May 19th, 2021
Chris Magee and Chris Petkov
The UK has a long history of regulating animal use. It had animal protection laws 64 years before child protection laws and first legislated to regulate animal research in 1876. Just prior to this it birthed the anti-vivisection movement, again well before human children had protection rights. Then, over the next 40 years the issue of animal research prompted riots in London, split the nation and pitted scientists against religious leaders, Queen Victoria (anti) against Charles Darwin (pro) and the medical establishment against writers and poets.
The UK government is now hoping to pass an animal sentience Bill. Let’s dive in.
The UK has been required by law to consider some animals as sentient since 1997, since it was a member of the European Union. This provision ended up in Article 13 of the Lisbon Treaty, which was the 2004 renewal-of-vows for EU countries. The UK already legislates for research animals on the assumption that they are sentient. Indeed, the system of checks, balances and ethical review is so finely tuned that lab animals are usually excluded from other laws.
As the UK left the EU it did not carry over the requirement to have ‘full regard’ for animal sentience, which campaigners argue is a relevant legal term that places greater constraints upon the government, although you’ll struggle to find that term in law outside of this specific issue. The government argued that the Animal Welfare Act 2006 (AWA) offered sufficient protections, but animal welfare groups disagreed, pointing out that the AWA is about the relationship between animals and individuals, not the government, and only mentions sentience in its guidance notes rather than the main legal text. They were also critical of the exemptions for research animals.
A media storm then erupted as the UK left the EU because the ruling Conservative Party was painted by the UK’s infamous gutter press as not believing that animals can feel pain.
The Conservatives, who both historically struggled with a reputation of being the ‘nasty party’ (this is ‘nasty’ by the UK definition by the way) and were also keen to show that leaving the EU was a good idea claimed that, free from the EU, the UK would be free to go ‘even further’ to protect animal sentience than a mere clause in a treaty. Suddenly, the UK was treated to a lot more footage of lead government minister Michael Gove and his dog and lo, a Sentience Bill was born.
This is where the problems started.
In order to regulate this issue, key terms first of all have to be defined. ‘Sentience’, for example, was a term originally coined by Western philosophers in the 1630s, and has corollaries in Eastern religions and retains the air of mysticism that warrants careful handling when used as the basis of government policy. Philosophers opining on sentience and consciousness continue to run the gamut from those who attribute these qualities to physical attributes, to those who think it will never be understood, the New Mysterians, and neither of these necessarily line up with what scientists have found.
Indeed, one doesn’t have to read much philosophy to start wondering whether it’s possible to reach any solid conclusions using logical reasoning, particularly if one’s initial assumptions aren’t based on scientific fact.
Instead, the Royal Society for the Prevention of Cruelty to Animals (RSPCA) has a working definition of ‘the capacity to experience positive and negative feelings such as pleasure, joy, pain and distress that matter to the individual’. It also held a one-day conference on the science of which animals might fit this description.
This is important because it had the potential to also address the next definition – ‘animal’ in order to know which animals could be sentient. Kingdom Animalia contains plenty of life-forms, in fact the majority, which are likely not sentient, including tapeworms, fruit flies and the tens of thousands of microscopic denizens of a bucket of seawater. ‘Animal’ is a technical distinction, and most animals simply aren’t sentient.
This is why the scope of the law must be defined to know what the government is responsible for delivering, but this requires an understanding of sentience and which animals it applies to (which as noted is nearly impossible to understand without a scientific basis).
Granting legal sentience also grants rights and those rights that will both need protecting and will inevitably clash with the rights of others – does a tapeworm now have a right to residence in your intestine? Is that the government’s problem? Is sentience now devalued to the point of meaninglessness? Can my kid take their bucket to the beach anymore?
In the Animal Welfare Act the scope of protected animals is confined to vertebrates
“as these are currently the only demonstrably sentient animals. However, section 1(3) makes provision for the appropriate national authority to extend the Act to cover invertebrates in the future if they are satisfied on the basis of scientific evidence that these too are capable of experiencing pain or suffering.”
However, in the Lisbon Treaty the scope is defined by sector and context:
“In formulating and implementing the Union’s agriculture, fisheries, transport, internal market, research and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the EU countries relating in particular to religious rites, cultural traditions and regional heritage.”
The UK government held a consultation on all of these issues in 2018 after it became apparent that none of the concepts involved were very straightforward. Stakeholders were asked to define terms such as ‘animals’, ‘sentience’, ‘animal welfare’ and ‘have regard to’. The Parliamentary committee that scrutinises the work of that part of the government noted a huge number of responses raising a huge number of issues covering the legal, moral, practical, conceptual and scientific aspects that needed to be considered. These have unsurprisingly dogged and delayed the drafting of a Parliamentary Bill ever since.
We may laugh at the tapeworm or bucket of seawater example, for instance, but 30% of consultation respondents were from a PETA campaign asking for the definition of animal to be “ all non-human vertebrate or invertebrate species” including microscopic foetal forms. Only 14% of respondents offered a ‘biological’ definition and 7% a taxonomic one. Legal definitions are at risk of being based not on science or reason but on the cast of the children’s movie ‘A Bug’s Life’.
Although a Bill was also previously proposed, it had to be split into two because, although the part about criminal sentences for animal abuse was straightforward, the part on ‘animal’ ‘sentience’ was anything but.
So what are they proposing this time?
On May 14 2021 they introduced a Bill via the House of Lords – proposed laws ping between this unelected upper chamber and the elected House of Commons to be scrutinised half a dozen times before they become law – and it’s potentially good news, potentially not.
The new Bill now avoids defining sentience altogether and the definition of ‘animal’ is any nonhuman vertebrate, plus anything that the Secretary of State for the Environment thinks should be on the list, so basically quite similar to the existing Animal Welfare Act plus a possible designation for some invertebrates, and not limited to sectors like fishing and farming. A new committee will be established to report on areas of interest where animal sentience may need to be considered more than it currently is. What’s lacking, as usual, is any statutory requirement for sentience of invertebrates to be proven scientifically, and instead it can be granted on a whim like an honorary title.
Depending on the focus of this committee any area of public life may come in for scrutiny, from slaughterhouses to pet shops to someone sitting fishing on the riverbank. If it turns its attention to animals in research, it’ll find a sector that’s already conscientiously and carefully regulated.
Time will tell whether its passage through Parliament warps the Bill into something worse, or how recommendations to a Secretary of State in the Environment, Food and Rural Affairs can be applied to areas that some other minister has responsibility for, but the new law does apply to ‘any government policy’.
Free of the issues that have dogged its progress in the past, this Bill might actually pass and might not get too badly mutilated by activist politicians. Yet, as with so many things, whether this move is positive for people and animals won’t be what they do, but the way that they do it.