just order. To address my Lord's concerns if I may, if one thinks, for example, about the law of charities, there is a public interest requirement, as I understand it, for there to be a charitable purpose but, as I understand it, it has also always been the law that you do not have to vindicate the interests of the entire public; it can be a section of the public. So I would respectfully ask your Lordship to bear in mind that it can be a perfectly proper public interest case even though public opinion may be divided, for example, on the issue.

What we would submit is that the real public interest is to bring the important issue of law to the court's attention so that what may be arguably a abuse of power or an error of public law generally can be put right, and we would also draw attention to the obvious fact, my Lord, that in this case after some detailed grounds have been put in objecting to the grant of permission, Wilson J thought it right to grant permission on the papers. So it was clearly regarded as one of the cases that ought to go forward.

Obviously at the end of the day we have lost and we acknowledge that, but we submit that the normal order is not one which is just in this case.

MR JUSTICE NEWMAN: Mr Singh, can I, without breaking your chain of submission, ask you? You say the claimants are of limited means?

MR SINGH: Yes.

MR JUSTICE NEWMAN: I do not know anything about its means. I imagine that its means are derived from the private subscription of members, is it?

MR SINGH: That is my instructions, yes. I do not have any more detailed information than that it is of limited means, my Lord. I hope that is the sort of thing that one can --

MR JUSTICE NEWMAN: I can assume, but can I also assume that, among the objects, it is in fact a limited company in some guise or another?

MR SINGH: It is. It is limited by guarantee.

MR JUSTICE NEWMAN: Limited by guarantee. Can I understand that it has among its objects, as necessary, the taking of proceedings and that those who subscribe subscribe -- whatever they do, by way of donation or membership subscription -- understanding that their money will be expended in litigation, or could be expended in litigation?

MR SINGH: I would need to take instructions. (Pause)

My Lord, as one might expect, it is not one of the express objectives of the organisation, but it is fair to observe that it is clearly an implied object, and in the past the organisation has been involved in earlier judicial review cases, either as an interested party -- an intervenor, rather -- or as a party itself.

MR JUSTICE NEWMAN: Yes, but it does not mean -- they do not have to pass a resolution or seek the members' approval to taking litigation?

MR SINGH: No, there is a board that would be involved in such a decision but not the membership generally. My Lord, may I make just one other point before I sit down?

MR JUSTICE NEWMAN: Of course.

MR SINGH: It is in connection with my Lord's point to me a moment ago about standing. We would respectfully submit, my Lord, that that is a point that if anything goes in favour of this claimant on this issue of costs, because of course in, say, a human rights case there might well be an individual, and often, for reasons my Lord can readily understand, those who are campaigning in the area might well seek to find a test case litigant who is going to qualify for public funding, and that obviously has consequences for protection against costs orders and the like. In the present context obviously there is not, by definition, going to be a human litigant because of the nature of animal welfare legislation and so the only sort of body, if ever the rule of law is going to be vindicated, which will bring such cases is likely to be an engineer like my client and it has been accorded standing. Permission was granted, no doubt because it was recognised that it is a responsible body bringing this as a genuine case. So we respectfully ask your Lordship to bear that in mind in exercising your discretion as well.

MR JUSTICE NEWMAN: Before you sit down, can I in fairness put something to you, which is in my mind?

MR SINGH: Yes.

MR JUSTICE NEWMAN: If I was minded to exercise my discretion to some degree in your favour, do I not have to bear in mind that there was one ground challenged, which introduced a large element into the case, which you abandoned.

MR SINGH: My Lord, it is obviously again one of the factors to be taken into account in the overall balance. All I would say about that, my Lord, is that again we hope we acted responsibly because we were given permission without limitation, and obviously until the defendant's evidence and detailed grounds of resistance are filed it is difficult for a claimant to know exactly how it should put its case eventually. But we have kept the issues under review at all stages and, having received the defendant's evidence and detailed grounds of resistance and in preparing for the hearing, we at that stage, which we submit was as early as was reasonably practicable, gave notice that we were not going to be pursuing that and we also obviously took into account what Wilson J had said in regard to permission.

MR JUSTICE NEWMAN: Thank you very much. Yes, Ms Demetriou?

