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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