Category: Animal rights

Two set-backs for animal welfare law – and a consolation

25th May 2023

While I prepare a detailed post on Boris Johnson and the Cabinet Office lawyers thingie, this is just a quick post to note a couple of setbacks to another interest of this blog: animal welfare law.

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First, you may recall this blog covering the “Frankenchicken” claim, which I thought was a well-made application for judicial review.

Unfortunately the High Court did not, though the judgment is rather difficult to follow – and I may unpack the judgment at a later date.

But plaudits must go to the Humane League (and, yes, we all know the puns for the 80s pop band) for putting together such an impressively crafted case.

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Second, late today on a quiet parliamentary sitting, the government announced it was reneging on the Animal Welfare (Kept Animals) Bill – even though it was at an advanced parliamentary stage.

There are news reports on this here and here.

You may recall that the Conservative manifesto for 2019 devoted an entire page to animal welfare, making (specific) commitments:

And you may also recall two senior cabinet ministers recently insisting that the House of Lords had to accept that the (generalised) content of the Conservative manifesto as the “will of the people”:

But it would seem the government picks-and-chooses which of its manifesto commitments are serious enough to threaten the House of Lords with, and which the government cannot even be bothered with so that it can progress its own bill.

The reason for this pulling of a bill appears to be that the government does not feel confident that it can resist amendments that would further protect animal welfare beyond the protections promised in the manifesto.

It is a depressing moment for animal welfare law.

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On the bright side, however, there is consolation: the great Chris Packham – who does sterling work not only on animal welfare but also neurodiversity – won his libel case, and the judgment is well worth reading.

(The pic above shows him supporting the “Frankenchicken” claim which was coincidently heard at the High Court at same time as his libel claim.)

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“Frankenchickens” and the law

3rd May 2023

Scrolling though Instagram while trying to think of a legal angle on the coronation worth writing about I came across this:

As it happens I have a lot of time for the broadcasting of Chris Packham and Megan McCubbin, and for my fellow Brummie Benjamin Zephaniah, and so I thought this may be an interesting case to write about for a blogpost.

What is being described as a “Frankenchicken”?

According to Zephaniah: “Decades of selective breeding have turned [chickens] into monstrous frankenchickens who can barely carry their own weight, and who lie in crowded barns, being burned by their waste.  We should not be treating animals like this.”

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The applicant – The Humane League – was kind enough to share their legal arguments with me.

At the heart of this legal case is a paragraph.

It is paragraph 29 in a schedule, in a schedule to some regulations, which are in turn regulations made under an Act of Parliament.

And this paragraph 29 provides:

“29.  Animals may only be kept for farming purposes if it can reasonably be expected, on the basis of their genotype or phenotype, that they can be kept without any detrimental effect on their health or welfare.”

(My emphasis added, for a reason which will become obvious.)

The schedule containing this paragraph has effect by reason of regulation 4 of the relevant regulations, and this provides:And these regulations were made under section 12 of the Animal Welfare Act:

It is in this elaborate way that many things are regulated: provisions within provisions within provisions – a legislative pass-the-parcel.

The applicant in this case is contending the government misunderstands paragraph 29.

The applicant says paragraph 29 prohibits the keeping of animals for farming purposes unless it can reasonably be expected that, on the basis of their genotype or phenotype, that they can be kept without any detriment effect on their health or welfare.

The applicant says the government is in turn contending that paragraph 29 does not establish any such prohibition “and, moreover, [the government] disputes that the word “kept” refers to keeping at all”.

(I do not have access to the government’s legal argument.)

The applicant then contends that because the government misunderstands paragraph 29 the government thereby makes two further legal errors.

First, the misunderstanding means that the government has adopted and maintains policies and practices, including a Code of Practice and a system of monitoring and enforcement, founded on legal error – including a policy of non-enforcement.

And second, as the policies and practices do not discriminate against those who in breach of the paragraph, there is a consequential lack of equal treatment between producers.

