Pre-Legislative Scrutiny of the draft Animal Welfare (Sentencing and Recognition of Sentience) Bill 2017 Contents

3Clause 1 of the Bill: Recognition of animal sentience

20.If Clause 2 of this Bill is relatively unproblematic in its objectives and drafting, the same cannot be said for Clause 1 - “the animal sentience clause”. According to the Secretary of State, this Clause “will embed the principle that animals are sentient beings, capable of feeling pain and pleasure, more clearly than ever before in domestic law” and “contains an obligation, directed towards Government, to pay regard to the welfare needs of animals when formulating and implementing government policy.”23

21.More precisely, Clause 1 of the draft Bill requires “Ministers of the Crown [to] have regard to the welfare needs of animals as sentient beings in formulating and implementing government policy”24 while also having “regard to matters affecting the public interest”.25

22.As we have noted above, this Clause is in many ways unfinished. Almost all of the concepts within it are undefined and the Government, apparently unwilling to set out its own view, is consulting on the exact definition of key elements of the clause, such as the meaning of “animal” or “have regard to”.26 As a result, the exact effects of this Clause are unclear. We will therefore limit our remarks to the Clause as currently drafted. We commend the transcript of our session of 17 January to the Government in the anticipation that it will help inform the ongoing consultation and help provide definition to some of these legal concepts.

Background to the introduction of Clause 1

23.The Explanatory Memoranda published alongside the draft Bill makes reference to “the Government’s commitment to ensuring animals will not lose any recognitions or protections once the UK leaves the EU.” This refers primarily to Article 13 of the Treaty for the Function of the European Union (“Lisbon Treaty”). Article 13 requires the EU and the Member States “when formulating and implementing … policies [in stated areas27] … [to] pay full regard to the welfare requirements of animals”.28 While Article 13 imposes binding obligations on Member States of the EU:

in practice, it has not had any effect on the Governments of member states, for the simple reason that the provision is limited to particular policy areas that are cited in Article 13 and, by definition, policy on those issues is decided at an EU level. The only impact it has had in practical terms is at an EU level.29

24.Clause 1 of this Bill attempts the same general objective as that of Article 13 of the Lisbon Treaty and will, in practical terms, transpose the provisions of Article 13 into UK law.30 In some ways, though, in can be said to go further since it will apply to all animals, not just those animals used in the specified policy areas in Article 13.31

25.Later in our report we will discuss the weaknesses and failings of Clause 1 as drafted. Despite this, the idea and intention behind the clause received strong support. According to our witnesses, Clause 1 is a “critically important point of principle” which would be “a strong message”32 While - as we discuss - its legal implications may be limited, Clause 1 (or something close to it) is a politically significant step.

Clause 1, as drafted

26.Our witnesses were supportive of the principle behind Clause 1 of the draft Bill, namely that animals are sentient and their rights should be considered by the Government when formulating and implementing policy. The concerns we heard addressed the ambiguity of the legislation and its potential practical effects.

27.At a fundamental level, it was noted that the “symbolic” intention behind the Bill, to reinforce that the Government recognises sentience in (some) animals was probably unnecessary. According to Mike Radford, Reader in Animal Welfare law at the University of Aberdeen:

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.33

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.”34

28.Many other criticisms of Clause 1 of the draft Bill were made to us, chiefly around its scope and accountability mechanisms. We present a selection of these below as indicative of the general concerns heard. Many others were raised with us. We acknowledge that the Government consultation exercise is intended to help clarify some of these issues. We trust that the transcript of our session will therefore be of use to the Government in informing the amendment of this Bill.

29.The main concern raised with us was Clause 1’s vagueness and ambiguity; it introduces a degree of legal unpredictably. As drafted, almost any Government policy or announcement (or non-policy and non-announcement) will be open to judicial review to determine whether sufficient, but ill-determined “regard” had been given to the welfare needs of animals.35 In practice therefore, swathes of Government policy-making will be thrown on to the courts to adjudicate, with all the consequent problems that would bring.36

30.The practical problems of this approach were set out for us by Sir Stephen Laws: since it is not clear to what degree Ministers should “have regard to” animal welfare needs, and not specified how this will be demonstrated, “it makes it impossible in practical terms for Government to make any reasonable prediction on whether its policies and other actions will survive judicial challenge”.37 In a similar vein, Mike Radford told us that

one of the problems here is that it [Clause 1] is so vague that nobody will be sure what it means. The animal welfare organisations will not be sure, and policy makers will not be sure. Therefore, it will ultimately fall to the courts.38

The RSPCA similarly worried that:

the key issue is that there has to be a mechanism in place for implementing this in a clear, fair and transparent way, and a mechanism for reporting and accountability under this legislation, because as we all know that was one of the failings of article 13.39

Mike Webb of Battersea Dogs and Cats Home shared the concern that the problems with Clause 1 of the Bill would impede the introduction of the necessary measures in Clause 2, stating “clause 1(2) is at best as unhelpful as it is helpful”. Mr Webb went on to share his surprise “to be honest, to discover that clauses 1 and 2, as they currently stand, appear in the same Bill at the same time” and his concern that the measures in Clause 2 “be delayed in the event that there are overwhelming concerns with the other parts of the Bill”.40

Practical consequences of Clause 1

31.The concerns we had heard of the effects of the draft Clause 1 were troubling. We pushed our witnesses for more indication over what the practical problems of this approach would be.

