9th August 2021
Over at the Times there is a news report about the Animal Welfare (Sentience) Bill currently before parliament.
EXC: Boris Johnson is facing a cabinet split over the Animal Sentience Bill
At least two cabinet ministers, Jacob Rees-Mogg and Mark Spencer, are understood to be privately sceptical of the legislation. Critics argue it could be hijacked by activistshttps://t.co/5hPo75jcbh
— Eleni Courea (@elenicourea) August 9, 2021
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One response to this news is to doubt that cabinet ministers are sentient beings.
https://twitter.com/davidallengreen/status/1424658384020819971
But that would be silly.
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The bill is worth looking at, both for what it does and what it does not do.
The six-clause bill – with three operative clauses – does very little.
Clause one provides for an ‘Animal Sentience Committee’ to be established and maintained.
There is, of course, no need for primary or indeed any legislation for a committee to be formed.
Committees can be formed and dissolved informally in central government.
Clause two provides that the committee ‘may’ (not ‘shall’ or ‘must’) produce and publish reports on which government policies might (not necessarily will) have ‘an adverse effect on the welfare of animals as sentient beings’.
The committee also ‘may’ (again not ‘shall’ or ‘must’) make recommendations for how the government may have ‘all due regard to the ways in which the policy might have an adverse effect on the welfare of animals as sentient beings’.
Again, this is weak stuff – the committee would have no legal obligation to produce any reports or recommendations at all.
The bill certainly does not place a direct statutory duty on departments to have ‘all due regard to the ways in which [a] policy might have an adverse effect on the welfare of animals as sentient beings’.
(Though such a duty should, in my view, exist.)
Clause three – the last of the operative clauses – is the one where there is (slight) legal kick.
When a report is published, the government ‘must’ (and not only ‘may’) lay a response before parliament within three months.
The government’s response may be in the barest terms, just saying the report and any recommendations are noted, and it will have discharged its duty.
And that is it.
That is all the bill does.
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On the face of it, there is nothing in the bill that warrants the response of some ministers as described in the Times article.
In particular, there is little formal scope for anything to be ‘hijacked’ by ‘activists’.
And even if the committee were to publish a critical report packed with ambitious recommendations, there is nothing which would legally oblige the government to do anything different from what it would want to do anyway.
The bill (like the international aid legislation and other examples) is not especially substantial legislation.
One is not surprised that the government’s website says that the bill is ‘enshrining sentience in domestic law’.
That word: ‘enshrining’.
Hmm.
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But.
Perhaps because of my own bias (as a supporter of animal rights), I think there is something to be said for this legislation, weak as it is.
Even if there is no legal obligation on the government to follow any recommendations, it does oblige the government to publicly address any report and thereby any recommendations.
That obligation may turn out in practice to be as ultimately ineffective as the similar obligation on the government to report on why it is not complying with the international aid target.
It is, however, better than nothing.
It forces some accountability.
This duty being placed on a statutory basis makes it a little more difficult for the government to ignore any concerns altogether, which would be the case if the proposal had not statutory basis at all.
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The definition employed by the bill for animals – a lovely piece of drafting – is that ‘“animal” means any vertebrate other than homo sapiens’.
This is perhaps a little problematic – as there are invertibrates that are sentient and indeed highly intelligent (as this blog has recently discussed).
As Peter Godfrey-Smith sets out in his outstanding book Other Minds: The Octopus, The Sea, and the Deep Origins of Consciousness:
‘If we can make contact with cephalopods as sentient beings, it is not because of a shared history, not because of kinship, but because evolution built minds twice over.
‘This is probably the closest we will come to meeting an intelligent alien.’
The bill however provides that ‘invertebrates of any description’ can be added to the category of sentient animals by a secretary of state, spineless or otherwise.
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Usually I would be disdainful of such gesture-based ‘enshrining’ legislation – and I am sceptical about much of this bill.
The only direct merit of this legislation is in terms of forcing departments to take account in policy-making the sort of concerns that departments should be taking of anyway.
The recent turn away by the supreme court from allowing policy challenges in judicial review probably means that any non-compliance by a department with the committee’s recommendations will not get any judicial remedy.
But there could be indirect effects – though not the feared ‘hijacks’ of Rees-Mogg and others.
Courts when dealing generally with questions of animal rights will now be aware that the legislature had provided for a formal mechanism for policy recommendations about animal welfare to be taken seriously.
That may not make any direct difference in any litigation, but the existence of a statutory scheme would inform and promote judicial and legal awareness that the welfare of animals is not a trivial or extremist position.
This legislation is a small step towards enforceable animal rights (or at least to an enforceable duty that animal welfare be considered in policy-making) and it should be welcomed for what little it does – though that is a lot less than what its supporters and opponents aver that it does.
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As an aside to the blog presumably sentient beings must include unborn human children and one can envisage problems here for the supporters of abortion.
If you read the post to the end, you will see the law excludes homo sapiens.
In addition to which, unborn children are – except for a very narrow window very close to their natural gestation period – not a “thing” in law anyway.
Foetuses have no human rights, because – mostly – legally they aren’t legally “human.”