The applicant’s press release sent to me states:

“The Department of Environment, Food and Rural Affairs (Defra), the defendant in the case, argues that it has no policy which condones or permits the use of Frankenchickens, despite fast-growing breeds being standard in the chicken industry.

“The case also challenges the ‘trigger system,’ Defra’s monitoring system aimed at detecting welfare issues associated with conventional chicken breeds, of which the overwhelming majority will be fast-growing.

“The trigger system requires slaughterhouse vets to report problems, but only if they occur above a given threshold – which The Humane League argues is far too high.

“A final ground of the case argues that the system in place is creating unequal treatment between chicken producers that comply with the law and those who do not.”

This, of course, is not an animal welfare blog – but from a law and policy perspective what is fascinating – and clever – about this case is that the applicant is seeking declaratory relief.

This means the court is being invited to declare the meaning of a legal instrument, in this case paragraph 29.

And this is a perfectly proper thing for a court to be asked to do.

The court is not being asked to directly quash any policy, but to say what a legal provision means.

And a paragraph deep in a schedule to regulations made under a statute is as much a statutory provision as section 1 of any Act of Parliament you can think of.

It also seems that there are differing views on what paragraph 29 means – and the view contended for by the applicant in this case has survived a permission hearing and so can be taken as at least arguable.

This is therefore not a simple try-on, but something the high court thinks is a serious legal question to be heard.

The framing of the case, however, means that if the applicant prevails then it will also pull away the basis of various policies and practices based on that paragraph.

That is an ambitious case to make, but again it is a legitimate and arguable one.

If the government has based policies and practices on a misunderstanding of the law then those policies and practices can fall too.

According to ITV, Defra argues that fast-growing chicken breeds are not inherently condemned to suffer health problems and that there is no scientific consensus saying so.

A spokesperson is quoted as saying:

“We are proud to have some of the highest animal welfare standards in the world.  All farm animals are protected by robust animal health and welfare legislation. This sets out detailed requirements on how farmed livestock, including meat chickens, must be kept.

The hearing is today and tomorrow.

I have no idea which side will win – though I am on the side of the chickens – but this is an example of litigation done well by a pressure group – and it is thereby an example of how such public interest litigation should be brought.

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You can read more on the Humane League’s campaign here.

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Has an American court recognised a ‘cocaine hippopotamus’ as a legal person?

1st November 2021

One of my interests in law is not about human beings and their constitutional ups and downs, but about something which (I aver) is of fundamental importance.

That is the extension of rights to animals that are recognised and enforceable by courts, and the acceptance that animals can be legal persons.

This should not be a strange proposition: after all, we confer rights and legal personality on corporations which do not actually (that is directly in a tangible form) exist.

This is not to say animals should have absolute rights (other than against human cruelty), but then again few human rights are absolute.

And if minors and the incapacitated (as well as corporations) can have their rights enforced on their behalf then there is no reason, in principle, why the rights of animals cannot be enforced on their behalf too.

It is just that, unless there is a reason not to do so, a court should be able consider the rights of an animal in any given situation.

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But, as a commentator, one has to take cases and other legal developments as you find them, and so that brings us to today’s subject.

The hippopotamuses of a drug lord.

This is the story of the hippopotamuses that descended from those that formerly belonged to Pablo Escobar.

(That is not a sentence I ever expected to type.)

This was the Guardian news report (based on a news agency report).

Huge, if true.

An American court conferring personality on an animal.

However, if you look at the report carefully, that is not quite what has happened – though what has happened is a welcome development.

The group which handled the American litigation is the Animal Legal Defence Fund.

Their press release is here.

In essence, the American court was asked to make an order in respect of litigation in Colombia.

The hippopotamuses are a party to the Colombian litigation.

From the press release, it appears that the American court had an application under this provision: Assistance to foreign and international tribunals and to litigants before such tribunals.

In that provision you will see this passage:

“The order may be made […] upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court.”

Stripped of the hippopotamus dimension, this is about a court in America making an order for the benefit of a party to litigation in another jurisdiction.

On this occasion, that party happened to be hippopotamuses, as opposed to a natural person or a corporation.

