Putting Sentience Back into Law

Today is World Animal Day, described by its present sponsor, Naturewatch Foundation, as “an international day of action for animal rights and welfare”, with the aim to “make the world a better place for all animals . . . a world where animals are always recognised as sentient beings.” Today is also the feast day of St Francis of Assisi who, in legend at least, saw and addressed sentience in all of nature – a noble over-estimate, if it is one at all. He is the patron saint of sentience.

St Francis 2

That term ‘sentient beings’ ought to be a tautology, but we know that in fact the truth in it needs constantly insisting upon, if we are indeed to re-make a world where so many human practices and interests have depended upon disregarding it. The formal recognition of animal sentience in law is therefore a most important and also a contentious achievement. That achievement is one that the UK government is now in the middle of attempting, with its Animal Welfare (Sentience) Bill – part of the government’s Action Plan for Animal Welfare (discussed in this blog on 1 June). The Bill was introduced in the House of Lords on 13 May, and first debated on 16 June. It was given more detailed attention in the committee stage on 6 July, and is now waiting to be further debated at the ‘report’ stage. When the House of Lords has finished debating and revising it, the Bill will start round again in the House of Commons.

It’s a very short document, consisting of just six clauses and essentially two themes: first, the concept or fact of sentience in animals, which was there in the European Union’s Lisbon Treaty but lost to UK law by Brexit; and second, the establishment of a permanent Animal Sentience Committee to alert the government to any effects which its policies may have on “the welfare needs of animals as sentient beings”. Still, this short bill has so far occupied the Lords for over eight hours of debate, with many more to come. It is evidently, then, a controversial proposal. Good, because that must mean that it really does imply change.

Of course most of the speakers in the House of Lords debates have expressly and willingly accepted that animals, vertebrate ones at least, are indeed sentient. They have said, what is quite true, that sentience is implicitly acknowledged in all British animal welfare law going back to the early nineteenth century. But I suspect that this emphasis on history, and its corollary that recognising sentience is nothing new, has a political sub-text: it keeps sentience within the traditional ethical context, where humans decide what duties they should feel towards animals. The Countryside Alliance, which has strong interests in the continuation of that ethical tradition, composed a ‘Briefing Note’ for their Lordships before the debates, in which the point is clearly made: “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 therefore, as Baroness Mallalieu said in the House, the introduction of the term into law, though unobjectionable, “is strictly unnecessary”. The Baroness is (as indeed she made clear) president of the Countryside Alliance and herself a farmer, representing then a complex of interests in keeping things as they have been.

So does the formal acknowledgement of sentience in law represent a threat to traditional practices? I feel sure that it does. One of the familiar features of debates like these in the House of Lords is the ‘nation of animal-lovers’ trope. Lord Benyon, the minister who introduced the bill (thank-you to him), said “I am proud, as I hope your Lordships are, of the UK’s reputation as a nation of animal-lovers.” Lord Trees spoke of “our proud history of protecting animal welfare”. It’s what we are and choose to do, you see, and what we therefore take credit for. But the focus on sentience re-locates the ethic; it becomes something in the animal that demands certain conduct from us. As the Countryside Alliance tacitly fears, it moves ethics along the welfare-rights axis in the rights direction.

Moreover, once out of our hands, there’s no telling what the revised ethic may require of us. One speaker feared, perhaps facetiously, that we might be told that worms have sentience. Others were concerned with the more immediate threat to ‘country sports’, shooting and fishing; in fact one of the amendments proposed during committee stage was to add birds and fishes to the single excepted species in the Bill’s working definition of ‘sentient animal’ (“any vertebrate other than homo sapiens”).

The Animal Welfare (Sentience) Bill foresees that the Secretary of State, so far from excepting species like fishes and birds, may probably wish to add species into its definition of sentient animal. Several speakers in the debates asked that cephalopods and decapod crustaceans be included now, rather than later. After all, the government has had an expert report on the sentience of these animals awaiting its attention since December 2020, and this seems sure to be affirmative. In this connection, some of their Lordships (‘lordships’ seems to be a collective term that includes females), fear that the sentience test, so crucial to the Bill, will undesirably turn the status of animals into an aspect of research science rather than a democratic ethical decision. For it will be scientists, not ministers or MPs, who decide how sentient particular animals are, though ministers will have to endorse or reject the science.

