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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> LJ Fairburn & Son Ltd & Ors, R (On the Application Of) v Secretary of State for Environment Food and Rural Affairs [2024] EWHC 65 (Admin) (19 January 2024) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2024/65.html Cite as: [2024] WLR(D) 42, [2024] EWHC 65 (Admin), [2024] PTSR 656 |
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KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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The King on the application of (1) LJ FAIRBURN & SON LTD (2) JW GATE AND SON OF LANGRIGG HALL (3) MORTON GRANGE FARM LTD (4) ROY SCAMAN FARMS (5) BJ TOMLINSON & SON (6) SUNRISE POULTRY FARMS LTD (7) YORKSHIRE FARMHOUSE EGGS LIMITED |
Claimants |
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- and - |
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SECRETARY OF STATE FOR ENVIRONMENT FOOD AND RURAL AFFAIRS |
Defendant |
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- and - |
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NATIONAL FARMERS' UNION OF ENGLAND AND WALES |
Interested Party |
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MARK WESTMORELAND SMITH and JONATHAN WELCH (instructed by Government Legal Department) for the Defendant
MALCOLM BIRDLING and JAGODA KLIMOWICZ (instructed by NATIONAL FARMERS' UNION) for the Interested Party
Hearing dates: 12 and 13 December 2023
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Crown Copyright ©
Mrs Justice Hill:
Introduction
Ground 1: The Defendant's failure to compensate for healthy birds condemned to be slaughtered (rather than those actually slaughtered) under the original policy is in breach of the 1981 Act, on conventional principles of statutory interpretation.
Ground 2: The failure also infringes the Claimants' rights under Article 1 of Protocol 1 ("A1P1") to the European Convention on Human Rights ("ECHR").
Ground 3: The new policy is unlawful for the same reasons as those under Grounds 1 and 2.
The factual background
AI
The 2021/2022 AI outbreak
Procedure once AI is suspected
The calculation of compensation under the old policy
The 2022/23 outbreak and the new policy
"Under the new plans, the Government will alter the existing bird flu compensation scheme allowing compensation to be paid to farmers from the outset of planned culling rather than at the end. This will allow us to provide swifter payments to help stem any cash flow pressures and give earlier certainty about entitlement to compensation. The payments better reflect the impact of outbreaks on farmers" [emphasis added].
The key statutory provisions
"(1) In this Act, unless the context otherwise requires, "disease" means cattle plague, pleuro-pneumonia, foot-and-mouth disease, sheep-pox, sheep scab, or swine fever, subject to subsection (2) below.
(2) The Ministers may by order for all or any of the purposes of this Act extend the definition of "disease" in subsection (1) above so that it shall for those or any of those purposes comprise any other disease of animals.
(3) In this Act, in so far as it applies to poultry, and unless the context otherwise requires, "disease" means—
(a) fowl pest in any of its forms, including Newcastle disease and fowl plague; and
(b) fowl cholera, infectious bronchitis, infectious laryngotracheitis, pullorum disease, fowl typhoid, fowl pox and fowl paralysis,
subject to subsection (4) below.
(4) The Ministers may by order for all or any of the purposes of this Act —
(a) extend the definition of "disease" in subsection (3) above so that it shall for those or any of those purposes comprise any other disease of birds; or
(b) restrict that definition so that it shall for those or any of those purposes exclude any of the diseases mentioned in paragraph (b) of subsection (3)".
"(1) The Minister may, if he thinks fit, cause to be slaughtered—
(a) any diseased or suspected poultry;
(b) any poultry which are or have been in the same field, pen, shed or other place as, or otherwise in contact with, diseased poultry or which appear to the Minister to have been in any way exposed to the infection of disease;
(c) any poultry the Secretary of State thinks should be slaughtered with a view to preventing the spread of avian influenza or Newcastle disease.
(1A) The Secretary of State may exercise the power under sub-paragraph (1)(c) whether or not poultry—
(a) are affected with avian influenza or Newcastle disease or suspected of being so affected;
(b) are or have been in contact with poultry so affected;
(c) have been exposed to the infection of avian influenza or Newcastle disease;
(d) have been treated with vaccine against avian influenza or Newcastle disease".
"(2) The Minister shall for poultry, other than diseased poultry, slaughtered under this paragraph pay compensation, which shall be the value of the bird immediately before it was slaughtered".
"(3) The Minister may by order prescribe the payment of compensation in accordance with a scale approved by the Treasury for diseased poultry slaughtered under this paragraph, being poultry affected with any disease other than fowl pest in any of its forms, including Newcastle disease and fowl plague".
