AIMS v. DEFRA |
Neutral Citation Number: [2017] EWHC 1961 (Admin
Case Claim No.CO/540/2016
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
THE HONOURABLE MR JUSTICE FRASER
Between :
R (on the application of the Association Of Independent Meat Suppliers) | |
- and - Secretary of State for Environment Food and Rural Affairs | Claimant Defendant |
Hugh Mercer QC & Jessica Wells (instructed by Roythornes Ltd) for the Claimant
David Pievsky (instructed by the Government Legal Department) for the Defendant
Hearing dates: 27th and 28th June 2017
_____________________________
Approved Judgment
Mr Justice Fraser:
Introduction
This is the judgment on the Claimant’s claim for judicial review of a decision by the Secretary of State for Environment, Food and Rural Affairs in relation to the slaughtering of sheep in accordance with religious rites. The proceedings were commenced in order to challenge one particular Regulation, namely Paragraph 6(1)(a) of Schedule 3 to the Welfare at the Time of Killing Regulations SI 2015/1782 (“the 2015 WATOK Regulations”) alternatively the interpretation of the same particular Regulation and/or EU Regulation (EC) No. 1099/2009 of 24 September 2009. The 2015 WATOK Regulations govern slaughterhouses, and as the name suggests, particularly the welfare of animals in this respect. They came into force on 5 November 2015, although they were laid before Parliament before that on 15 October 2015. The Secretary of State’s department is the Department for Environment, Food and Rural Affairs which is colloquially known as DEFRA, and that is how I shall refer to the Defendant in this judgment as that is the term used in many of the documents. The Claimant is the Association of Independent Meat Suppliers (“AIMS”), a trade association or body that represents a very large number of English and Welsh abattoirs, and also wholesale meat traders. These proceedings by AIMS seek judicial review of Paragraph 6(1)(a) (alternatively DEFRA’s interpretation of it, and/or the EU Regulation) but solely in respect of the slaughter of sheep.
The United Kingdom slaughters approximately 19 million sheep per annum. This is approximately 1/3 of the total number of sheep slaughtered in the entire European Union (“EU”) and more than any other single Member State. The three other major producers in the EU are Spain, Greece and France, but the combined total of sheep slaughtered in those countries collectively remains a lower one than that of the UK alone. The meat from slaughtered sheep has been referred to in some of the evidence as sheep-meat, although it is also customarily known as lamb. These judicial review proceedings are of some importance to those involved in the UK in the commercial production of this meat for consumption both in the UK, and abroad, as a large amount is exported, both to the EU and elsewhere. These proceedings also have as their subject matter the welfare of animals, which is of wide public interest and importance. The particular context in which these judicial review proceedings are brought concerns the slaughter of sheep in accordance with religious rites.
The other relevant Articles and Regulations are dealt with in the section of this judgment below headed “The Articles and Regulations”. However, it is convenient to set out Paragraph 6(1)(a) of Schedule 3 to the WATOK Regulations at the beginning of this judgment. This states:
“Handling of sheep, goats and bovine animals during killing
6.(1) The business operator and any person engaged in the killing of a sheep, goat or bovine animal in accordance with religious rites without prior stunning must ensure that –
(a) it is not placed in restraining equipment unless the person who is to carry out the killing is ready to make the incision immediately after it is placed in the equipment;”
Paragraph 6(1)(a) is therefore directly concerned with, and directed at, the slaughter of sheep “in accordance with religious rites without prior stunning”. In order properly to understand the basis of the proceedings, it is necessary firstly to explain the requirements of religious slaughter for people of the Muslim faith, so that the meat is what is called Halal, meaning permissible. Other religious slaughter is performed in the UK for people of the Jewish faith, so that the meat is what is called Kosher. These proceedings did not involve any evidence of Kosher practices, and the evidence is exclusively concerned with Halal requirements. If the proceedings were successful, given the terms of Paragraph 6(1)(a), that could potentially have some effect upon religious slaughter for Kosher meat too. However, that is not relevant for present purposes and I refer to it for completeness only. Although the thrust of these judicial review proceedings is that AIMS seeks a declaration that Paragraph 6(1)(a) of Schedule 3 is unlawful, the proceedings only do so in so far as Paragraph 6(1)(a) affects sheep. No challenge is brought in so far as Paragraph 6(1)(a) governs the slaughter of bovine animals or goats in accordance with religious rites. This point is discussed further in the section “The Relief sought by AIMS”.
The evidence before the court for these proceedings consists of the following. For AIMS, the following witness statements were served:
Two witness statements from Mr Rizvan Khalid, who is the senior director of Euro Quality Lambs Ltd, the largest Muslim-owned slaughterhouse in both the UK and the EU. He is also a director of AIMS, and a board member of the Agricultural & Horticultural Development Board Beef and Lamb, a DEFRA-sponsored statutory body funded by a levy on the industry.
One witness statement from Mr Norman Bagley, the Head of Policy of AIMS, and a livestock auctioneer and Chartered Surveyor. Before setting up AIMS in 2001 he ran the Ripon Livestock Market for many years. He has extensive experience of the behaviour of livestock generally, and sheep in particular.
One witness statement from Dr Hanuk Anil, a veterinary scientist who has been extensively involved in research into slaughter methods, who has provided expert evidence of sheep behaviour and commented upon two video clips submitted by Mr Khalid and described in Mr Khalid’s evidence.
One witness statement from Mr Stephen Lomax, the Technical Adviser to AIMS. He is also a qualified veterinary surgeon, having qualified in 1979, and when in private practice he was involved in providing veterinary services to over 200,000 sheep. He also has held the office of Official Veterinarian on behalf of the Food Standards Agency (“FSA”), and is a farmer. He owns and farms approximately 800 of his own sheep.
Although two video clips were submitted by Mr Khalid, in pre-reading for the proceedings it proved not possible for the court to view these, despite the use of different technological platforms. At the hearing, it also transpired that leading counsel for AIMS had experienced the same technological issues. Both the parties agreed that it was not necessary for the court to view these clips, which showed two different groups of sheep being dealt with in different ways in a slaughterhouse.
The evidence for DEFRA was given in two witness statements by Ms Sue Whitehead, the senior policy adviser in the Animal Welfare and Science Oversight Management Team. She is responsible for advising on policy on the welfare of animals at the time of killing, including religious slaughter, and has been in that post since March 2013. All of the evidence for both parties was comprehensive and in my judgment gave the court a very clear picture of the factual elements relevant to these judicial review proceedings.
Halal slaughter
Mr Khalid has provided very detailed evidence about this subject. For meat to be Halal (which means “permissible”, meaning that a Muslim is permitted to consume it) certain key criteria must be observed. The animal itself must be of a species that is not Haram (which means forbidden). Pork is Haram, so the meat of a pig will never be Halal, regardless of how it is slaughtered. The animal must be alive at the point of slaughter, and the slaughterman must be a Muslim (or practising Person of the Book). The Tasmiyaa must be recited at the time of slaughter, the animal must be killed by having the majority of its blood vessels cut in order that its blood pours forth, and maximum blood must be expelled. In layman’s terms, the animal is killed by having its throat cut and bleeding to death. There must be no cross-contamination with anything that is Haram, such as non-Halal meat or alcohol. These steps are described by Mr Khalid as “obligatory core requirements”. There are other recommended, but not obligatory, criteria, such as not sharpening the knife in front of the animal, and facing Makkah (also spelt sometimes as Mecca) at the time of slaughter.