32.It was repeatedly stated that the most obvious consequence of this Clause as drafted would be to increase the cost of, and hinder the efficiency of, government. At the very least, we were told that there would be a need for Defra to be given greater resources to effectively “sign off” any other Department’s policy proposals on animal welfare grounds and/or prove that animal welfare had been given “regard”.41 In addition, there would be the greater cost of proving to the courts that the provisions of this legislation had been complied with:

The potential for litigation is expensive, timeconsuming and it consumes resources. Frankly, it is not a particularly good use of resources.42

33.A more abstract and harder to quantify cost was also mentioned to us. This was the cost arising from decisions not taking or reforms not made. We were told that Clause 1, as drafted, would have a “chilling” effect on policy-making:

imposing obligations that direct policy has the disadvantage that it persuades people [policy makers] to try to be compliant rather than to decide in advance what is a good idea and to exercise judgment. Compliance becomes a substitute for judgment … people then go for the safe option.43

34.In a similar vein, as well as Clause 1 causing decisions or actions not to be taken or rejected as “non-compliant”, greater use of the Courts to adjudicate whether a policy is compliant with this legislation will tend to impede the work of Government and prevent legislative change. Sir Stephen Laws cautioned us:

You have to think about what judicial review is good at doing. What it is best at doing is stopping change. That is what it is good at. It is not very good at producing change, but it is very good at delaying it and stopping it.44

Sir Stephen Laws went on to note that this process of “stopping change” would impact across all areas of Government policy, not just areas concerned with “animal welfare”. Indeed, he went further suggesting that:

the impact of this provision is less likely to be significant in relation to those matters where animal welfare clearly is the issue, because it is unlikely that, where animal welfare is the issue, Ministers will not be able to show they have had proper regard to it. The main, and in my view mischievous, impact of this is where it has an impact on things that are peripheral to animal welfare. It provides a handle for challenging other decisions.45

35.It was made clear to us by our witnesses that the scope of Clause 1, as drafted, would apply to all areas of Government activity and encompass not only legislative change, but all policy announcements and non-announcements. A decision not to take action would be just as liable to challenge under Clause 1 of this Bill as a decision to act, while seemingly irrelevant Government decisions such as levels of local authority funding or the Budget could be potentially challenged in the Courts on whether sufficient “regard” had been given to animal welfare needs.46

Models for Government accountability

36.Many of the difficulties encountered with Clause 1 of this Bill stem from the lack of specificity in how the Government will be held accountable. As the Clause is currently drafted, the courts will be asked to rule - through a judicial review - whether any Government policy has been formulated or implemented with “regard to” animal welfare needs. As we noted above, this has many detrimental consequences: it will not be clear whether any Government policy is “legal” (and compliant with the legislation) unless and until a court action is brought against it, legislative change will become harder to bring forward and the overall cost and complexity of policy-making in Government will increase.

37.One option to remedy this may be to introduce alternative accountability mechanisms and thereby clarify how a Government Minister will demonstrate compliance (or non-compliance) with the legislation.

38.A suggestion put to us was the idea of an “animal welfare impact assessment”. While it was acknowledged that this in itself would not prevent numerous and perhaps vexatious claims for judicial review, it was put forward as a mechanism by which the Government could demonstrate that it has assessed and “had regard to” the animal welfare needs of a given policy proposal.47 As such it would prevent successful legal challenges by acting as proof of compliance.

39.Whilst examining the legal consequences of Clause 1, as drafted, we noted that this was not the first time Parliament had wanted to legislate on an area where Ministerial compliance was hard to define. Indeed, our expert witnesses highlighted legislation that had been drafted to achieve this whilst preventing the likelihood of judicial challenge in the first instance.48

40.The Fiscal Responsibility Act 2010 (FRA 2010) was similar to this draft Bill in being a piece of legislation intended to reinforce policy commitments by statute. The major difference between the FRA and this Bill, however, was in its accountability mechanisms. While the Fiscal Responsibility Act imposed a duty on Ministers, it did not impose a general duty on them. Instead, it specified that Ministers were only accountable through a reporting mechanism to Parliament, rather than through the courts. As such a judicial review could not - except in exceptional cases - be brought against Ministers for non-compliance with the legislation.49

