One trade freedom we could do without

28 June 2016 by Rosalind English

Supporters of Brexit and campaigners for animal welfare are not natural bedfellows. And indeed my quick poll of the intuitive reaction to Thursday’s vote revealed anxiety about a future race to the bottom in terms of welfare standards as European regulations are unpicked and new trade deals are carved out, whether with individual member states of the EU, the European Union as a whole, or under the surveillance of the WTO. (But here’s a call for action: https://action.ciwf.org.uk/ea-action/action?)ea.client.id=119&ea.campaign.id=53173&ea.tracking.id=98b15a7c&utm_campaign=transport&utm_source=ciwftw&utm_medium=twitter

Which is why it is critical at this moment to remember that the obstacle in the way of this country reviewing its participation in the trade in live animals is one of the pillars of the EU Treaty: free movement of goods. Animals are regarded as goods, and any measure adopted by a member state government interfering with the movement of livestock within the single market and beyond its borders with its trading partners has been prohibited as a “quantitative restriction” on exports. When we are eventually free of this overarching prohibition, no time should be lost in grasping the opportunity to alter our laws in recognition of humane standards in animal husbandry.

Some Background: veal crates and the port protests in the 1990s

Just at the time when the red carpet was being rolled out for the Human Rights Act, campaigners for the rights of non human animals had their eye on a much more difficult task: persuading the government that shipments of young calves to veal crates across the Channel defeated our hard-won animal welfare laws and were in breach of the EU’s own proclaimed animal protection measures. The practice of rearing veal for the popular white meat involves confining a week old calf in a box for five months until slaughter. The well respected farm animal charity Compassion in World Farming managed to convince the UK courts that they not only had standing but an arguable case that this export trade breached the domestic prohibition on the veal crate system as well as the relevant EU Convention and Recommendation. CIWF contended that the UK government had power under Community law

to restrict the export of veal calves to other Member States where the system described above was likely to be used, contrary to the standards in force in the United Kingdom and the international standards laid down by the Convention to which all the Member States and the Community had agreed to adhere….

the export of calves to face rearing contrary to the Convention is considered to be cruel and immoral by animal welfare organisations and a considerable body of public opinion, supported by authoritative scientific veterinary opinion, in the Member State from which exports occur.

In fact the EU rules merely contained stipulations as to the minimum width of veal crates and the composition of veal calves’ diets.

In any event, when the English court referred the question to the European Court of Justice, the ECJ ruled that the recommendation was advisory only and therefore member states were not bound by its stipulations [R v MAFF ex parte CIWF (1998)]. More importantly, and fatal to any further movement to restrict the trade in animals reared for food, the Court ruled that the UK was not able to derogate from the EC Treaty’s prohibition on export restrictions, even though the grounds for such a derogation are wide: “public morality, public policy or the protection of the health or life of animals” (Article 36 of the then EC Treaty). No, said the Court; the internal market must prevail –

a ban on the export of calves would …  affect the structure of the market and, in particular, would have a considerable impact on the formation of market prices, which would interfere with the proper functioning of the common organisation of the market.

Weirdly, the very gesture that the EU had made in the direction of animal welfare meant that the case came within the scope of EU law, which triggered superior rules concerning the functioning of the internal market. This meant that reliance on the derogation provision  could not be permitted. As the ECJ said

while Article 36 of the Treaty allows the maintenance of restrictions on the free movement of goods, justified on grounds of public morality, public policy or the protection of the health and life of animals, … recourse to Article 36 is nevertheless no longer possible where Community directives provide for harmonisation of the measures necessary to achieve the specific objective which would be furthered by reliance upon this provision (see, in particular, Case C-5/94 The Queen v MAFF ex parte Hedley Lomas [1996] ECR I-2553, paragraph 18) …

in reality, public policy and public morality are not being invoked as a separate justification but are an aspect of the justification relating to the protection of animal health, which is the subject of the harmonising directive.

This looking glass world – where the legislative moves of a supranational body undermine the very objective it claims to be achieving – is one from which we are now retreating.

The future for farm animals post-Brexit

In 1997 a  Protocol (No 33) on protection and welfare of animals was annexed to the EC Treaty, under which the Community and the Member States, in formulating and implementing the Community’s policies on, inter alia, agriculture and transport, are enjoined to pay full regard to the welfare requirements of animals. According to subsequent case-law, the protection of animal welfare is a legitimate objective in the public interest, the importance of which was reflected, in particular, in the adoption by the Member States of that Protocol (see, to that effect, Viamex Agrar Handel and ZVK, C‑37/06 and C‑58/06).  But even that Protocol did nothing to undermine the effect of the free movement of goods principle. And fine words are pointless without enforcement. It was recently revealed that the EU institutions were undermining a ruling by the CJEU  that proper veterinary inspections and scrutiny of rest periods for the animals concerned, food and water, should take place at border crossings of animals destined for slaughter in non-EU countries.  My post on that ruling is here. My letter to the Commissioner responsible elicited (today, oddly) the following courteous response:

First I would like to underline that the European Commission takes this issue very seriously and has been working to address the situation within the remit of its competence. As you may know there is EU legislation for the “protection of animals during transport”. Member States are primarily responsible for its application and enforcement. However, the Commission has been regularly assisting the Member States for that purpose through various actions.

These actions however amount to no more than “regular meetings to improve the coordination amongst Member States and increase the efficiency of the official controls on live animals transport including at exit points of the EU.”  No enforcement, no fines, just meetings.

Not that the post-Brexit future looks particularly bright for farm animals in this country. CWIF director Philip Lymbery is concerned that, in crafting new trade agreements, the UK government will still be shackled by hostility to export restrictions, whether from the EU or WTO. And, as in every other field, most UK law on farm animal welfare is based on EU law.

The UK will have to decide which of these provision to retain.  Farming bodies will probably press for some to be diluted.  We will have to oppose such moves.  We will also oppose attempts to replace legislation with industry codes of practice.

The export trade in live animals is one that has been touched upon in the referendum, but now is the time to square up to the issue. Tens of thousands of cattle, pigs and lambs a year face transport to intensive rearing and halaal slaughter in the EU and beyond. If we no longer want to play a part in such a trade, now is the time to consider our exit options. The CJEU will no longer have the last word on this issue, nor would any such initiative give rise to a fine under the  latest treaty provision or an action for damages  from the companies which profit from this trade.