There are different Halal certifying bodies both in the UK and internationally, and they apply criteria differently, depending upon their theological position and intended customer base. By far the most relevant, for the purposes of these judicial review proceedings, is whether the animal is conscious or not at the time of killing. Some Halal certifying bodies will certify as Halal the meat from sheep who have been stunned prior to slaughter; some will not. Some sheep therefore are stunned first and then slaughtered in the Halal manner; this is referred to as stunned-Halal slaughter. The stunning must not however kill the animal, and so this is described as recoverable-stunned killing (meaning that if the animal were not then killed, it could recover from having been stunned). Some animals are not however stunned before killing, as some Halal certifying bodies require the animal to be conscious at the point of killing. This is described both as Traditional Halal slaughter or non-stunned Halal slaughter. Due to the requirements of Traditional Halal slaughter, there is the religious need for, and a commercial market in, the meat from sheep killed in the prescribed Halal manner whilst conscious.
There is a piece of equipment, invented in New Zealand, and used in the UK from about 2004 onwards, called a V-restrainer, which can be used to restrain sheep as they are moved to be slaughtered in an abattoir. It was not invented solely for use in abattoirs, and has other farming uses where orderly movement of sheep is required (for instance drenching, which is administration of preventative medical treatment). Essentially, this equipment consists of two inclined conveyor belts, which are not quite vertical. They are further apart from one another at the top than at the bottom (hence making a V-shape in vertical cross-section). They do not touch at the bottom, and there is a small gap between them, big enough for the sheep’s legs. A sheep in a V-restrainer is therefore held by the two belts along either side of its body; as the two conveyor belts (the sides of the V-restrainer) move, the sheep moves too. Usually the V-restrainer is set at an incline to the floor, moving upwards. A sheep will walk itself, or be directed, or manually loaded, into one end of the equipment. This will be at the lower end, where its feet can still touch the floor. As the V-restrainer moves, the sheep is moved along and upwards, away from the floor, and its feet no longer touch the ground, although its legs would still hang through the gap between the two belts. In this way, sheep can be manoeuvred mechanically to somewhere else, having started in a loading pen. Although there are different types of loading pens (some have movable floors, some do not) the type of loading pen is not directly relevant to these proceedings. These proceedings concern the use of V-restrainers for sheep in Traditional Halal slaughter, and in particular the effect that the Regulation has upon how they are used and loaded.
Prior to the invention and use of the V-restrainer, sheep about to be slaughtered by the Halal method were restrained either in a cradle (a mechanical device that holds the sheep on its back, as though it were on a deck-chair) or on a table (where the sheep would be held on its side, shackled or fixed to it). The sheep would be manually handled into that position to be restrained by either of these pieces of equipment. Once so restrained, a sheep would have its throat cut in that position. There is a further provision in Paragraph 6(2)(a) of Schedule 3 to the Regulations which states that once a sheep has had its throat cut it must not be moved in any way until it is unconscious and in any event not before the expiry of 20 seconds. This, called “the 20 second rule”, is not controversial in the sense that it is not under challenge in these proceedings, and it has been in place for some time. A sheep, once it has had its throat cut, must then be checked for signs of consciousness before it is moved. If it exhibits signs of consciousness, it must stay in position until it does not do so any longer. However, the minimum period that it must remain in position is 20 seconds, regardless of whether it is exhibiting signs of consciousness or not. In this way, a sheep can only be moved post-slaughter once it has become unconscious and after at least 20 seconds has elapsed from the throat-cut.
The factual issue which sits at the heart of the claim for judicial review is that Paragraph 6(1)(a) as currently drafted, and also as interpreted by DEFRA, has the effect that only one sheep at a time can be put into a V-restrainer to be slaughtered in the Traditional Halal manner. This is because of the requirement that the sheep is not be “placed in restraining equipment” (which means for these purposes the V-restrainer) “unless the person who is to carry out the killing” (the slaughterman – a term that is supposed to be gender inclusive) “is ready to make the incision immediately after it is placed in the equipment”. This therefore precludes the use of a V-restrainer to hold multiple sheep, one after the other in a line in the V-restrainer, waiting restrained in that line to be slaughtered at the top of the V-restrainer. The number of sheep that could potentially be held in such a V-restrainer in such a manner, during argument, was said to be four (because this was the figure used by Mr Khalid in his evidence). For stunned slaughter, the court was told that V-restrainers that can hold up to eight sheep at a time are in use in England.
At the risk of appearing not to do justice to the scientific research behind this, I should summarise simply the argument raised by AIMS. It is said by AIMS that the natural flocking instincts of sheep are such that they naturally follow one another, and would naturally want to follow one another, onto a V-restrainer, if they could immediately follow behind another sheep directly in front of them. Being held in a V-restrainer, behind another sheep and in front of another, means that they would be in close proximity with other sheep, and this satisfies their herd instinct, helping the sheep to avoid isolation stress. The welfare of the sheep would be promoted were AIMS and its members to be permitted to use V-restrainers for more than one sheep at a time for non-stunned religious slaughter. This is because they would not need to be handled individually to be loaded onto the V-restrainer (avoiding stress) and would be held in the V-restrainer in proximity with other sheep whilst waiting (also avoiding stress). This point of view is something that AIMS considers has not been considered properly or at all by DEFRA, which has issued Paragraph 6(1)(a) and also interpreted that, and the relevant EU Regulation, in such a way that, AIMS submits, the welfare of sheep is less well-served than it would be were abattoir operators to be permitted to use V-restrainers for multiple sheep for Traditional Halal slaughter.
DEFRA does not agree that the welfare of sheep is promoted by use of V-restrainers for multiple sheep in such non-stunned slaughter. Ms Whitehead for DEFRA refers to the fact that “non-stunned slaughter is controversial”. That statement is undoubtedly accurate. Mr Pievsky for DEFRA submitted that policy in such areas is a matter of the Minister balancing different interests of different groups, striking an overall balance having done so. Animal welfare organisations or charities would undoubtedly have a very different view about welfare of sheep and non-stunned slaughter than, say, AIMS and others involved commercially in this type of operation. Mr Mercer QC for AIMS adopted a bolder approach to the subject, and submitted that this subject was wholly about animal welfare, and that the subject was, as he put it, “completely science-based”. Indeed, he went somewhat further and submitted that there was no scientific evidence to the contrary to justify the position of DEFRA on this subject, and/or that there was no evidence before the court to demonstrate that DEFRA had considered the relevant science at all.
These proceedings are not concerned with the court expressing a view on the merits of what is best, in terms of animal welfare, for sheep who are to be killed using non-stunned slaughter. This judgment should not be interpreted as engaging in a merits-based analysis and deciding that point conclusively in either direction. These are judicial review proceedings, and the claim brought by AIMS will succeed only if it is well-founded on conventional judicial review grounds, namely that the decision was unlawful and/or irrational and/or was made failing to take account of relevant considerations. Given the evidence before the court, the submissions on both sides during the hearing spent a great deal of time debating the pros and cons of V-restrainers, and multiple loading and individual loading of these for non-stunned slaughter of sheep. Although to a certain extent this was understandable given the volume of evidence before the court, at times both parties were at risk of appearing to invite the court to express a concluded and final view on the merits of the overall animal welfare issue in terms of the best way of loading sheep into a V-restrainer. I am confident that judicial review proceedings do not require me to do so.
