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/

Let My People Go! Animals and the Law

Last week, BBC Radio 4’s legal affairs programme Unreliable Evidence, in its 47th episode, finally got round to the non-human animals. Given the numbers of these animals, vastly greater than the human population, and their vulnerability (a key concept in law) to cruel and fatal interferences by humans, this figure 47 is itself suggestive of the law’s complacent speciesism. However, the presenter, Clive Anderson, conceded at the start that animals “suffer in much the same way as we do”, and he invited four lawyers practising in this area to say whether the law was doing enough to recognize and address this fact.

Two of the lawyers act for organisations that promote field sports, farming, and other varieties of animal-use (the Countryside Alliance and the Country Land and Business Association). Naturally enough, then, they approve of the present law, based as it is on the principle that animals should be protected only from “unnecessary” suffering – that is, suffering which isn’t “proportionate to the purpose” to which humans are lawfully putting them (quotations from the Animal Welfare Act 2006). In such law, animals have no rights of their own; the question is only how absolute the rights of human beings over them shall be. “The idea that animals have a right to liberty”, said Jamie primate-psychology-brain-animal-experimentation-picture-1Foster, the lawyer from Countryside Alliance, “is fundamentally absurd”. Besides (he added, straying for his supporting evidence into Buddhist philosophy), “all life is suffering.”

The other two lawyers argued for a radical change in the law’s thinking: it should start conceding, to non-human animals, rights that are founded on their own interests, rather than simply reliefs from the more unreasonably demanding interests of humans. One of these two, Steven Wise, described the desired change for animals as a move from among “the things of the world” into their proper company among “the persons of the world”, and he is even now trying to achieve this change for chimpanzees, in the courts of the United States. His voice was coming to the programme by telephone from the U.S.A., and it had something of the feel of a voice from the future. In fact when Clive Anderson wound up the discussion by asking him whether we might really be going to see chimpanzees and other animals winning, through the courts, that ‘right to liberty’ which Foster had ridiculed on their behalf, Wise’s voice enthusiastically replied “It’ll come! It’ll come!”

Two of the four chimpanzees which Wise is at present representing in the courts are called Hercules and Leo. They ‘belong’ to the University of Louisiana, but have been on loan (for one does lend “things”) to Stony Brook University for research purposes. The “proportionate” suffering of Hercules and Leo in that institution has consisted, during a period of six years, in repeated operations to insert electrodes into their muscles in pursuit of anatomical knowledge about early human locomotion. More essentially their suffering has involved near-solitary confinement throughout these years, and it’s this imprisonment which Wise has been asking the New York Supreme Court to declare unlawful. (Incidentally, the chimpanzees have recently been moved out of the New York jurisdiction and back to incarceration at the New Iberia Research Center in Louisiana, perhaps with a view to frustrating Wise’s case. His proposed destination for them is the Project Chimps sanctuary in Fannin County, Georgia.)

In statutory law, American or British, such imprisonment for non-humans is of course wholly permissible. They have no presumed right to liberty – rather the reverse, as Mr Foster confirms in the quoted comment. The claim for Hercules and Leo is therefore founded in so-called common law, whose terms of reference are much wider and more liberal. They do not only consist in a body of case-law – decisions and reasonings recorded in previous cases. They consist also in general principles of equity, derived from what the nineteenth-century American judge Lemuel Shaw summarized as reason, natural justice, and enlightened public policy, modified and adapted to the circumstances of all the particular cases which fall within it.” “Natural justice and enlightened public policy”: animals might well hope that their claims to liberty would not seem “absurd” in such contexts. And the crucial instrument of liberation in the common law is the writ of habeas corpus, by which a person being detained by private or public force, or others acting on his behalf, may petition the courts to declare the detention unlawful. (The phrase habeas corpus means ‘produce the body’ – i.e. the writ directs the captor to bring their prisoner into court, at least figuratively, and show reason for the situation.)

It is with a writ of habeas corpus, then, that Steven Wise is even now before the courts on behalf of Hercules and Leo. And his key supporting reference is the decision made at Westminster in 1772 by Lord Chief Justice Mansfield in the case Somerset versus Stewart. Charles Stewart ‘owned’ a slave, James Somerset, whom he brought with him on a trip to England in 1771. Having made a break for freedom, Somerset was recaptured and chained up ready for return to Jamaica. But a writ of habeas corpus was issued on his behalf by a group of London citizens, and Lord Mansfield determined that Somerset’s slavery was “so odious” that the common law could not countenance it. Effectively he made slavery illegal in Britain on the grounds that it was morally objectionable, the very reason for which you or I might even then (we hope) have deplored it, and for which we certainly ought to do so now.

