3rd May 2023
Scrolling though Instagram while trying to think of a legal angle on the coronation worth writing about I came across this:
As it happens I have a lot of time for the broadcasting of Chris Packham and Megan McCubbin, and for my fellow Brummie Benjamin Zephaniah, and so I thought this may be an interesting case to write about for a blogpost.
What is being described as a “Frankenchicken”?
According to Zephaniah: “Decades of selective breeding have turned [chickens] into monstrous frankenchickens who can barely carry their own weight, and who lie in crowded barns, being burned by their waste. We should not be treating animals like this.”
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The applicant – The Humane League – was kind enough to share their legal arguments with me.
At the heart of this legal case is a paragraph.
It is paragraph 29 in a schedule, in a schedule to some regulations, which are in turn regulations made under an Act of Parliament.
And this paragraph 29 provides:
“29. Animals may only be kept for farming purposes if it can reasonably be expected, on the basis of their genotype or phenotype, that they can be kept without any detrimental effect on their health or welfare.”
(My emphasis added, for a reason which will become obvious.)
The schedule containing this paragraph has effect by reason of regulation 4 of the relevant regulations, and this provides:
And these regulations were made under section 12 of the Animal Welfare Act:
It is in this elaborate way that many things are regulated: provisions within provisions within provisions – a legislative pass-the-parcel.
The applicant in this case is contending the government misunderstands paragraph 29.
The applicant says paragraph 29 prohibits the keeping of animals for farming purposes unless it can reasonably be expected that, on the basis of their genotype or phenotype, that they can be kept without any detriment effect on their health or welfare.
The applicant says the government is in turn contending that paragraph 29 does not establish any such prohibition “and, moreover, [the government] disputes that the word “kept” refers to keeping at all”.
(I do not have access to the government’s legal argument.)
The applicant then contends that because the government misunderstands paragraph 29 the government thereby makes two further legal errors.
First, the misunderstanding means that the government has adopted and maintains policies and practices, including a Code of Practice and a system of monitoring and enforcement, founded on legal error – including a policy of non-enforcement.
And second, as the policies and practices do not discriminate against those who in breach of the paragraph, there is a consequential lack of equal treatment between producers.
The applicant’s press release sent to me states:
“The Department of Environment, Food and Rural Affairs (Defra), the defendant in the case, argues that it has no policy which condones or permits the use of Frankenchickens, despite fast-growing breeds being standard in the chicken industry.
“The case also challenges the ‘trigger system,’ Defra’s monitoring system aimed at detecting welfare issues associated with conventional chicken breeds, of which the overwhelming majority will be fast-growing.
“The trigger system requires slaughterhouse vets to report problems, but only if they occur above a given threshold – which The Humane League argues is far too high.
“A final ground of the case argues that the system in place is creating unequal treatment between chicken producers that comply with the law and those who do not.”
This, of course, is not an animal welfare blog – but from a law and policy perspective what is fascinating – and clever – about this case is that the applicant is seeking declaratory relief.
This means the court is being invited to declare the meaning of a legal instrument, in this case paragraph 29.
And this is a perfectly proper thing for a court to be asked to do.
The court is not being asked to directly quash any policy, but to say what a legal provision means.
And a paragraph deep in a schedule to regulations made under a statute is as much a statutory provision as section 1 of any Act of Parliament you can think of.
It also seems that there are differing views on what paragraph 29 means – and the view contended for by the applicant in this case has survived a permission hearing and so can be taken as at least arguable.
This is therefore not a simple try-on, but something the high court thinks is a serious legal question to be heard.
The framing of the case, however, means that if the applicant prevails then it will also pull away the basis of various policies and practices based on that paragraph.
That is an ambitious case to make, but again it is a legitimate and arguable one.
If the government has based policies and practices on a misunderstanding of the law then those policies and practices can fall too.
According to ITV, Defra argues that fast-growing chicken breeds are not inherently condemned to suffer health problems and that there is no scientific consensus saying so.