There’s surely some merit in that warning, but anyway sentience cannot be regarded as a complete foundation for animal or any other ethics. It confines the question to pain and pleasure, but life itself is a value, in worms as in all other cases, and also an implicit right once entered into – hence Professor Tom Regan’s philosophy that imputes rights to whatever can be said to be ‘subjects-of-a-life’. Still, we’re talking now about law, which never is or pretends to be the sum of morality.

Then there’s the Animal Sentience Committee, the primary purpose and innovation of the Bill. It will be a permanent and independent committee, free to scrutinize policy, whether extant or in preparation, right across government: “there are no policy exemptions”, says Lord Benyon, and “we want them to decide what issues they should look at.” (In this and other respects, the Bill is a good deal more demanding and more comprehensive than the Lisbon Treaty.) The committee’s duty will be to make sure that ministers have paid “all due regard” to sentient animals, to report on problematic instances, and to receive a response within a period of three months. In theory, then, this committee will at last formally incorporate the interests of animals (officially sentient animals, at least) in the political process, surviving changes of administration and developing its own values as it goes.

The Bill does not specify the membership of the committee, only that the Secretary of State will appoint it. But some of their Lordships seem to have a pretty clear idea of how it’s likely to behave. It will, as they variously picture it, go “roaring off” into government business “like a bolting horse”, “bossing everybody about”, “going round summoning ministers”, and generally “roaming about” Whitehall, until “we all have to discuss animal welfare the whole time and it becomes impermissible not to discuss it every time a Bill comes up.” The committee is not required, as the Lisbon Treaty does require its EU nations, to make allowances for religious and other traditional practices (though of course the minister in the case can and no doubt will do so). It might, some suggested, interfere in foreign relations, finding fault with the treatment of animals in countries which the UK trades with or in other ways has policies towards. It might even (widespread alarm at the idea) direct its baleful attention towards the use of animals in science, interfering in the administration of the 1986 Act which regulates that arena of exploitation.

Well, as to all that, if only! But it must be recalled that the minister referenced in any report published by the Animal Sentience Committee (which can indeed publish as it “thinks appropriate”) has only to “lay a response . . . before Parliament”; he or she will not have to take the committee’s advice. In fact the Green Party’s Baroness Jones predicted that the response of such ministers would “in practice be little more than listing the reasons why they are ignoring the committee.” The committee’s existence might even have the effect of relieving ministers of the necessity to think about such aspects of policy themselves, letting them fall out of the democratic process altogether. “This Bill”, she said, “is the Government pretending to do something about animal sentience.” She summed it up as “a disaster”.

An empty show, then? Or (as the Countryside Alliance fears) a “Trojan horse” sneaking “extreme animal rights activists and environmentalists” into the citadel of government? I believe that even as a PR enterprise the Act would be making a valuable point, but in practice the Sentience Committee would surely make certain it was much more than that. Of course the Bill may not survive its passage through Parliament. After all, one of the amendments proposed on 6 July was the deleting of its first clause, the one which creates the committee, which is as much as to say deleting of the Bill. However, we must hope for a better result.

You may have seen that the government has now published a response to the recent consultation about relaxing controls over the genetic editing of farm crops and animals (another Brexit dividend: see this blog for 14 March). The announced intention is to relax restrictions in the case of plants, but to leave the animals fully protected for the time being. Now there’s a case for the Animal Sentience Committee when the question comes round again, as it eventually will. Let’s hope that by then that troop of animal activists and environmentalists will be out of the wooden horse and ready for battle!

Notes and references:

The text of the Animal Welfare (Sentience) Bill can be read here: https://publications.parliament.uk/pa/bills/lbill/58-02/004/5802004_en_2.html#pb1-l1g1

The second reading in the House of Lords (the first being simply the notice given of the Bill’s existence) is reported in Hansard here: https://hansard.parliament.uk/lords/2021-06-16/debates/81851658-6B9F-4739-8199-22398F81085F/Debate  The committee stage is reported here: https://hansard.parliament.uk/lords/2021-07-06/debates/B8CBC730-DC86-4D6C-B915-C145CF158B80/Debate  Note that the committee stage is the point at which definite amendments are proposed, but some of them (like excepting birds and fishes from the category ‘animal’, or dropping clause 1) are ‘probing amendments’, aimed at highlighting a concern rather than actually making the changes specified. Although the debates brought out strong feeling on both sides of the argument, not very many members were present, even allowing for those who participated online.