41.It was argued that, if a similar mechanism were adopted into this legislation, then in addition to clarifying the roles of Parliament and the judiciary in holding the Government to account - and clarifying to Ministers how to demonstrate compliance with the legislation - animal welfare might more readily be improved:

[as the Bill is currently drafted] the duty on the Minister is to have regard to both [animal welfare and the public interest]. What weight a Minister gives is entirely up to them. You could go through all this, the Minister could have regard to it, and it may make no difference whatsoever, whereas a system in which Ministers have to come back to Parliament, or indeed to this Committee, and explain how they have taken welfare considerations into account may be a much more effective mechanism.50

Existing inconsistencies

42.As well as not introducing clear accountability mechanisms and clarifying how Ministers will (or will not) be compliant with this legislation, Clause 1 was also criticised by some of our witnesses for its timidity and its limited scope. At present, the Bill does not define “animal” for the purpose of defining “animals as sentient beings”. Without such a definition, it is not clear which creatures Government Ministers should “have regard to”.

43.The Animal Welfare Act 2006 gives a definition of “animal” as a “vertebrate other than man” and explicitly excludes creatures in their foetal or embryonic form. In addition, the provisions of that Act only apply to “protected animals” who are, generally, domesticated, i.e. dogs or cats, whether stray or not are classed as “animals”, wild rabbits or foxes are not.

44.Other statute however, recognises sentience in creatures which are invertebrates. The Animals (Scientific Procedures) Act 1986, for example acknowledges octopus and other cephalopods as capable of feeling pain and therefore sentient. Concern was raised with us that without a clearer definition of “sentient animals” in this Bill, then the duties of Ministers to have regard to the welfare needs of animals which are not vertebrates would be weakened. It was further noted that any new definition of “sentient animals” should not just replicate existing definitions but make allowance for scientific advances suggesting sentience in invertebrates other than octopus as well as in animals in a foetal form.51

45.As strong advocates of the need for a five-year maximum sentence for animal cruelty we worry that the vagueness and ambiguity of the purpose and meaning of Clause 1 of this draft Bill will impede and delay the introduction of this measure.

46.We recommend that the Government separate Clause 1 of this draft Bill entirely, and proceed with the Bill as the Animal Welfare (Sentencing) Bill, incorporating the changes we recommend in paragraph 19. Introducing legislation which increased sentencing for animal welfare offences across the board should do more for the rights and welfare of animals as sentient beings than the measure contained in Clause 1 of this draft Bill.

47.We further recommend that another, separate piece of legislation on animal sentience be introduced. This new piece of legislation will allow the problematic concepts in the existing Clause 1 to be better defined, clarify the accountability mechanisms to be applied and should remedy some of the other existing inconsistencies in present statute - such as the status of octopus and cephalopods - that we have highlighted in our scrutiny. We would be delighted to undertake further pre-legislative scrutiny on this putative stand-alone “Animal Sentience” Bill.

23 Written Ministerial Statement - Animal Welfare, HCWS340, 12 December 2017

24 Draft Animal Welfare (Sentencing and Recognition of Sentience) Bill, Cm 9554, Clause 1(1)

25 Draft Animal Welfare (Sentencing and Recognition of Sentience) Bill, Cm 9554, Clause 1(2)

26 See: Q2 and AWB 0014 (Mike Radford)

27 These areas are agriculture, fisheries, transport, internal market, research and technological development, and space

28 AWB 0014 (Mike Radford), paragraph 11

29 Q5

30 AWB 0014 (Mike Radford), paragraph 17

31 AWB 0014 (Mike Radford), paragraph 18

32 Q69 and Q73

33 Q5

34 Q6

35 Q14 and Q46

36 See, for example, Q29, Q37 and Q49

37 AWB 0003 (Sir Stephen Laws), paragraph 15

38 Q15

39 Q76

40 Q74

41 Q39

42 Q35

43 Q4 and Q16

44 Q35

45 Q46

46 See Q18 and Q28

47 Q82

48 Q24 and AWB 0003 (Sir Stephen Laws), paragraph 25

49 The exact wording of the relevant Clause of the Fiscal Responsibility Act 2010 was:

The only means of securing accountability in relation to—

(a) the duties in section 1, and

(b) duties imposed by orders under section 2, is that established by the provision made by or under section 3 for the making of progress reports and reports as to compliance and the duty imposed by subsection (1).

(3) Accordingly, the fact that—

(a) any duty in section 1, or

(b) any duty imposed by an order under section 2, has not been, or will or may not be, complied with does not affect the lawfulness of anything done, or omitted to be done, by any person.

50 Q25

51 Q55 and Q61

31 January 2018