The Articles and Regulations
Council Regulation (EC) 1099/2009 of 24 September 2009 on the protection of animals at the time of killing (“the EU Regulation”) states in its recitals certain matters. The 2nd Recital states that killing animals may induce pain, distress, fear or other forms of suffering to the animals even under the best available technical conditions. Necessary steps should be taken to avoid pain, and minimise distress and suffering of animals during the slaughtering process, taking into account best practices in the field. It is also recited that animal welfare is a Community value that is enshrined in Protocol No.33 annexed to the Treaty establishing the European Community. As stated in the 4th Recital of the EU Regulation “the protection of animals at the time of slaughter or killing is a matter of public concern that affects consumer attitudes towards agricultural products”. The 6th Recital refers to the work of the European Food Safety Authority (“EFSA”). The 32nd Recital states that restraining animals is necessary, however it is likely to create distress to the animals and should therefore be applied for as short as period as possible.
For the purposes of these proceedings the most important parts of the EU Regulation are the following:
The 43rd Recital, which explains that slaughter without stunning requires accuracy, and animals that are not mechanically restrained after the cut are likely to endure a slower bleeding process. “Therefore, ruminants slaughtered without stunning should be individually and mechanically restrained”.
Article 3, General Requirements, states the following in particular:
Animals shall be spared any avoidable pain, distress or suffering during their killing and related operations.
For the purposes of paragraph 1, business operators shall, in particular, take the necessary measures to ensure that animals:
….(c) are handled and housed taking into consideration their
normal behaviour;”
Article 4.1 states that animals shall only be killed after stunning, and gives effect to Annex I. Article 4.4 states that Article 4.1 does not apply in the case of animals slaughtered in a manner prescribed by religious rites. It can accordingly be seen that non-stunned slaughter of animals in the EU for religious purposes is a derogation from the wider or default position that applies in this respect.
Article 9.3 states “Business operators shall ensure that animals are not placed in restraining equipment, including head restraints, until the person in charge of stunning or bleeding is ready to stun or bleed them as quickly as possible.”
Article 15.2 states that “Business operators shall ensure that all animals that are killed in accordance with Article 4(4) without prior stunning are individually restrained; ruminants shall be mechanically restrained.”
Article 26 permits Members States to adopt national rules “aimed at ensuring more extensive protection of animals at the time of killing than those contained in this Regulation”. This is permitted in the field of “the slaughtering and related operations of animals in accordance with Article 4(4)”, which as can be seen above, is the slaughter of animals in a manner prescribed by religious rites.
The 2015 WATOK Regulations were made on 12 October 2015 and laid before Parliament on 15 October 2015. They came into force on 5 November 2015. The Explanatory Note explains that they make provision for a purpose mentioned in section 2(2) of the European Communities Act 1972, and it appears to the Secretary of State that it is expedient for the reference in the Regulations to the Annexes to the EU Regulation to be construed as references to those Annexes as amended. The 2015 WATOK Regulations apply only in England. Under National Rules in Part 3 of the Regulations, Schedule 3 is given effect by Regulation 27. That Schedule 3 contains Paragraph 6(1)(a) which I have quoted in paragraph 3 of this judgment.
That therefore is the statutory framework within which Paragraph 6(1)(a) sits. The earlier regulations, called Welfare of Animals (Slaughter or Killing) Regulations 1995 (referred to as “WASK”) were revoked at the same time in so far as they applied to England.
On 10 February 2016 DEFRA, in a letter from Ms Whitehead, notified the European Commission of certain matters including the following in express terms:
“In accordance with Article 26(2)(c) I am writing to notify you that a new stricter national rule requiring “immediate incision” for restrained sheep and goats was introduced by WATOK 2015. This requirement is set out in paragraph 6(1)(a) of Schedule of WATOK 2015.” Notification had already been given to the European Commission in a letter dated 17 December 2012 under Article 26(a) of the EU Regulation that the UK was retaining the stricter national rules that gave greater protection than the EU Regulation including national rules on religious slaughter.
There was an earlier version of the 2015 WATOK Regulations, which was entitled the Welfare at the Time of Killing Regulations 2014 (“the 2014 WATOK Regulations”). These reached the stage of being put before Parliament on 16 May 2014 and were, under Regulation 1(4), due to come into effect on 20 May 2014. However, they did not do so and were revoked on 19 May 2014 by the Welfare of Animals at the Time of Killing (Revocation) Regulations 2014, the day before they were due to come into force. The effect of this was that the WASK Regulations continued in effect, until the coming into force of the 2015 WATOK Regulations. Mr Mercer QC relied, although rightly not heavily, on this volte face by DEFRA on the 2014 WATOK Regulations as part of his defence to the attack upon the claim on the grounds of delay. I deal with that in the section of the judgment entitled “Delay” below. They did not come into force. That revocation was in the face of certain representations made to DEFRA by AIMS, and perhaps other bodies too. I do not consider that the text of the 2014 WATOK Regulations or their revocation are relevant to these proceedings.
Factual History including the so-called Bates Report
The animal welfare principle, or principles, which underpin the whole of the claim brought by AIMS is, or are, based upon the different stresses that sheep in particular experience. Sheep are herd creatures, and also prey animals, which means that predators prey on them and would seek to eat them. Accordingly, they seek and find solace in a herd environment and are happiest (or least stressed) when in a herd environment, and in proximity to other sheep. They have a flock instinct, which means they wish to keep together with other sheep. With the sole exception of hand-reared orphan lambs, sheep shun human contact and become stressed in a variety of ways. They behave differently in this respect to either cattle or goats, animals without such pronounced herd instincts. These different types of stress that sheep are susceptible to suffering can be summarised in the following way:
Restraint stress. This is self-explanatory. It is the stress experienced from being restrained.
Isolation stress. This was described in the following way in a report from 2008 in which it was said “it has been repeatedly shown that individual isolation of a sheep from the flock (sheep have a strong flock instinct) causes an intense emotional stress reaction…..” The report was entitled “Response of the Pituitary and Adrenal Glands of Sheep subjected to Restraint Stress after Repeated Isolation Stress” and is dated 11 June 2008. Its authors were Wronksa-Fortuna, Frys-Zurek and Niezgoda (“the Wronksa-Fortuna Report”).
Handling stress. This is caused by being handled by humans. Manual handling of sheep is something that should be avoided where possible because of this.
Personnel positioning stress. This is the stress that sheep experience when a person is nearby and in their field of vision. They will try to move away from people.
Anyone who has ever witnessed shepherds working with sheep dogs will know that manoeuvring groups of sheep is something that utilises the desire of sheep to remain in a group, and move away from external influences. It is not factually disputed in these proceedings by DEFRA that sheep have these characteristics.
There are various scientific reports and recommendations before the court in these proceedings. AIMS relies heavily upon a report that is entitled “A comparison of handling methods relevant to the religious slaughter of sheep” dated 2014 by Bates, Ford, Brown, Richards, Hadley, Wotton and Knowles (“the Bates Report”). This scientific study analysed blood samples of a number of sheep who were slaughtered, measuring three stress indicators, namely cortisol, lactate and creatine kinase (or “CK”). These physiological variables enable the quantification of stress responses. The report compared control groups that were group loaded (i.e. permitted to follow one another onto a V-restrainer, and wait in that equipment until being stunned then slaughtered) with ones that were individually loaded. The conclusions were that additional stress was placed upon the sheep (referred to as lambs in the Bates Report) when individually loaded, compared to those group loaded. The single sentence that best sums up the result of this study is that “restraining lambs individually within a V-shaped restrainer, in accordance with welfare legislation for non-stun slaughter of lambs under religious methods, is more stressful for sheep than restraining them sequentially as a group, whilst still in compliance with the required 20-s standstill period post neck cut”.