We have not seen the actual order of the American court (or a judgment), but going on the basis of the press release, that is more-or-less what the court did (with emphasis added):

“In granting the application pursuant to 28 U.S.C. § 1782 to conduct discovery for use in foreign proceedings, the court recognized the hippos as legal persons with respect to that statute.

“This U.S. statute allows anyone who is an “interested person” in a foreign litigation to request permission from a federal court to take depositions in the U.S. in support of their foreign case.

“The U.S. Supreme Court has said that someone who is a party to the foreign case “no doubt” qualifies as an “interested person” under this statute.

“The Animal Legal Defense Fund reasoned that since the hippos are plaintiffs in the Colombian litigation, they qualify as “interested persons” under this statute.”

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What the American court has decided, it seems, is not so much that an animal is a legal person but that the fact a party to foreign litigation happens to be an animal is not a bar to being an “interested person” under one statutory provision.

This does not mean the hippopotamuses are now legal persons for all purposes should they somehow manage to come to America.

Nor does it mean that the hippopotamuses have had any substantive rights (or perhaps even any procedural rights) recognised by the court.

The decision means only that hippopotamuses can be brought within a procedural definition.

In essence: a party to foreign litigation was accepted as being a party to foreign litigation.

They just happened to be hippopotamuses.

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Still: it is a start.

An American court could have (conceivably) have rejected the application on the basis that hippopotamuses are not capable of being persons, and so could not even be interested persons for this one procedural provision.

And a minor decision like this can be a move towards wider recognition in the next well-chosen case.

In America as in the United Kingdom we are some way off animals being accorded legal personality and having rights recognised by and enforceable in courts.

This case is a hippopotamus’s step towards that objective.

But on close examination the case perhaps does not live up to the news report headlines.

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Changing my mind about animal rights

8th October 2021

Once I did not think animals should have rights.

To the extent I had any view on the subject, my view was that ‘animals don’t have rights, but humans have responsibilities’.

After all: how could an animal have rights if an animal could not enforce them?

But.

The more I thought about it, the more that view just did not add up.

Lots of humans have rights that have to be enforced on their behalf – minors and the incapacitated, for example.

Even things that do not actually exist in physical form have rights and legal personality – corporations for example.

And so the fact that animals could not enforce their own rights was not a reason to deny them rights.

Then, as I looked at animal welfare law in the United Kingdom – a complex sprawling mess of legislation with arbitrary distinctions between species and various levels of protection (and lack of protection), and with varying degrees of enforcement (and lack of enforcement), it seemed to me that it would be far better if the whole thing was replaced with a single Animals Act (like the Children Act).

And if so, then the basis of the legislation should be that all animals have rights – not just the lucky ones.

Not necessarily absolute rights – but then again few human rights are absolute.

But that regard would have to be had to these rights by government and the courts.

And so, with with this change-of-mind, I wrote a column in this month’s Prospect – go and read it here.

Please let me have any comments below – and I will respond when I can.

The Animal Welfare (Sentience) Bill does not do a lot – but the little it does do should be welcomed

9th August 2021

Over at the Times there is a news report about the Animal Welfare (Sentience) Bill currently before parliament.

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One response to this news is to doubt that cabinet ministers are sentient beings.

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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Positive vs Normative Statements – You may not want to blame the lawyers but it remains a fact that lawyers facilitate(d) slavery, torture, imperialism, police brutality, and so on

8th August 2021

Today’s post is, in effect, a footnote to yesterday’s post on laws and systems – what connects slavery, torture, imperialism, police brutality and so on.

The reason for this post is that some commenters responded to yesterday’s post as if my primary purpose were to impose blame on lawyers for their role in the facilitation of slavery, torture, imperialism, police brutality and so on.

Lawyers were only doing their job, the responses went, and so it was rather unfair of me to blame them.

All they were doing was advising on the law, and that is what is lawyers do.

I was being unfair, the response averred.

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Such a protest is, in my view, to confuse positive and normative statements.