MS DEMETRIOU: My Lord, it is important to bear in mind in my submission that the cases referred to by my learned friend are exceptional and that the normal course in these cases is that costs should follow the event. As my Lord pointed out, the standing rules have relaxed and that gives rise to a point in the defendant's favour on this issue, which is that actions brought in the public interest by campaigning bodies such as the claimant are now commonplace and, as my Lord indicated, it is important that they should not be able to pursue through litigation whichever points they deem to be in the public interest with immunity from costs. It would be inappropriate for the taxpayer to bear costs in such circumstances.

So the court does have to be very careful when exercising its discretion to depart from the normal course, in my submission. That is demonstrated by the fact in judicial review proceedings, in contrast to private proceedings, there is a procedure for organisations such as the claimant to apply for a pre-emptive costs order, which would achieve exactly the same result as the claimants are asking for now.

My Lord, the conditions that have to be satisfied by a claimant in the position of Compassion in World Farming when applying for a pre-emptive costs order are fairly strict in that they have to show at the stage at which they apply that the merits of the case are strong. So the court has to be satisfied that the claim is indeed one which is appropriate to be litigated in the public interest.

But perhaps more significantly, the court will have regard to the financial resources of the claimant, and it is normal to submit evidence of financial resources. As the Child Poverty Action Group case, which my Lord is no doubt familiar with, established, generally speaking an order will not be made unless the court finds that the claimant would probably discontinue the proceedings in the absence of the order.

The claimant did not apply for a pre-emptive costs order in this case, no doubt because it considered that it would not satisfy those conditions. There is no evidence before the court as to its financial means. One can, putting at its lowest, assume that, by virtue of the fact that it did not apply for a pre-emptive costs order, it is in a position to pay costs because it pursued the litigation knowing that there was a risk that costs would be awarded against it.

In my submission, my Lord, it would entirely inappropriate for the court to exercise its discretion to achieve by the back door something which the claimants had not been able to achieve by the proper route, by applying for a pre-emptive costs order. So in my submission there are not really any grounds in this case for departing from the normal principle that costs follow the event.

In terms of the New Zealand case referred to by my learned friend, I would note there that in the passage which Mr Singh set out in his note it was important for the court that there was an undesirable lack of clarity in an important area of law. The reason for that lack of clarity arose, my Lord will see, because different views had been expressed by different members of the Court of Appeal on a particular issue.

My Lord, this case is very different, in that your Lordship has in very clear terms found for the defendant. There is no indication in my Lord's judgment that there was any lack of clarity in the law and in my submission the principles in the New Zealand case are therefore not applicable to the facts of the present case. Unless I can help any further --

MR JUSTICE NEWMAN: No, you have been very helpful. Thank you very much indeed. Mr Singh, would you like to respond?

MR SINGH: May I reply briefly on the point about pre-emptive costs orders? My Lord, in my submission it is wrong to suggest that there is a link between those two jurisdictions. This court has two distinct jurisdictions. One is the general jurisdiction, which is at large there is a discretion under Part 44, Rule 3.1, as to whether to make any order for costs at all and that of course is because the court is well equipped after the case has been fully decided to exercise that discretion at large.

In contrast to that, the court has recognised that in very exceptional circumstances, before the court is ever in a position to know what all the factors going to its discretion are ever likely to be, at a pre-emptive stage the court may issue an order saying that there will be no order as to costs or perhaps a ceiling as to costs, no matter what the outcome, and one can readily understand why the courts have said that that is to be an exceptional kind of order, subject to very strict conditions. The fact that that kind of order was not sought or made should not in any way preclude the court in my submission from exercising its more general discretion at the post-decision stage.

The only other thing I would like to say on this is that, yes, there is a jurisdiction to grant a pre-emptive costs order but since that decision in CPAG, while a number of post-decision orders of the kind I seek today have been made by this court, so far as I am aware this court has never made in fact a full pre-emptive costs order. In practice it is very difficult indeed to obtain. But there is one case of which I am aware, in which in fact I had some role to play, the CND case last year, in which the court made a partial pre-emptive costs order. It imposed a ceiling as to the exposure to liability to costs in the sum of £25,000. But that is, as far as I am aware, the only time even a partial order has been made at a pre-emptive stage. In my respectful submission there is simply no merit in the suggestion that your Lordship should draw the link between the two different jurisdictions.

Note 1   Council Directive 96/22/EC of 29 April 1996 concerning the prohibition on the use in stockfarming of certain substances having a hormonal or thyrostatic action and of beta agonists (OJ L 125, 23. 5.1996, p.3).    [Back]