AIMS relies heavily upon this report in these proceedings, and relied heavily upon it in discussions with DEFRA in 2014 and into 2015 during a period when the 2015 Regulations were being considered. There is no doubt that AIMS is of the view that the isolation stress experienced by sheep loaded into a V-restrainer one at a time is something that should be avoided and the welfare of the sheep is better served by group loading. Sheep naturally follow one another onto the V-restrainer and are comforted by the presence of other sheep in the V-restrainer if multiple loaded. AIMS considers that the sheep suffer higher stress from being in a V-restrainer alone than if in a V-restrainer together. It is also harder or requires greater human input to load the V-restrainer if this being done individually, because the sheep do not have another sheep to follow onto it. Given human contact – handling stress – is to be avoided, this is another reason why AIMS says that multiple loading is better.
However, DEFRA do not agree with this and are of the view that individual loading for non-stunned slaughter is not only preferable, but is required. DEFRA notified AIMS in a letter dated 12 August 2014 (“the August 2014 letter”) what its policy was on individual restraint of sheep for non-stunned slaughter. This letter was in response to threatened judicial review proceedings by AIMS concerning individual restraint in V-restrainers. I consider that this letter is important and I set it out in full. The emphasis was present in the original letter. The letter was from the Treasury Solicitor and stated:
“Dear Sir
Your clients: The Association of Independent Meat Supplier (“AIMS”) and Others
We write in respect of your letter of 23 May 2014. You have asked our client to confirm whether the prohibition on placing more than one sheep at a time in a v-shaped restrainer will apply to (i) sheep which are stunned prior to slaughter (whether or not in accordance with religious rites), and (ii) sheep which are killed in accordance with religious rites without stunning. In response to your query, the position is as follows:
1. Position on stunned slaughter
V-shaped restrainers can be used to restrain sheep during slaughter. For stunned slaughter (including stunned religious slaughter) carried out in accordance with Annex I of the EU Regulation, there is no prohibition under EU law on restraining more than one sheep in a v-shaped restrainer at a time. However, EU law requires that business operators must not put animals into restraint until they are ready to stun or bleed the animals as quickly as possible (see Article 9(3) of the EU Regulation). This means that although (for stunned slaughter) more than one sheep may be placed in the v-shaped restrainer, the last sheep placed in the restrainer in any one series must still be slaughtered “quickly” after being restrained. This naturally limits the number of sheep in one restrainer at any one time.
2. Rules applicable to non-stunned religious slaughter
Position under WASK
Prior to the introduction of the EU Regulation, the position at law was one live sheep at a time in a v-shaped restrainer. This is because of:
• paragraph 5(c) of Schedule 12 of WASK – “only one such animal is placed on the cradle or table at any one time” – this means only one sheep or goat at any one time; and
• regulation 1(4) of WASK – “any reference in these Regulations which applies to an animal awaiting slaughter or killing applies until that animal is dead” – the Regulations do not therefore apply to dead animals.
Paragraph 5(c) can therefore only apply to live sheep or goats and this means there can only be one live sheep in a v-shaped restrainer at a time. (Since the body of the sheep is supported by the conveyor belts of the restrainer and their legs hang through the gap, the v-shaped restrainer operates as a cradle within the meaning of WASK.)
WASK has in this respect been superseded by Article 15(2) of the EU Regulation.
Position under the EU Regulation.
For non-stunned religious slaughter, there are additional EU rules, and existing domestic WASK 5(c) rules, that apply as well as Article 9(3) of the EU Regulation above. In particular, all ruminants subject to non-stunned religious slaughter must be “individually and mechanically restrained” (see Article 15(2) of the EU Regulation which replaces a similar requirement for individual restraint in paragraph 5(c) of Schedule 12 of WASK).
Defra’s interpretation of Article 15(2) is that “mechanical” restraint permits the use of v-shaped restrainers for non-stunned religious slaughter. However, in relation to being “individually restrained”, Defra maintains the view that this means only one sheep at a time may be restrained.
This is because the requirement to be individually restrained (i.e. separately restrained, one by one) under Article 15(2) is augmented by the Article 9(3) requirement to bleed the animal as quickly as possible.
In the light of the definition of “restraint” which is essentially a procedure designed to facilitate effective stunning and killing, it is plain that the requirement for restraint also only applies to live animals. Defra have therefore considered the purpose of restraint before slaughter, taking the view that the EU Regulation and domestic rules also only permit one live sheep to be restrained in a v-shaped restrainer at any one time.
Relevance of the “20-second rule” and Article 9(3)
The position on individual restraint of sheep for non-stunned religious slaughter under the EU Regulation is augmented domestically by the application of the stricter national “20-second rule” which requires that sheep must not be moved post-cut until they are unconscious and, in any event, not until 20-seconds has elapsed (see paragraph 7(a) of Schedule 12 of WASK).
The application of the 20 second standstill period post-cut for each sheep in the v-shaped restrainer would, if more than one sheep was restrained, lead to non-compliance with Article 9(3) of the EU Regulation (i.e. the requirement to bleed animals as quickly as possible). This is because each sheep would, if restrained behind the sheep being bled at the front of the v-shaped restrainer, be held in restraint for at least 20 seconds or potentially longer (i.e. multiple of 20 seconds) depending on i) the number of sheep in the v-shaped restrainer, and ii) that sheep’s position in the queue. Therefore, the 20 second rule, in combination with Article 9(3) of the EU Regulation described above, further supports Defra’s position on only one sheep being permitted to be restrained at any one time.
Consistency in policy
As detailed above, the position under paragraph 5(c) of Schedule 12 of WASK meant that only one live sheep could be restrained at a time in a v-shaped restrainer and the new requirements of the EU Regulation in Article 15(2) do not contradict this. Defra has therefore maintained consistency in its position on the use of v-shaped restrainers during non-stunned religious slaughter under WASK, in line with any welfare developments in the overarching EU law.
3. Position on non-stunned religious slaughter
Defra’s position is therefore that, in the light of the following requirements that are applicable, for non-stunned religious slaughter:
(a)Article 15(2) of the EU Regulation concerning individual and mechanical restraint;
(b)Paragraph 7(a) of Schedule 12 of WASK (the “20 second rule”); and
(c)Article 9(3) of the EU regulation,
in combination, mean that only one live sheep may be restrained in a v-shaped restrainer at a time.
For clarity, we have attached to this letter a table summarising the domestic and EU requirements that apply to the different types of slaughter.
The restraint of animals, prior to and during religious slaughter, was one of the issues forming part of the 2012 consultation on implementation of the EU Regulation. For clarity, neither Article 15(2) of the EU Regulation nor the domestic 20-second rule applies to stunned slaughter (including stunned religious slaughter). In the light of this, we look forward to confirmation that your client will no longer be pursuing a judicial review claim as outlined in respect of its original letter of claim dated 1 April 2014.”
This letter makes it clear that the V-restrainer was treated as a “cradle” for the purposes of WASK. It also makes it clear that a consultation was carried out in 2012 by DEFRA. There are a variety of other scientific studies before the court about the welfare of sheep, and these were known to DEFRA and are identified in Ms Whitehead’s evidence. They are:
The Farm Animal Welfare Council or FAWC is a statutory body set up by DEFRA to provide advice on the welfare of farmed animals. Article 20 of the EU Regulation requires that such a step is taken. In 2003 FAWC issued a Report on the Welfare of Farmed Animals at Slaughter and Killing. FAWC was not consulted specifically by DEFRA prior to issuing The 2015 WATOK Regulations, but there was no obligation upon DEFRA to consult FAWC and so that failure to consult is of no relevance. The 2003 FAWC Report does demonstrate that FAWC were concerned about animals being left for periods of time in restrainers. AIMS submits that this report pre-dated the use of V-restrainers for non-stunned slaughter and also that Ms Whitehead in her evidence concentrates on FAWC’s concerns about restrainers but takes this “out of context”. There is no doubt that FAWC recommended that “Alternatives to manual restraint methods for sheep should be explored by the industry for use at slaughter without pre-stunning”, but that does not conclusively resolve the matter, or in my judgment take it much further at all.