When does a homo become sapiens?
In the dim and distant past, when I was a young civil servant, First Parliamentary Counsel would have told any Minister (or even a PM’s wife) not to waste his staff’s valuable time or the time of Parliament with unnecessary legislation of this kind.
Alas, these days have long gone. My concern is that this and some previous governments want Parliament to spend its time considering unnecessary legislation rather than properly holding the government to account for its many misdemeanours.
Ok, so the Bill may not have the strength of the Kraken but l’ll take it as well. If Jacob Rees-Mogg is complaining about the proposals included in it then surely it must be worth supporting and an improvement to what there is?
But what l find distressing are people thinking that we can’t promote, draft legislation or campaign for better Animal Welfare because it’s a distraction from other pressing issues. Yet there’s something called multi tasking otherwise how can we breathe, eat and pass wind at the same time!
Maybe it will be another nail in the coffin of blood sports and their supporters in the countryside or wherever there is suffering inflicted upon an animal for simply being the wrong type of animal in the wrong place (i.e. its habitat). I’m quite prepared to find out.
Hopefully this bill can only be a good thing for animals 🙏
For the purposes of scientific research, protected species are defined as living vertebrates other than man, and living cephalopods. Life is effectively defined as starting 2/3 of the way through embryonic development – earlier embryonic stages are not protected as it is believed that sensation and the ability to feel pain only begins late in development.
https://www.legislation.gov.uk/ukpga/1986/14/section/1
It’s surprising to me that they seem to have re-invented the definition rather than using one common definition across both pieces of legislation. The definition used here seems both more stringent (no exemption for embryonic forms) and less stringent (cephalopods are not covered).
Well, cephalopods were added in 2012 by https://www.legislation.gov.uk/uksi/2012/3039/regulation/3/made
That was implementing Directive 2010/63/EU. And the Animals (Scientific Procedures) Act 1986 was itself implementing Directive 86/609/EEC.
Before that, the UK protections dated back to the anti-vivisection Cruelty to Animals Act 1876, which concluded “This Act shall not apply to invertebrate animals.”
So perhaps what we are seeing here is a turn back of the clock from modern EU law to an English precedent, albeit an antiquated Victorian era one.
This may be my favourite comment for ages :-)
You’re welcome.
In other news, despite being initially deterred by its silly season overtones, on reading the relevant court decision today, I was struck by the tasty mix of judicial deference to the decision maker, the very wide powers the minister enjoys on public health matters, and contradictory evidence from various diagnostic tests with consideration of the possibility of false positives and false negatives.
“Judicial review is not … an appropriate set of proceedings in which to determine … complex scientific questions.” And “[On] public health issues which require the evaluation of complex scientific evidence, the […] court may and should be slow to interfere with a decision which a responsible decision-maker has reached after consultation with its expert advisors.”
Not COVID – although I suspect the cause has drawn support from members of the antivax community – but Geronimo. Despite positive tests in 2017, and a losing a High Court judicial review case in 2019, the creature remains alive and kicking nearly four years later, with the department taking to their own blog to address “misleading coverage in several media outlets”.
* https://www.bailii.org/ew/cases/EWHC/Admin/2019/1783.html (I could not find a report of an appeal)
* https://deframedia.blog.gov.uk/2021/08/09/geronimo-the-alpaca/
Perhaps something you might want to get your teeth into, give your recent posts on the (mis)treatment of sentient animals? Maybe you were working up to something for wider consumption already?
Initially I considered this bill to be an exercise in political virtue signaling, then I subscribed to the notion that the bill also prevents another cause being championed. But the reason that this bill has no teeth rests more likely with the practicality of allowing the government to sign food related trade deals with other less ‘sentient’ governments?
The phrase ‘does not do a lot but the little is does do should be welcomed’ reminds me of a valuable lesson I learned decades ago in reading the seminal book by Sir Llewelyn Woodward “The Age of Reform: 1815 – 1870” – #13 in the Oxford History of England series.
It’s a dry tome but full of facts about how the social reforms that form the foundation of today’s liberal social democracy.
Woodward notes that what we today consider as an absolute redline, for example that children must attend school and must not be forced to work actually took two generations to achieve.
At all levels Georgian and early Victorian society held it as an absolute that parents decided everything about their children and if they did not school them and instead made them work then that was their absolute right to do so.
Woodward documents how when social reformers (driven by the desperate conditions big children in mines, mills, farms) proposed mandating education and banning child labour up to age 13 they faced ferocious opposition from parents, and farmers, mine and factory owners. The main argument was that this was no business of government and it was ‘Gods will’ that parents can solely decide what happens to their children – incidentally an argument making a strong comeback today in the way religious parents refusing to allow their children to be taught LGBT rights.
Relevant to this thread is that fact that the first go at reforms had to be very watered down to pass Parliament and the first laws were essentially only high sounding principles but given no mechanism of inspection and enforcement.
But as Woodward points out, it germinated a powerful idea in the population of children having special rights to be protected and it was the next generation when proper laws with teeth where enacted and widely accepted.
It will be the same with accepting animal sentience and the consequences that flow.