Sense and Sentience

Recognising sentience and ensuring animal welfare is respected is no bad thing, but it must not be hijacked by animal rights activists and environmentalists to attack wildlife management, farming and rural communities, says James Legge, Director of Public Affairs at the Countryside Alliance.

Following the recent round of elections, we are facing an unprecedented raft of measures and legislation in all parts of the UK. The first of these, the Animal Welfare (Sentience) Bill was debated by the Lords on 16th June. 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. There has always been an obligation on the EU and Member States to "pay full regard to the welfare requirements of animals" but specific reference to animal sentience was only added later by the Lisbon Treaty. The reference to sentience is explanatory. It is because animals are sentient that regard must be paid to their welfare. Importantly, the welfare obligation in EU law is balanced against the need to respect "…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". In practice, because of the relationship between EU and domestic law, it always had little, if any, direct effect in UK law. This did not stop an outcry from the animal rights lobby when the EU withdrawal legislation did not carry over this reference to sentience. It is a moot point as to whether we need sentience enshrined in UK law at all.

The recognition of animal sentience and the consequent need for animal welfare laws is nothing new. Our animal welfare laws date back nearly 200 years. Mike Radford, reader in Animal Welfare Law at the University of Aberdeen told parliamentarians in 2018 that "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." He questioned whether placing reference to 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." His comments were occasioned by the draft Animal Welfare (Recognition of Sentience and Sentencing) Bill 2017 which sought to place a duty on ministers to have regard for animal welfare. The bill was universally ridiculed as it would have left almost all ministerial decisions open to legal challenge. The government was told, in no uncertain terms, to go away and think again.

One of the suggestions made in 2017/18 was for a mechanism to ensure ministers take account of animal welfare in the formulation and implementation of policy. This approach, avoiding the risk of endless litigation, has been adopted in this latest bill. The bill 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.

On the face of it, this is a limited measure, which may do little more than win the government some good headlines. However, much will depend on how the committee works in practice. There are questions that need to be answered. We already have an Animal Welfare Committee, why do we need another one? Given that the committee's remit covers the entirety of government policy, the committee will need huge resources. Will it mainly look at wildlife management and farming practices within Defra's remit or genuinely look across all departments at things like planning policy, trade policy, or where we source medicines for the NHS? How is the independence and expertise of the committee's members to be ensured? Is the committee in danger of being hijacked by animal rights or other agendas? Will it actually become another stick to beat land managers, gamekeepers and farmers? Does it actually help avoid endless legal challenges? There are a lot of unanswered questions, and the Alliance is asking them, as did many peers during the debate. Other peers made it abundantly clear that the animal rights brigade do indeed see this legislation as a means to advance their agendas; and we know only too well who will be the first in their sights. Far from allaying our fears, the debate showed we are right to be concerned, and the government should be too.

The principle that recognising sentience and ensuring animal welfare is considered across Whitehall is not a bad thing. Those who have the task of husbanding animals and managing wildlife understand that animals are sentient and the consequent need to avoid causing animals unnecessary suffering and of acting humanely in their dealings with animals. The Countryside Alliance has always supported genuine welfare measures and will continue to do so. However, animal welfare must not be confused with animal rights. The inclusion of sentience in UK law must not be allowed to become a Trojan horse, used by extreme animal rights activists and environmentalists, to attack wildlife management, farming and rural communities and our way of life. The government needs to listen and amend the bill accordingly.

This article was first published in the Summer 2021 issue of My Countryside magazine.