The European Food Safety Authority, or EFSA, Scientific Panel Report of June 2004 noted that “pre-slaughter handling and restraint…may cause serious welfare problems” and also noted that a stunning method to induce consciousness prior to killing provides the best welfare outcome. However, even though AIMS point out that by using multiple loading the need for manual handling for the sheep onto the V-restrainer is reduced, or even in some cases eliminated (as the sheep follow one another), it must be said that this is at the expense of those sheep being restrained for longer than they would be if they were individually loaded. It is clear that it is the balancing of these factors that is required. Again, the EFSA Report is criticised by AIMS as pre-dating the widespread use of V-restrainers in the way contended for by AIMS.
In 2010 a report was issued which is called The Dialrel Report on Improving Animal Welfare during Religious Slaughter. This makes certain recommendations, including that the slaughterman must be ready to perform the cut before the animal is restrained and that the neck cut must be performed without delay. AIMS accepts that these two recommendations “are again uncontroversial”. However, whether they are controversial or not, DEFRA was entitled to take them into account and they can be said to support the conclusion that individual restraint is preferable from a welfare perspective. Although that report also stated that “Due care must be taken during loading the animal into the restraining system to minimise stress and injury…” this again could not be said to “trump” the other welfare considerations.
Other scientific reports are attacked by AIMS as being “outdated and irrelevant”. The Niezgoda Report from 1993 plainly deals with a different type of restraint, namely shackling of sheep to tables, and the Wronska-Fortuna Report of 2008 considered the reaction of sheep to different stress factors, both restraint and isolation, applying those stress factors for lengthy periods of time and for isolation, applying that twice. I do not consider that these studies can simply be dismissed. Although they are older than the Bates Report, they do form part of the accumulated knowledge on this subject generally, and are part of the body of scientific study. It is not intellectually valid, in my judgment, simply to dismiss those reports or studies that reach different or less favourable conclusions, and leave the Bates Report standing in glorious isolation as the sole definitive study.
Grounds of Challenge
There were three grounds in the Grounds of Challenge. The proceedings were issued on 2 February 2016. The grounds relied upon were:
That Paragraph 6 of Schedule 3 to the 2015 WATOK Regulations was unlawful. It is argued by AIMS that although Article 26(2) of the EU Regulation permits Member States to adopt national rules that are aimed at ensuring more extensive protection of animals, in fact Paragraph 6 does not do this and rather raised serious welfare implications. It was therefore ultra vires. Paragraph 6 would require abattoirs to operate in a manner that contradicted best practice, and would result in avoidable pain, suffering and distress to sheep who were slaughtered by non-stunned religious methods. Paragraph 6 was not consistent with or required by either Article 9(3) and/or Article 15(2) of the EU Regulation and the interpretation that it was, was erroneous.
That Paragraph 6 of Schedule 3 to the 2015 WATOK Regulations was irrational. Given V-restrainers and group loading could be used for stunned slaughter, there was no rational basis to impose the requirement upon sheep for non-stunned slaughter. Sheep were content to be held with other sheep, even waiting during the 20 second rule being applied to sheep in front in the V-restrainer awaiting slaughter.
DEFRA failed to seek the appropriate advice in formulating Paragraph 6 and therefore failed to take account of relevant considerations and was therefore irrational. This refers to what is said to be a lack of any evidence that the use of V-restrainers for individual loading was more welfare friendly than allowing sheep to be held in a group. Further, DEFRA had not sought the advice of the Farm Animal Welfare Committee or FAWC, and had therefore failed to take account of relevant evidence presented by AIMS, and not relied upon any scientific opinion in support of restricting such restrainers to one sheep at a time.
These grounds did not persuade either of the Single Judges who considered whether permission should be given that the claim by AIMS was arguable. AIMS was refused permission to bring judicial review proceedings, both on the papers and at the oral renewal of the application. Of course, there is far more material before me than there was before either of the Single Judges, and their refusals of permission do not affect the substantive proceedings in terms of having any influence upon me. However, the evolution of the claim (and in particular the grounds) are directly impacted by what occurred, in particular before the Court of Appeal, and so it is necessary to consider the procedural history.
Procedural history
May J, in an order dated 30 March 2016, refused permission on the papers. She held that the application had not been issued promptly or within the 3 months required under CPR Part 54.5(1). She found that the August 2014 letter (which I have quoted above) set out DEFRA’s policy explicitly and the 2015 WATOK Regulations did not introduce a new policy, they were a continuation of an existing policy. She also stated that the Statutory Instrument was laid before Parliament on 15 October 2015, itself more than 3 months before issue of the claim. She did however also deal with each of the different grounds and considered that they were not reasonably arguable.
AIMS then applied for an oral renewal of its application for permission to bring judicial review proceedings, and this was heard inter partes in the usual way before Cranston J on 5 May 2016. He also refused permission. He dealt with the same matters as May J although in a different order. He considered the grounds first, and held that each of them was not reasonably arguable. The neutral citation for his decision is at [2016] EWHC 1935 (Admin). He also stated at [27] that had he been required to consider the matter, he would have “regarded this claim as late”. The relevant date considered by him was the date that the Regulations were laid before Parliament, namely 15 October 2015.
AIMS then sought to appeal that refusal. However, in the Grounds of Appeal lodged with the Court of Appeal and the skeleton argument that accompanied it, only the first ground of challenge was advanced. This was namely that Cranston J had erred in his approach to the question of vires, and had also erred in his conclusion that the decision to introduce Paragraph 6, imposing stricter requirements that those in the EU Regulation, was within the Minister’s margin of appreciation. AIMS also challenged the finding by Cranston J concerning the date that time had started to run for it to bring its claim. This application to the Court of Appeal was granted by Jackson LJ on 12 January 2017.
It is clear therefore in my judgment that AIMS is only entitled to argue the first ground, the second and third one having been expressly abandoned in paragraph 3 of its skeleton argument dated 11 May 2016 for the Court of Appeal. This had expressly stated “The Claimant maintains only the first ground of challenge….”. That ground is however split into two elements in the skeleton argument lodged by AIMS for the hearing, namely “the Vires Issue” and “the Interpretation Issue”. I deal with both below, although the way the Interpretation Issue is put potentially overlaps with one of the abandoned grounds. It is also clear to me that delay was not fully argued before the Court of Appeal. To be fair to Mr Mercer, he does not suggest that delay was fully argued before the Court of Appeal, or that by granting AIMS permission to appeal, Jackson LJ has shut the door on DEFRA relying upon delay before me. His position on delay was rather more subtle than this; he submitted that a Lord Justice of Appeal would not have granted permission if the claim were readily time-barred. He relied upon R (on the application of Lichfield Securities Ltd) v Lichfield District Counciland another [2001] EWCA Civ 304. That authority states that promptness can be recanvassed at the substantive hearing of the judicial review proceedings if it has been decided in the applicant’s favour at the permission stage, but only if (i) the judge granting permission expressly so indicates; (ii) if new relevant material has come to light at the substantive hearing; (iii) exceptionally, the issues as they develop put a different aspect on the matter; or (iv) the first judge has plainly overlooked some relevant matter or otherwise reached a decision per incuriam.