Relevant principles of statutory interpretation
(i) In construing a statute, the task of the court is to ascertain the intention of Parliament as expressed in the words it has chosen. The Parliamentary intention is to be derived from the terms of the Act as a whole, read in its context. Once it has been ascertained, the court must give effect to it so far as the legislative text permits: R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687 at [38], per Lord Millett;
(ii) The intention of Parliament is "an objective concept" and "a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used": R v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme Ltd [2001] 2 AC 349 at pp.396G, per Lord Nicholls;
(iii) The "starting-point" – and usually the end-point - is to find the "natural and ordinary" meaning of the words…used, viewed in their particular context (statutory or otherwise) and in the light of common sense": London Borough of Lambeth v Secretary of State for Housing, Communities and Local Government [2019] UKSC 33 at [19], per Lord Carnwath (with whom Lord Reed, Lady Black, Lord Lloyd-Jones and Lord Briggs agreed);
(iv) When determining the objective meaning of the words used, regard should be had to the purpose of a particular provision and the language should be interpreted, as far as possible, in a way which best gives effect to that purpose: Barclays Mercantile Finance Ltd v Mawson [2004] UKHL 51 at [28] (citing Inland Revenue Commissioners v McGuckian [1997] 1 WLR 991 at 999, per Lord Steyn); and
(v) The consequences of the rival interpretations are relevant when assessing Parliament's intention: a choice which produces a result which cannot have been intended is to be rejected if there is a less unsatisfactory alternative: Project Blue Ltd v Commissions for Her Majesty's Revenue and Customs [2018] 1 WLR 3169 at [110], per Lord Briggs (in a dissenting judgment).
"…it is a proper rule of construction not to construe an Act of Parliament as interfering with or injuring persons' rights without compensation, unless one is obliged so to construe it. If it is clear and obvious that Parliament has so ordered, and there is no other way of construing the words of the Act, then one is bound to so construe them, but if one can give a reasonable construction to the words without producing such an effect…one ought to do so".
The issues
(1): Is AI included in the definition of "disease" in section 88(3) of the 1981 Act ("the disease issue")?
(2): On conventional principles of statutory interpretation, does the right to compensation under paragraph 5(2) of Schedule 3 to the 1981 Act accrue at the point of condemnation or the point of slaughter ("the accrual issue")?
(3): If not, or in any event, do the Claimants' rights under A1P1 generate such an interpretation ("the A1P1 issue")?
(4): In light of the findings on Issues (1)-(3), does Ground 3 succeed ("the Ground 3 issue")?
(5): In respect of Grounds 1 and 2, (i) were they brought in time?; (ii) if not, should time be extended for the Claimants to bring them?; (iii) should the Claimants be granted permission to bring them?; and (iv) if so, do they succeed? ("the Grounds 1 and 2 issues").
(1): The disease issue
The parties' submissions in outline
Analysis
Conclusion on the disease issue
(2): The accrual issue
(i) The ordinary meaning of paragraph 5(2)
(ii) The wider statutory context
(iii) The statutory purpose
(iv) The consequences of the competing constructions of paragraph 5(2)
Conclusion on the accrual issue
(3): The A1P1 issue
"Protection of property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties".
(i) The term "possessions" encompasses immovable and movable property and other proprietary interests;
(ii) A1P1 consists of three distinct but connected rules: the first, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second, contained in the second sentence of the first paragraph, covers only deprivation of possession and subjects it to certain conditions; and the third, in the second paragraph, recognises that the Contracting States are entitled, inter alia, to control the use of property in accordance with the general interest; and
(iii) To be deemed compatible with A1P1 an interference with the right to the peaceful enjoyment of one's property must fulfil certain criteria: it must comply with the principle of lawfulness and pursue a legitimate aim, by means reasonably proportionate to the aim sought to be realised.
The A1P1 issues in this case
(i) The deprivation/control of use issue
(ii) The compatibility issue
Conclusion on the A1P1 issue
(4): The Ground 3 issue
(5): The Grounds 1 and 2 issues
The relevant chronology
(i) Were Grounds 1 and 2 brought in time?
(ii) If not, should time be extended for the Claimants to bring Grounds 1 and 2?
(iii) Should the Claimants be granted permission to bring Grounds 1 and 2?
(iv) If so, do Grounds 1 and 2 succeed?
Conclusion
Note 1 This order was later revoked and replaced by the 2006 Order cited at [18] above, in part to rectify errors identified by the Joint Committee on Statutory Instruments in their 31st Report for 2005-2006. [Back]