The existences of slavery, torture, imperialism, police brutality, and so on, in any organised society does – as a matter of positive fact – require the involvement of those who make and deal with laws.

This is simply because such things can only exist in an organised society if they are permitted – or at least recognised – by law.

And in modern societies, there is often a distinct profession for those who practise in laws: lawyers.

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Whether any lawyers – individually or collectively – should be regarded as culpable for recognising or permitting activities is a separate and distinct argument to the one advanced in yesterday’s post

There may, for example, be a ‘cab rank’ rule which obliged lawyers to make submissions to court that they personally did not agree with.

Or the world-view of the time and place may have meant that, say, slavery, torture, or imperialism were not morally contested – and so it may be that it would not be historically fair to regard the lawyers enabling such activities as being especially culpable.

But even taking such normative points at their highest, there remains the positive and undeniable fact.

That is the positive fact that slavery, torture, imperialism, police brutality, and so on, can only exist in any modern society because they are facilitated by those who deal with and practice in law.

And this remains true – even if we can excuse (or find excuses for) individual lawyers who participate(d) in recognising or permitting such activities.

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Laws and systems – what connects slavery, torture, imperialism, police brutality and so on

7th August 2021

This is a depressing post about law and policy, but it is one which is triggered by work I am doing on a particular project.

One of the things that I am researching and writing is about how lawyers made possible slavery and the slave trade – a topic that I wrote about at Prospect magazine, as well as in previous posts on this blog and on Twitter (see here and here).

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Of course: human beings are capable of being cruel to other human beings without laws or lawyers.

An individual person can coerce another person, can torture another person, can expropriate the possessions of another person – and so on – without any legal system or advisers in place.

That, unfortunately, appears to be the nature of our species – at least given the archaeological and historical record.

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For enslavement, torture, expropriation – and so on – to exist in any organised society (that is, say, a human grouping larger than Dunbar’s Number) requires the help of norms and rules.

Either such practices will not be prohibited or such practices will be positively facilitated.

In other words: slavery, torture and imperialism in any society depend on systems of rules being in place that enable them.

And in such modern societies, where the practice of law is usually a distinct profession, this in turn means that such practices are facilitated by lawyers.

Lawyers draft the relevant legal instruments, and lawyers then advise those who seek to rely on legal rights as set out in those instruments and otherwise.

And many of these lawyers did so (and some still do, for example, with the torture memoranda in the United States) with absolute moral neutrality – they are not here to gainsay the law, but to advise on what one can get away with under the law.

A similar legal infrastructure exists still in respect of defending the police and other state actors in respect of coercion and lethal force against civilians.

None of this – from slavery to systemic police brutality – none of this would be possible, but for laws and those who make those laws work.

Of course: the saving grace is that there are laws which (supposedly) prohibit each of these things, and there are lawyers who will challenge such laws and defend those affected.

And such liberal and progressive laws and lawyers should be celebrated.

But.

It has to be laws and lawyers which take on slavery, torture, imperialism, police brutality – and so on.

And this is because such things only exist in any organised society because of laws – and often lawyers – in the first place.

All that liberal and progressive  laws and lawyers are taking away are what other laws and lawyers provided in the first place.

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“For sale: dead baby octopus, thirty-six pence”

4th August 2021

There is a famous, six-word short story, attributed to Ernest Hemingway:

‘For sale: baby shoes, never worn’

The story even has its own Wikipedia page.

A powerful, poignant six-word story.

And here is another powerful, poignant short story, contained in a single tweet:

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’36 pence for a dead baby octopus’

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Now take a few minutes to watch either or both of the following videos.

The octopus is perhaps, after the great apes, the most intelligent creature on our planet.

We have so much to learn from the octopus about the nature of intelligence and practical problem-solving.

We have so much to respect about how a creature, so utterly different from the great apes, can – by adapting to its own environment – develop over millions of years an intelligence comparable to ours.

The octopus should be as cherished a species as the gorillas, the chimpanzees and bonobos, and the orang-utans.

But such is human folly we package them up, and we say instead:

“For sale: baby octopus, thirty-six pence”.

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