Mr Pievsky does rely upon delay, and relies upon that as a free-standing ground of resistance. Given the facts of this case, I consider that Lichfield is distinguishable. Neither May or Cranston JJ resolved delay in the claimant’s favour; all that Jackson LJ did was decide that the judicial review proceedings, namely the first ground thereof, were reasonably arguable such that permission should be granted. DEFRA is entitled, in my judgment, to have its arguments on delay properly considered. In my judgment the effect of the order of Jackson LJ was to permit that argument to be heard at the substantive judicial review proceedings.
However, due to the subject matter of these proceedings I propose to deal with the substantive challenge in any event, and deal with delay separately. That is for two reasons. Firstly, the outcome at first instance will be known regardless of AIMS’ timing in issuing its claim. Animal welfare is a matter of public interest and I consider AIMS should know the outcome of its substantive challenge in any event. Secondly, Mr Mercer seeks an extension of time, if one is needed. The merits of the substantive claim are, in my judgment, potentially relevant to such an application.
Legal submissions
The Vires Issue
AIMS accepts that following the notification to the European Commission in the letter from DEFRA of 10 February 2016 notifying it that Paragraph 6(1)(a) was a new stricter national rule, the only question that arises on this issue is whether Paragraph 6(1)(a) was “aimed at ensuring more extensive protection of animals” within the meaning of Article 26 of the EU Regulation.
AIMS submits, somewhat boldly given some of the passages I have reproduced above from the relevant papers, that “all the relevant available evidence indicates that prohibiting the use of V-Restrainers for more than one live sheep at a time has a negative impact upon animal welfare”. I am unable to accept that submission.
The Bates report does identify that there were some higher stress indicators measured in the subjects of that study in the group loaded animals compared to those in the individually loaded group. However, to state that this means that a failure to use the restrainers for more than an individual animal at a time “has a negative impact upon animal welfare” is akin to adding 2 and 2 together and reaching a total of 10. Even putting the sensible observations of the Scientific Adviser on the Bates study to one side (and there is no reason that they should be put to one side, because they are entirely valid), few scientific analyses would justify jumping directly to such a forthright conclusion on the basis of one study. Restraining of sheep is widely accepted, even in the Bates study, as stressful to them, and something to be avoided where possible and minimised. It is enshrined in the EU Regulation that “this is likely to cause distress to the animals” and “should therefore be applied for as short a period as possible”, to recite the words of the 32nd Recital. In my judgment, it is hardly consistent with that to have animals waiting in a queue in a V-restrainer whilst those ahead are cut, bled and the 20 second rule (which it must be remembered is only a minimum) is observed. If an animal ahead in the queue on the V-restrainer fails to lose consciousness within those 20 seconds, the V-restrainer cannot move at all until it has done so. During that period, which is by necessity of uncertain duration (the only certainty is that it will be at least 20 seconds), animals already loaded in the V-restrainer will simply be waiting, restrained, in circumstance in which the EU Regulation states are likely to cause distress. It also ignores that if sheep are loaded into a V-restrainer individually, the other sheep (not at that point yet loaded) are held collectively in the loading pen with other sheep, in a more conventional herd environment.
There was something of a disagreement on the evidence about the length of time that sheep may, or could, be waiting in a queue in a V-restrainer if AIMS’ suggested approach of multiple loading were to be adopted. Mr Khalid had referred to the time of 15 minutes, in a passage that stated that sheep could be kept in a restrainer for that period without exhibiting distress in his experience. Ms Whitehead may have misunderstood this passage as meaning that is the time that the sheep would be waiting in such a position. AIMS, in footnote 24 of its skeleton argument, states that this is “deliberately misconstruing the evidence of Mr Khalid”. In my judgment there is nothing to suggest that this is more than a misunderstanding, rather that something deliberate. The point about 15 minutes was in any event clarified by Mr Khalid in his second witness statement, who explained that it was an example about V-restrainers generally and that no interval in a slaughterhouse would exceed 2 minutes. However, in my judgment such a debate is arid in the context of these judicial review proceedings. It is not the function of the court to decide how long it is, or is not, in the interests of animal welfare that sheep should, may, or could, be held in such a position in terms of making a factual finding about how long on average such an interval would be, in the vast majority of cases. That is not the function of judicial review proceedings. The duration is likely to be different in any event from case to case as it depends upon the length of the V-restrainer in question, the speed with which the slaughterman checks the knife (an essential step), and also how long each animal takes to lose consciousness and then be removed (which is likely to vary). DEFRA’s Animal Welfare and Science Oversight Management Team are the governmental body that consider such matters, and unless the Minister is found to have acted unlawfully and these proceedings succeed, whether I agree or disagree with 15 minutes, or 1 to 2 minutes (for the fourth sheep in the restrainer), or any other period of certain or uncertain duration, does not matter. For what it is worth, I accept that it would be unlikely to be more than a few minutes, rather than 15, but that would obviously vary from case to case. It could vary widely.
The important point that has to be considered is whether DEFRA took account of the relevant evidence, including the scientific evidence, that was before it. AIMS was very enthusiastic about the Bates Report, and understandably so, as its conclusions supported the position adopted by AIMS. AIMS brought it to the attention of the relevant people at DEFRA with whom it was in discussion, and they considered it. Ms Whitehead asked the Scientific Adviser to provide her views on the Bates Report and she reported on them in an e mail dated 6 October 2015. Dr Vickery was at the time the Scientific Adviser to the Animal Welfare Team and is a member of the Veterinary and Science Policy Advice Team at DEFRA. Her views on the Bates Report were, in summary that “the paper’s findings appear to be scientifically robust” and that the results were not particularly surprising “and are in line with a large body of evidence that demonstrates that sheep (highly social prey animals) are comforted by being in close proximity to conspecifics” which means other sheep. She did however have areas of concern, including the external validity of the findings, to what extent they would be true of the general population, and that the study needed to be replicated more widely. She identified some “unexpected/contradictory findings”. She also pointed out that the study was relatively small.
She also referred to areas of bias. I interpret those comments by her to mean what is called experimental and/or statistical bias, rather than actual bias in the sense that the authors of the study were biased towards reaching a particular conclusion. The former means factors that may have influenced the study, or the interpretation of the results, and the latter means something quite different and would mean that the authors were not objectively conducting a scientific study. I interpret the use of the word “bias” by the Scientific Adviser in the way that I have because had she meant actual bias by the authors she would not have found the findings to be “scientifically robust”. However, this e mail to Ms Whitehead makes it clear that not only was Bates expressly considered by DEFRA, but scientific comment upon it was specifically obtained. That does not help AIMS’ application for judicial review; in my judgment it rather hinders it.
DEFRA was not bound to adopt any particular conclusion in the Bates Report, or slavishly follow it. On this subject, this case could be said to contain the very essence of how the court approaches judicial review.
In my judgment, Paragraph 6(1)(a) was clearly “aimed at” ensuring better animal welfare and more extensive protection of animals. Its aim was to reduce the length of time the animal in question would be restrained – a state which it is accepted causes stress to them – to the very minimum physically possible, because each sheep has to be killed immediately it is restrained, or, to use the language of the paragraph itself “immediately after it is placed in the equipment.”