The Countryside Alliance’s responses, as quoted, appear in a Briefing Note https://www.countryside-alliance.org/getattachment/News/2021/5/Animal-Welfare-Sentience-Bill-2021/Animal-Welfare-Sentience-Bill-Second-Reading-Brief-Lords-160621.pdf?lang=en-GB and on the web-site here: https://www.countryside-alliance.org/news/2021/5/animal-welfare-sentience-bill-2021  These are actually quite measured though wary accounts of the matter.

The government’s announcement on the subject of genetically edited plants and animals is published here: https://www.gov.uk/government/consultations/genetic-technologies-regulation/outcome/genetic-technologies-regulation-government-response  The subject was treated in this blog here: https://voiceforethicalresearchatoxford.wordpress.com/2021/03/14/the-grand-old-craft-of-gene-editing-a-consultation/

The illustration shows St Francis preaching to the birds, a detail from the fresco of latish 13th century by the anonymous artist referred to as the Master of St Francis (in the public domain). St Francis has been spoken of in this blog here https://voiceforethicalresearchatoxford.wordpress.com/2018/10/02/two-anniversaries-one-lesson/

and here https://voiceforethicalresearchatoxford.wordpress.com/2019/10/04/franciscan-medicine/

No Duty More Imperative upon the House

Finally a bill has come before the UK Parliament which expressly recognizes animals as “sentient beings”. The concept – or rather, fact – had been established in European Union law by the Lisbon Treaty of 2009, and therefore was a part of what was lost with Brexit. Now it’s been re-introduced in the Animal Welfare (Sentience) Bill, published earlier this month and due to be debated first in the House of Lords on 16 June.

Of course the acknowledgement of sentience in other animals has been implicit in animal welfare law from the beginning and yet apparently thought compatible with such glaring maltreatment over the years as vivisection and factory farming. Nor did putting the idea into the open in the Lisbon Treaty seem to do animals themselves much good. Still, the new proposal does (or may) take the matter a good deal further. Its long title is ‘A Bill to make provision for an Animal Sentience Committee with functions relating to the effect of government policy on the welfare of animals as sentient beings’. This committee is to be a permanent institution, watching for, and publishing reports on, any government policy, planned or being put into effect, which the Committee considers “might have an adverse effect on the welfare of animals as sentient beings.” To any such report, the government is required to respond within three months, and then to pay “all due regard” to its recommendations “in any further formulation or implementation of the policy”.

Section 5 of the Bill, titled ‘Interpretation’, defines the word animal (“any vertebrate other than homo sapiens, though invertebrate species may subsequently be added) and also vertebrate itself, but not the word due (so we won’t know how much regard is required), nor the key word sentience. But this last word is anyway being continually enriched with meaning, and the Bill will presumably have to grow with it. For instance, since 2016 there’s been an excellent peer-reviewed journal devoted to the subject and titled Animal Sentience, and the London School of Economics recently announced a five-year project of research on ‘the Foundations of Animal Sentience’. Even the trendy habit of using the short form ‘ASent’ is probably a promising sign of growth. As the LSE says, “In recent years, an interdisciplinary community of animal sentience researchers . . . has begun to emerge.”

Although there’s something dismal about the phrase “interdisciplinary community”, the thing itself must be good in this case; I’ve yet to come across research which shows any species of animal less sentient than previously thought. And the really significant advance represented by the Bill is that the interests of these sentient animals will have to be taken into account across all government activity, whether existing law covers them or not. In conservation matters, for instance, not just net gains and losses of various animals will have to be considered, but the felt harms or benefits involved for them. There’s a genuine moral advance here, supposing it’s properly applied.

The Animal Welfare (Sentience) Bill is part of the UK government’s larger Action Plan for Animal Welfare (note the cute initials: can it have been intentional?). The Plan includes various other promises, including an end to exporting of live farm animals, better labelling of animal-derived products, better protection for “sporting animals” (a curious expression), an end to the keeping of primates as pets, and many other improvements. Some of these are already in hand: higher sentences for cruelty to animals will come into effect on 29 June. Other promises are noticeably tentative. As to a ban on the importation of all and any animal furs, for instance: “we will explore potential action in this area” (I count three put-offs in that sentence). Animals in research get a bit of both, the promise essentially being to stand still, or “continue to commit to maintaining high standards of protection”.