A spokesperson is quoted as saying:
“We are proud to have some of the highest animal welfare standards in the world. All farm animals are protected by robust animal health and welfare legislation. This sets out detailed requirements on how farmed livestock, including meat chickens, must be kept.
The hearing is today and tomorrow.
I have no idea which side will win – though I am on the side of the chickens – but this is an example of litigation done well by a pressure group – and it is thereby an example of how such public interest litigation should be brought.
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You can read more on the Humane League’s campaign here.
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Ah, perhaps, on occasion then, “The hand of a good lawyer holds the mightiest pen. Its stroke can enlist the power of the State.”
I am on the side of the foxes too.
Glad to hear it!
If the Humane League wins, what then? In the immediate term, Defra has to change its policies.
The Tories are pretty dependent on rural/farmer votes, so if this case resolves before the next general election I expect there’ll be a line in the manifesto restoring the frankenchickens. There’s certainly not the time to force it through both houses now, without a manifesto commitment.
For 15 years, I was a licensee. I ran pubs, hotels and restaurants. I also have Aspergers, so not the wisest of career choices. I was regularly in court applying for extensions etc and needed to understand the law and it’s consequences especially when faced with an over diligent police sergeant trying to impress his Inspector. One sentence in the many rules stated that a Licence holder shall not serve or permit to be served, any person who is intoxicated.
From this I surmised that no person could be served more than their first alcoholic drink, clearly they would be intoxicated to one degree or other.
I have never found an answer to this.
It would seem that laws that will harshly penalise you can be interpreted by the institutions of state any way they wish if it means money can be made.
I think you’ll find Section 141 of the Licensing Act 2003 bars sales to “a person who is drunk”, not just intoxicated. The [a] dictionary definition of “drunk” is “affected by alcohol to the extent of losing control of one’s faculties or behaviour”.
From The Humane League’s latest press release about the case:
You were working as a lawyer who’d been called to the bar
When I met you.
*throws a Frankenchicken egg*
As long as that egg is being boiled.
(Always preferred early Humane League)
My apologies :)
“29. Animals may only be kept for farming purposes if it can reasonably be expected, on the basis of their genotype or phenotype, that they can be kept without any detrimental effect on their health or welfare.”
I don’t see how you can keep any animals for slaughter based on this law. Killing them is clearly detrimental to their health and welfare, unless it’s a case of euthanasia. But I presume that’s not the case for the vast majority of animals murdered by the meat industry.
Every day this week I have been thinking “what is David going to write about the text of the Coronation Service”. I am hoping that we will not be disappointed. There are still two days to go.
There has been some interesting liturgical analysis of the script comparing it with the much longer three hour 1953 Version.
What does David make of the invitation to the public to respond to an invitation to an Oath of Allegiance. In a Court would this have any legal standing.
Reflecting on the 1953 Coronation Script it seems to me that it stands as a form of Liturgical Contract between the new Sovereign and the People.
Given the last census shows a very secular, multi cultural and multi faith society, how can an Act of Anointing in an Anglican Liturgical context enable the new Sovereign to say that they are a King for everyone? (It is very difficult being a quietly republican Anglican under the Regime of the current Archbishops).
Well, food for thought might include this snippet ( A Salutary Tale) published by the British Library in 2011, the story of the last Charles to be crowned and the gospels upon which the English Coronation Oath was sworn, all as related by the notable lawyer and MP Sir Symond D’Ewes. https://blogs.bl.uk/digitisedmanuscripts/2011/05/the-coronation-of-charles-i-a-salutary-tale.html.
An inauspicious start to an inauspicicious reign.
The oath itself returned to haunt Charles at his Westminster Hall trial. Legally had he not bound himself to be (in Bradshaws words) “an officer in trust, established by history and the coronation oath for the protection of the people”?.
The Commissioners thought so, although (as I recall) the actual text of the oath had already been lost! I know, mere detail!