The approach advocated by Mr Mercer was, he submitted, required and justified by Netherlands v The Commission (Case C-405/07P) [2008] ECR-I-8301 at [55]. This case concerned an action brought by a Member State against the Commission in respect of derogating national provisions in respect of air pollution. These national provisions required specific approval by the Commission, and it was accepted that the Commission had a discretion in respect of granting or refusing its approval. The Member State had its application for such derogation refused by the Commission, and sought review of this. The Second Chamber of the Court of Justice allowed the appeal by the Member State from the failure to overturn the refusal before the Court of First Instance. The Second Chamber found that the Commission had failed, without explanation, to take account of the data concerning the problem of ambient air quality in the Member State in 2004. The court held that although the Commission had a wide discretion to deal with matters that would often require complex technical evaluation, the exercise of the discretion was not immune from review by the court. The judgment at [55] states that not only must the court establish whether the evidence relied upon was factually accurate, reliable and consistent but also whether that evidence contained all the information which must be taken into account in order to assess a complex situation and whether it was capable of substantiating the conclusions drawn from it.
I do not consider this case assists Mr Mercer. Firstly, it concerns the exercise of discretion by the Commission in granting, or refusing, approval for a derogation sought by a Member State from provisions that apply across the entire EU. No parallel can be drawn, in my judgment, with the power enjoyed by DEFRA to impose stricter national rules than those required by the EU Regulation. They are entirely different in character. However, even if I am wrong about that, the judgment simply states in different language what could, in this jurisdiction, be described as the principle that any exercise of discretion has to be made on proper grounds, in other words taking into account all relevant considerations and not taking into account irrelevant considerations. Yet further, even if I am wrong about that too, it is clear to me that the material before DEFRA, including but not limited to the Bates Report, was capable of substantiating the conclusion drawn from it which found its way into Paragraph 6(1)(a). Therefore even if I am required to enter into an enquiry to see if the appropriate weight were given to the Bates Report in comparison with the other material of which DEFRA was clearly aware, then I would conclude that it was.
AIMS also relied upon R (Lumsdon and others) v Legal Services Board [2016] AC 697 In that case, the regulator for the Bar proposed a self-certification scheme for criminal advocates. Subsequently, the regulator made a joint application together with regulators for solicitors and legal executives for approval of alterations to their regulatory arrangements to give effect to a quality assurance scheme for advocates known as QASA. The claimants, who were criminal advocates, brought judicial review proceedings on the grounds that the scheme was contrary to regulation 14(2)(b)(c) of the Provision of Services Regulations 2009, since it failed to meet the prescribed conditions that the scheme was justified by an overriding reason relating to the public interest and that the objective pursued could not be achieved by means of a less restrictive measure. On appeal to the Court of Appeal (the Divisional Court having dismissed the claim), the court held that it was exercising a review discretion and should not substitute its view for that of the decision-maker, who retained a margin of discretion. It also held that the decision whether a less obtrusive option would be appropriate was not one with which the court would interfere unless the decision-maker’s judgment was manifestly wrong. On appeal to the Supreme Court (the appeal there failed) the following was stated by Lord Reed and Lord Toulson JJSC at [44]:
“ It would however be a mistake to suppose that the “manifestly inappropriate” test means that the court’s scrutiny of the justification for the measure is cursory or perfunctory. While the court will be slow to substitute its own evaluative judgment for that of the primary decision-maker, and will not intervene merely because it would have struck a different balance between countervailing considerations, it will consider in some depth the factual foundation and reasoning underlying that judgment.”
I do not consider that I have scrutinised the justification provided by DEFRA in a cursory or perfunctory way. I also consider, on the basis of the evidence, that DEFRA considered the matter with some care. I have considered the factual foundation and reasoning applied by DEFRA with some care. However, I have come to the conclusion that AIMS is asking me to do precisely what the court ought not to do, namely substituting its own evaluative judgment on the different considerations for that of DEFRA. I am neither entitled nor required to do that.
Mr Mercer posed the rhetorical question in his submissions “why was the Bates Report invalid?”. The answer to that question is very simple, in my view. It was not necessary for DEFRA to have concluded that the Bates Report was “invalid” in order to arrive at the ultimate conclusion that was drawn, namely that restraint of sheep for non-stunned slaughter had to be restricted to the absolute minimum period possible, because it causes distress to the animals. That conclusion was reached after weighing up a number of different considerations. Further, a correct reading of the e mail from the Scientific Adviser does not state that the Bates Report, or its conclusions were “invalid”. Another phrase used by Mr Mercer in oral submissions was that Ms Whitehead “belittled” the Bates Report. I do not accept that characterisation of what occurred. A failure to follow particular conclusions amongst others, in a single study, does not amount to belittling it.
Mr Pievsky made certain criticisms of the Bates Report in oral submission, pointing out both its limitations and the narrowness of the study. As a single example only, the sheep in that study were stunned at the top of the V-restrainer, rather than being subject to non-stunned slaughter. However, I do not consider that it is necessary for me to embark upon a qualitative analysis of the Bates Report’s conclusions, in comparison with the other studies or other policy considerations, for the reasons I have explained above. Isolation stress does not “trump” restraint stress, and there may be certain advantages in having sheep loaded on a V-restrainer in the way advocated for by AIMS. However, there are also certain advantages in having a sheep restrained for as little time as possible, and so other disadvantages accompany multiple loading. The balancing of the different advantages and disadvantages to each approach is what DEFRA was seeking to do, “aiming at” ensuring better animal welfare and more extensive protection of animals. The fact that AIMS disagrees with the decision does not make it unlawful.
The Interpretation Issue
AIMS argues that using V-restrainers to hold multiple sheep for non-stunned slaughter is consistent with the requirement of Article 9(3) of the EU Regulation, which requires that animals are not placed into restraint until the person in charge of killing is ready to do so as quickly as possible. It is also argued that a V-restrainer constitutes individual mechanical restraint for the purposes of Article 15(2) of the EU Regulation.
This is a straightforward matter of interpretation of the EU Regulation. Article 15.2 states that “Business operators shall ensure that all animals that are killed in accordance with Article 4(4) without prior stunning are individually restrained; ruminants shall be mechanically restrained.” This means, on its plain language, that sheep (as they are ruminants) have to be mechanically restrained, and they have to be individually restrained.
A V-restrainer is undoubtedly mechanical restraint. Having four sheep in one at a time, however, cannot in my judgment be said to be restraining them individually in that same mechanical restraint. To be restrained individually, and to give that word its common and widely understood meaning (if not its only meaning), only one sheep must be in the V-restrainer at a time. If there are two or more, then the sheep are not being restrained individually.
AIMS argues that Article 15(2) “does not preclude the use of V-restrainers for more than one sheep at a time” (paragraph 32(c) of Claimant’s skeleton argument). I do not accept that submission. The argument by AIMS continues that even if Article 15(2) does indeed do that, “Paragraph 6(1)(a) (as interpreted by DEFRA) goes beyond such an interpretation”. However, with respect to AIMS’ carefully argued submissions on this point, the Notification to the European Commission by DEFRA points out that Paragraph 6(1) (which includes both (a) and (b)) does impose stricter national rules than the EU Regulation imposes. DEFRA is permitted lawfully to do this. The Interpretation Issue is in reality an attempt by AIMS to challenge the imposition of stricter national rules. Such a challenge is invalid, in my judgment.
There was another point argued orally by Mr Mercer, which I will deal with even though it comes perilously close to (if not overlaps with) the Second Ground in the original claim, which was expressly abandoned in the Court of Appeal. This is that there was, it was argued, no rational distinction for permitting multiple loading (and hence multiple restraint) for sheep that were to be stunned prior to slaughter, yet preventing it for non-stunned slaughter. It should be obvious from the descriptions above of the two different types of slaughter that there are at least two important distinctions that can be made immediately. The first is that, for stunned slaughter, the sheep are not consciously waiting behind a sheep that is being slaughtered, they are waiting behind a sheep that is being stunned. The second is that there is no 20 second rule for stunned slaughter. In my judgment – and even if AIMS were free to argue to this ground, which I do not consider it is – either of these two obvious points makes this ground untenable. AIMS was right to abandon it in the skeleton argument that persuaded the Court of Appeal to grant permission to bring judicial review proceedings.
