Animal Welfare (Sentience) Bill 2021

Last week, on 13 May, following its announcement in the Queen's Speech, the Government published its Animal Welfare (Sentience) Bill, which will have its Second Reading in the House of Lords shortly. This is part of the Government's much wider Action Plan for Animal Welfare.

The furore around animal sentience began as a result of Brexit because, with our departure from the European Union, there would no longer be an explicit reference in law applicable in the UK to the sentience of animals. Within EU law, the obligation on the EU and Member States to "pay full regard to the welfare requirements of animals" is a long standing one and appears in the original Treaty of the European Union. Specific reference to animal sentience was inserted much later by an amendment made to the original wording in the Treaty of the European Union by the Lisbon Treaty and is now found as Article 13 of the consolidated treaty – Treaty on the Functioning of the EU (TFEU). The reference to animals as sentient is explanatory in purpose making clear that the reason why regard must be had to animal welfare is because animals are recognised as sentient. The obligation under the TFEU to "pay full regard to the welfare requirements of animals" is balanced against the need to respect "the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage", and is limited to specified areas of policy: "agriculture, fisheries, transport, internal market, research and technological development and space policies". Moreover, because this requirement was enshrined in EU law there was little, if any, direct effect in UK domestic law. It could be assumed that the sentience, and therefore welfare, of animals had been duly considered in any EU regulation or directive applied in UK law, because of our membership of the Union.

When the Government introduced the Animal Welfare (Sentencing and Sentience) draft Bill in 2018, to transfer the duty to have regard to animal welfare to UK ministers directly, this part of the Bill was universally criticised. It was clear that it would have left almost all, and any, ministerial decision open to challenge by judicial review. The Government was told, in no uncertain terms, to go away and think again. The Report of the Environment, Food and Rural Affairs (Efra) Committee can be found here.

The recognition of animal sentience and the consequent need for animal welfare laws is nothing new. Animal welfare laws in the UK date back nearly 200 years to 1822 when the Cruel Treatment of Cattle Act was passed. Successive governments and parliaments have recognised the fact of animal sentience both prior to, and since our membership of the EU, as reflected in the body of animal welfare legislation on the Statute Book, including the Animal Welfare Act 2006. Welfare laws in this country go far beyond the minimum standards set by the EU, and it is unclear why simply putting the fact of animal sentience into a law would achieve any improvement in animal welfare.

In evidence before the Efra Committee examining the 2018 Bill, Mike Radford, Reader in Animal Welfare law at the University of Aberdeen noted: "There has never been any question that Parliament recognises sentience in other species. Right from 1822, when this place passed the first animal protection legislation, it was based on the assumption that those animals had the capacity to feel pain and pleasure." As such, he questioned whether placing the principle of animals as sentient formally on the statute book would make any practical or "legal difference … for the simple reason that it is open to Parliament to pass whatever legislation it wishes to protect animals and to promote welfare. In so doing, it is doing that on the basis that those animals are sentient."

One of the suggestions made to the Efra Committee is that there should be some reporting requirement, or ability to hold ministers to account, to ensure that in the formulation and implementation of policy they have considered animal welfare. The Government has taken this route in this latest sentience bill.

The current Animal Welfare (Sentience) Bill is only six clauses long. It would establish an Animal Sentience Committee, with members appointed by the Secretary of State for the Environment. This Committee 'may' produce a report in relation to "any government policy' that 'is being or has been formulated or implemented'. The report will set out the Committee's views on 'whether, or to what extent, the government is having, or has had, all due regard to the ways in which the policy might have an adverse effect on the welfare of animals as sentient beings'. These reports are to be published and the Secretary of State must respond and share that response with Parliament.

In effect we have a mechanism for holding government to account but one that does not stop decisions or policies that may have negative animal welfare consequences. It does, however, mean that they will face greater scrutiny. Much will depend on how the Animal Welfare Sentience Committee works in practice. As the legislation is drafted the Committee is the creature of government, whose members are appointed by the Secretary of State. Given that the Committee's remit covers the entirety of government policy and from formulation to implementation the Committee will need huge resources. It could look not just at wildlife management and farming practices but also planning policy, trade policy, or where we source medicines for the NHS. There is seemingly no limit. Yet, how is the independence and expertise of the Committee to be assured? Is the Committee in danger of being hijacked by animal rights or other agendas? Will the Committee genuinely concern itself with all policy areas, or in fact simply focus its energies on obvious animal issues falling within Defra's portfolio? Will it actually become another stick to beat land managers, game keepers and farmers? There are a lot of unanswered questions, and we will be asking them.

In principle recognising sentience and holding the Government to account in this area is not a bad thing, and the Countryside Alliance has always recognised the fact that animals are sentient beings and supports all genuine welfare measures. Those who have the task of husbanding animals and managing wildlife acknowledge and understand the fact that animals are sentient and the consequent need to avoid causing animals unnecessary suffering and of acting humanely in their dealings with animals. Of course, recognition of sentience and the welfare needs of animals is not the same as recognising that animals have rights, in the sense that human beings have rights, and it is important that animal welfare is not confused with animal rights. The inclusion of sentience in UK law must not damage the ability of farmers and land managers to manage wildlife humanely and responsibly.

The Alliance will continue to work with the Government, other stakeholders and parliamentarians to ensure that the Bill does what the Government says it wants it to do and to try and ensure it does not become a Trojan horse, used by extreme animal rights activists and environmentalists, to attack proper wildlife management, farming or the economic well-being and way of life of our rural communities.

Our briefing note for second reading in the House of Lords can be found here.