The Secretary of State responsible for the Action Plan is George Eustice, who made the Plan public on 12 May during a visit to the Battersea Dogs and Cats Home. He began his speech there with the inevitable words “We are a nation of animal lovers.” The familiar boast (critiqued elsewhere in this blog) is not well-evidenced by that chosen setting, a poignant asylum in South London for abandoned pets, but at least there’s more to it than patriotism on this occasion. The Action Plan expresses several times the intention to “take the rest of the world with us” in setting higher standards of animal welfare, and to make that intention felt in trade and other international dealings. I’d say that the phrase “animal lovers”, especially without a hyphen, is more likely to raise a foreign smirk than do much persuading. In a parliamentary speech which George Eustice made in 2018 during a debate on the testing of cosmetics, he spoke in similarly sentimental terms: “Animal welfare is dear to my heart, and dear to all our hearts.” Let’s hope that the UK’s “international advocacy on animal welfare” will be put across with more ethical force.

In George Eustice’s introduction to the Action Plan, the ‘nation of animal-lovers’ claim is supported with a reference to the world’s first law for the protection of animals, the Cruel Treatment of Cattle Act of 1822. That law was certainly a momentous achievement: as one MP said at the time, it “consecrated the principle, that animals ought to be protected by legislative interference.” But it can’t be seen as a typical product of the national character. It followed a series of thwarted attempts to persuade Parliament to do something for animals, and was itself followed by similarly defeated bills aimed at extending its protections to other domesticated animals. The Act’s sponsor, Richard Martin (incidentally an Irishman, MP for Galway), was a stubborn and pugnacious personality; he really did have ethical force. His face shows as much (see below) – the stubbornness and force at least. Without them he surely wouldn’t have been able to bring his 1822 Bill through to success.

Martin's Act trial

The primary means of opposition in the House of Commons was that most destructive of its weapons, ridicule. Reports of the debates on the Bill, and on the various amendments to widen and enforce its measures which Martin tried to introduce in the following years, are punctuated with “laughter”, “loud laughter”, “noise and laughter”. MPs would ask him why he didn’t include other species, whose mere mention they thought would tend to bring his project into contempt and ridicule: asses, hares, cats, rats, lobsters. Something of the attitude is suggested in a contemporary painting which imagines a donkey giving evidence in court of offences against the 1822 Act committed by his master (the young man to his left, cocking a snook). The title was The Trial of Bill Burn, under Martin’s Act, and it illustrated a comic song of the period on that theme: “If I had a donkey wot wouldn’t go / D’ye think I’d wollop him? No, no, no!” I read those repeated no’s as sarcastic, but at any rate the picture (shown here reproduced in a print) has everyone except the principals enjoying a good laugh.

Sometimes Martin spoke angrily about this hilarity and the “invidious sarcasms” thrown at his proposals: “The learned gentleman may laugh,” a parliamentary report has him saying to the Attorney General, “and no doubt he considered him and his case as a fit subject for ridicule, but he could tell him it was not a matter of ridicule elsewhere.” But he was never punctured. He was witty himself, and could turn the jokes his own way. When Martin was trying to have bull-baiting and cock-fighting prohibited, the Home Secretary, Robert Peel, argued that upper class field sports were just as ‘cruel’ (implying that nobody would think of putting them down); good, replied Martin, then they too should be banned, and “he did, therefore, call on the Home Secretary to do so, and to begin the salutary reformation by recommending to the King, whose adviser he was, to put down the royal hunt, and dismiss the royal stag-hounds.”

At other times, Martin would check the frivolity of MPs by giving them instances of the cruelty and barbarity which he had seen or been told of. One of these concerned the physiological lectures then being given in London by the French professor Francois Magendie, involving “most horrid and most wanton” experiments on dogs. This attack on a distinguished visitor caused some indignation, and Martin was told anyway that he’d got the facts wrong. His answer was reported thus: “he knew that what was spoken in that House was privileged from the action of libel; but he desired, in order to decide the real merits of the question, that such an action might be brought, and with the view of enabling professor Magendie to commence the action, and to obtain evidence to support it, he had gone down that day to St Bartholomew’s hospital, and had there repeated the statement, as nearly as possible in the terms in which he had before made it in that House.”