Delay/Extension of time
Mr Mercer has adopted a position in relation to alleged delay in issuing the claim that would have time running to bring judicial review proceedings from the date that the 2015 Regulations came into force, namely 5 November 2015. Given the proceedings were issued on 2 February 2016, this would be within the three months required by CPR Part 54.5(1). This raises the fundamental question, do grounds for judicial review of a decision arise when the decision in question is made, or when (as here) an instrument comes into force bringing that decision into legal effect?
If AIMS’ proceedings are out of time, Mr Mercer seeks an extension of time on rather general grounds. There is no factual evidence explaining why a challenge could not have been brought within the period required. Rather, the evidence before me suggests that because of meetings that were being held by AIMS with the Minister, and also with other officials in DEFRA in late 2015, there was a hope (and certainly not an expectation) that the matter might be resolved in AIMS’ favour without the need for proceedings. In my judgment, the amount of time by which the proceedings are out of time (if they are) is one of the relevant factors to be considered if the court comes to the point of deciding whether or to grant an extension of time.
There is however one compelling factor that, in my judgment, rather overwhelms AIMS’ case on this. Not only was the August 2014 letter over 17 months before the claim was issued, but that letter, rather than instituting new policy, was effectively a restatement of existing policy. It should be noted that use of V-restrainers for multiple sheep at one time for non-stunned slaughter have never been permitted, either under the old Regulations or the 2015 WATOK Regulations currently being challenged.
That letter, reproduced in this judgment, does indeed set out with perfect clarity, and a degree of precision, the decision of DEFRA on this subject. I agree with May J, who analysed this as her primary ground when she refused permission on the papers, that the 2014 Letter was when the claim first arose. It should also be borne in mind that this letter was in direct response to a threatened claim by AIMS for judicial review. The 2015 WATOK Regulations were simply continuation of that policy.
However, even if I am wrong about that and the three month period mandated by CPR Part 54.5(1) did not begin to run until a later date, I would hold that this was the date the Statutory Instrument was laid before Parliament, rather than the date that the Regulations came into force. This was the date adopted by May J as a secondary point in paragraph 1 of her written reasons for refusal of permission, and was also the date that Cranston J concluded made the proceedings late, had he been required to decide that point. Given that the laying of a Statutory Instrument before Parliament represents the concluded view, in express terms, of any particular Government Department (or more accurately, Minister) of the terms of the secondary legislation that is sought to be introduced, in my judgment that must represent (at the latest) the decision of the Minister. A letter before action had been sent by AIMS to DEFRA before the Regulations were laid before Parliament. The conventional approach is that it is the decision of a Minister or public body that is susceptible to judicial review. Mr Mercer argued that it would have been premature for judicial review proceedings to have been started earlier, but I do not accept that.
The issue of an extension of time was first raised in AIMS’ skeleton for the hearing, unsupported by any discrete evidence going to explain the delay. That is not a promising start, to what is in any event a late application for an extension of time on any view. Mr Mercer QC relies upon R (on the application of Burkett) v London Borough of Hammersmith and Fulham [2001] Env.LR 39 as support for an extension. In that case, private individuals who were affected by a proposed substantial mixed use development scheme near Wandsworth Bridge in London sought judicial review in a planning matter. The Secretary of State had declined to call in the application, and outline planning permission was granted. The applicant was refused permission to apply for judicial review by Richards J (as he then was) on the grounds of delay, holding that the relevant date for time running for these purposes was the date upon which the resolution to grant planning permission was made, rather than the date when the Secretary of State declined to call in the actual application, or the actual grant of permission itself.
The applicant appealed against this refusal to grant permission to the Court of Appeal. In the judgment dismissing that application, the following was stated:
“[14] As to delay, [the applicants] submits that it is perfectly reasonable for private individuals such as the applicants not to rush into litigation when a resolution of the present kind is passed…..but to wait and see whether the Secretary of State, who is automatically seized of the question, decides to call the application in…..
So far, in principle though subject to a caveat to which we will come, we agree. Judicial review is in principle a remedy of last resort. It follows, as it always does when a potential applicant for judicial review expeditiously seeks a reasonable way of resolving the issue without litigation, that the court will lean against penalising him for the passage of time and will where appropriate enlarge time if the alternative expedient fails.” Although this case went to the House of Lords, the Court of Appeal decision was reversed on other grounds; [2002] 1WLR 1593.
It is correct to state that judicial review proceedings must be ones of last resort. Equally, it is also important that there is a precise date upon which one is able to state that this is when the decision was taken. Prompt judicial review proceedings are important, not least because they challenge the lawfulness of decisions made by Ministers and public bodies. If such decisions are unlawful, they need correcting promptly. However, this authority does not mandate that the necessary extension of time will inevitably be available if the time limit is not observed. All it states is that time will be enlarged “where appropriate”.
I do not consider that the revocation of the 2014 WATOK Regulations is relevant to these judicial review proceedings, nor is that relevant to the application (such as it is) for an extension of time. In my judgment, that revocation the day before those Regulations were to come into force is an entirely neutral factor in any application for an extension. AIMS must have known, at the very latest, that the 2015 WATOK Regulations were going to be brought into force when they were laid before Parliament.
In my judgment, there are two very important considerations for any court asked for an extension of time. The first important consideration is how long an extension is required, and the second is what explanation is provided for the delay? There are others too (such as the effect of the delay, as well as taking a view on the merits of the application itself). Here, the answer to the first question is 17 months approximately; that is on any view a very long period, particularly in the context of a three month limit. The second remains unanswered and unaddressed. The reason the merits may fall to be considered is if there is a very weak claim, or an overwhelmingly strong claim, in my judgment that should be taken into account as well. Obviously, if a substantive claim is being considered at the same time as an extension of time is sought, then the prospects for that claim can be considered with a degree of precision. That will not always be the case, but it is the case here.
I have found this claim would fail in any event. I would not have granted an extension of time in any event, not least due to the complete absence of explanation for it. Even if my views on the substantive issues above were different, this claim would have failed on the grounds of delay.
The Relief sought by AIMS
In view of my conclusions on the issues above, the question of the relief sought by AIMS does not arise. AIMS frankly accepted that the relief sought in the Grounds went too far, with the potential of striking down Paragraph 6(1)(a) in its entirety, even though it governs other animals too in respect of which the same herd instincts do not arise (or certainly do not arise to the same extent), namely bovine animals and goats. The effect of the proceedings as originally drafted succeeding would have had the effect of declaring unlawful the provisions for the slaughter of these animals too, but on the basis of animal characteristics that do not apply to them. Mr Mercer QC in argument accepted that the original relief “was too wide”. It was therefore sensibly agreed by the parties that further discussion between them, and if necessary further submission to the court, would take place in the event that the judicial review proceedings succeeded. However, as they have not, the issue does not arise. Accordingly, the authorities relied upon by AIMS in this respect, and whether the Regulations can be “read down” or not, do not require to be addressed and no issue of the appropriate relief arises.
Conclusion
For the reasons explained in the body of this judgment, the proceedings by AIMS seeking judicial review of Paragraph 6(1)(a) of the 2015 WATOK Regulations are dismissed and resolved in favour of the Defendant, the Secretary of State for Environment, Food and Rural Affairs.