The Hon Justice Michael Kirby has written on behalf the Anglo Australian Lawyers Asoociation suggesting this was a decisive moment in English constitutional history.
Food for thought, and there is a day or two to go.
I would think that the odd thing here is the claim that the Secretary of State is misinterpreting paragraph 29, which was written by the same Secretary of State.
That makes perfect sense to a lawyer, but I’d imagine that the average non-lawyer would find it a bit of a head scratched
I think it is not uncommon for the executive to try and place meanings on the law, even at the stage of writing them, which are not how the courts will interpret them.
The SoS (or more likely one of their predecessors) might have had some idea of what they intended when they promoted the law that some draftsman drafted. But laws as passed often fail to achieve the intention of their promoter. And, sometimes, laws are passed performatively for publicity purposes, without much practical effect intended.
It’s hard to know what the argument is about without seeing the government’s interpretation that the campaigners are disputing. To me, para 29 reads as a rule describing what animals may be kept, not how to keep animals. And it is consistent that the campaigners would are pointing to this as the law that says that “Frankenchickens” (emotive term – would an enforcer of this law agree with that assessment?) shouldn’t be kept.
Meanwhile, the S12 regulations say they are about how animals may be kept, not what animals may be kept. So I don’t see that S12 regs can be the means for the monitoring and enforcement of para 29.
The real nub of the point here seems to be that there is this para 29, but there is no legal machinery to assess what is a breach of it, locate potential breaches, and enforce it. Can the campaigners really force the government to create that machinery? Perhaps para 29 was only ever a piece of performance law, a “worthy wish” written into a law, but of little practical effect because it had no machinery behind it to make it happen.
“ Scrolling though Instagram while trying to think of a legal angle on the coronation worth writing about I came across this”
Sad. I would have expected more. A unique occasion, possibly one not to be witnessed by either of us again. And that’s it. That’s all republicanism can offer!
An intriguing game to watch. The HL seem to be getting HMG to paint itself a little further into a corner. Perhaps HMG will open a new tin of grey paint. Otherwise Mrs Tweedy will put the frighteners on HMG, not a pleasant thought.
I think chickens are often kept badly, but it’s important to look at facts too. Old-style battery cages have been banned in the EU since 2012 (then including UK), and enhanced cages must be used. The specification for these is largely based on research into stress and other problems in chickens done at Edinburgh University. Enhanced cages can be as good for chicken welfare as minimal barn or free conditions. This particular work was not on chicken breeds, but looked at feather-pecking in particular as a sign of distress and stress, and how it was affected by various cage features.
The frankenchickens in question are broilers (bred for meat) whereas the caged/enhanced caged hens are layers. They are kept in very different ways & are also engineered by humans to have very different features. The two cannot be compared like for like & any improvements in caged laying hen welfare have zero impact on broilers as the breeds & husbandry systems are significantly different. The broilers have been engineered to grow so fast that they have an extremely limited life expectancy (if not slaughtered at an early age) & often experience extreme welfare-impacting deformities in their short lives before reaching slaughter age. Layers do not have exactly these issues but they suffer reproductive illness and often have other issues such as stress, feather loss and injuries from attacks by their peers due to overcrowding. This is to say nothing of the permitted mutilation.
I’m not convinced that paragraph 29 means what The Humane League hopes it does. It seems to me that the most important word is “kept”. By regulating that, it allows a comparison to be made between the circumstances which would apply to a specific animal being kept and those that would apply if it were allow to live free. If an animal is no worse off by being kept, this paragraph cannot prohibit such keeping.
However, one of the claims of The Humane League is that the animals are bred such that they are inherently doomed to suffer. It seems to me that that is not covered by paragraph 29, so that aspect of the case should fail. A more useful paragraph for addressing that issue would be 28 – “(1) Natural or artificial breeding or breeding procedures which cause, or are likely to cause, suffering or injury to any of the animals concerned, must not be practised” though that would only apply if “any of the animals concerned” includes those produced by the breeding rather than only those being bred.