There was no precedent in law for Lord Mansfield’s decision; there was, indeed, a strong presumption against it, urgently represented to him by Stewart’s counsel in court. But as Steven Wise said to the Supreme Court of New York last year, speaking of Lord Mansfield and hoping to instil in the court something of that man’s independence and courage, “one of the reasons he’s such a great judge is that he understood that there’s a first time for everything.”

The writ of habeas corpus is the best hope for the unjustly imprisoned, and therefore pre-eminently for the slave. It must also then be the best hope for the non-human animal, because, so Wise re-iterated during the radio discussion, our relation to other animals at present is exactly a master-slave relation. Jamie Foster objected to this “constant use of the word slavery, on the curiously pre-Darwinian grounds that “it’s offensive to anyone who comes from any population that ever was enslaved to suggest it’s simply another version of the same thing.” He thereby illustrated the advocate’s maxim that you should never put a point to a witness which you don’t already know his or her answer to. Wise’s reply came back from America, “My people were enslaved by Pharaoh a long time ago, and I understand it.” 

It is a part of Steven Wise’s case in the American courts to show, through the testimony of stevewise-tekoexperts in chimpanzee mind and culture, that Hercules, Leo, and the others have what he calls ‘autonomy’, and it is upon this autonomy that he bases their title to legal personhood: “They are self-conscious,” he told the New York court; “they have a theory of mind. They can understand what others are thinking. They understand that they are individuals, that they existed yesterday, that they are going to exist tomorrow, that their lives mean something to them. They plan what their life is going to be like.” This sort of autonomy is not, of course, something that can be claimed for all other species of animal, although it very likely can be said of the elephants, orcas, and African parrots, who are next on Wise’s list of proposed clients. Therefore it’s true what his fellow animal-rights lawyer on the programme, David Thomas, pointed out: the Nonhuman Rights Project (NhRP) which Wise has founded to promote and staff the legal campaign seems likely to help only a few animal species, if perhaps many individuals.

However, Steven Wise argued that although ‘autonomy’ was a sufficient condition for personhood in law of the sort he was seeking to establish, it was not a necessary condition: “We don’t know what other sufficient conditions may exist.” He hoped and expected the common law to proceed case by case, conceding rights to such fundamental interests as could be shown by science and reason to exist in any other species. On the NhRP web-site he again quotes Lord Mansfield: “The common law is a step-by-step process that, in Mansfield’s words, ceaselessly ‘works itself pure’. It rights the most egregious wrongs first. Then it turns to the harder questions.” Besides, once the breach in legal personhood is made, and lets in even one non-human species, or a single non-human animal, our collective assumptions about the human relation to other animals must be transformed. It’s indeed this fact which must explain the angry hostility and near-irrational alarm which the NhRP seems to evoke, in the courts and in such airings as the BBC discussion. We are seeing, in fact, a most interesting reprise of the sort of indignation which Charles Darwin’s science encountered about a century and a half ago. And that, I suppose, is because we’re at last beginning to appreciate what that science implies, morally and socially, and to act upon it.  Unlocking The Cage - Synopsis Image

But isn’t all this court-bothering “a very long-winded way of going about it?” asked the fourth of the lawyers, essentially putting that familiar objection ‘why not start somewhere else?’ (i.e. ‘Why not go away?’) And he added helpfully, “there are other ways of making things better for animals.” Good; then let’s get on with those other ways too, and meanwhile celebrate Steven Wise and his fellow-workers at the Nonhuman Rights Project for their heroic attempt upon the antiquated and ignorant human-freemasonry of the law. Certainly there’s a very long story ahead, but as Wise says in the documentary film Unlocking the Cage“It’s time to begin.”

References:

The episode of Unreliable Evidence can be heard again at http://www.bbc.co.uk/programmes/b07qbcbq.

The quotation from Judge Shaw is from Steven Wise, Rattling the Cage, Profile Books 2000 (p.90), published in the U.S.A. by Perseus Books (1999). The Nonhuman Rights Project web-site is at http://www.nonhumanrightsproject.org/ , where you can find the transcript of the case recently heard in the New York Supreme Court, and other details of past and pending cases.

The film Unlocking the Cage was released earlier this year. A trailer and other details for it can be viewed at http://www.unlockingthecagethefilm.com/ .The still of Steve Wise with Teko, and the poster for the film, are by courtesy of Pennebaker Hegedus Films.

The photograph of caged mother and child is by Brian Gunn, copyright IAAPFA.