It was a characteristic performance. In 1824, Martin wanted to amend the Cruel Treatment of Cattle Act so as to authorize members of the public actively to apprehend a person seen ill-treating an animal, rather than just reporting them. It was Martin’s own habit to do so, and that same Attorney-General spoke in the House against the proposal thus: “He knew from the zeal which the hon. Member had heretofore displayed in the cause of humanity, that not a week would elapse before he would be forced into some desperate conflict in attempting to enforce the law.”

Martin was nick-named ‘Humanity Dick’, and it needs adding that his ‘humanity’ was not solely directed towards the welfare of non-human animals. Human distresses, including slavery and the sufferings of debtors, engaged his energies too. It seems that he sometimes paid the fines of those whom he had brought into the courts under his Cruel Treatment of Cattle Act. After all, the punishment of individuals was incidental; what he aimed at was a change of attitude and practice. And in fact that change, so a fellow-MP could say already in 1825, “might be seen in every market in London.”

Richard Martin

In 1826, Martin’s own debts obliged him to take refuge in France, where he remained for the last years of his life. He wasn’t a saint-like man. I can find no talk from him about loving animals or any other such touching rhetoric. But there was blatant abuse of animals in the streets and the cattle markets of Britain, and he persuaded the state that it should take notice and action. He wasn’t able to build on that success himself, but the principle was established. He encountered all those improvised objections, in their earliest vigour, that we still hear in their antiquity (being now employed, for instance, against legislating for sentience): it’s impossible to administer such laws; there are other more important laws to deal with first; they’ll hurt the poor; where will it stop (with cats, oysters, insects?); a different set of animals is more deserving (i.e. put it off); and of course ridicule. Martin faced all these down, and after those few years of harassing Parliament on this subject, his achievement is reflected in this momentous statement reported in the speech of another MP, John Maxwell: “There was no duty, he [Maxwell] conceived, more imperative upon the House than that of affording protection to animals.”

Astonishing to see that being said nearly 200 years ago! And correspondingly puzzling and dismaying that there is still so much to do. At any rate, now is a good moment (George Eustice was right in this) to recall and feel gratitude towards the man who forced a reluctant nation to make a start – not on loving animals, fine and proper as that may well be, but on treating their feelings and interests with the respect due to those of all sentient beings.

Notes and references:

The text of the Animal Welfare (Sentience) Bill (it’s very short) can be found here: https://bills.parliament.uk/bills/2867  The Action Plan for Animal Welfare is here: https://www.gov.uk/government/publications/action-plan-for-animal-welfare/action-plan-for-animal-welfare

The LSE’s sentience research project is announced here: https://www.lse.ac.uk/cpnss/research/ASENT

The 2018 cosmetics debate is reported in Hansard’s parliamentary records here: https://hansard.parliament.uk/commons/2018-05-01/debates/7F5EB22D-EA66-4F29-8A8E-339DDF7093BE/CosmeticsTestingOnAnimals The quotations from speeches made in debates in which Richard Martin was involved between 1821 and 1826 are reported in Hansard and linked here: https://api.parliament.uk/historic-hansard/people/mr-richard-martin-1/index.html

The post in this blog which discusses the phrase and notion ‘animal-lover’ is here: https://voiceforethicalresearchatoxford.wordpress.com/2018/08/20/love-talk/

Apart from online material, there are good accounts of the life and character of Richard Martin in E.S.Turner’s excellent All Heaven in a Rage (Michael Joseph, 1964) and in the Oxford Dictionary of National Biography (OUP, 2004, also online), whose entry on Martin is written by Richard Ryder.

The portrait of Richard Martin is a print from a painting in the collection of the RSPCA, of which (as the SPCA) Martin himself was one of the founding members in 1824. The aquatint from a painting, Trial of Bill Burn, was apparently made in the late 1830s. More details about it, including a version of the song from which the quotation above is taken, can be found online here: https://www.georgeglazer.com/wpmain/product/history-law-animal-rights-trial-antique-print-london-mid-19th-century/