Animal Welfare (Sentience) Bill [HL]

Philip Lewis

The Animal Welfare (Sentience) Bill [HL] is a government bill. It was announced as part of the Queen’s Speech on 11 May 2021, had its first reading in the House of Lords on 13 May and is due to have its second reading in the Lords on 16 June 2021.

Are animals sentient?

There is a growing consensus among scientists and policymakers that animals are sentient beings capable of feeling emotions and experiencing pain. The Universal Declaration on Animal Welfare states that there is “scientific evidence for sentience in all vertebrates and at least some invertebrates”. The Campaign group Compassion in World Farming lists examples of evidence of animal sentience, including:

sheep remembering and recognising the faces of other sheep for up to two years;
mother hens teaching their chicks which foods are good to eat; and
cows showing excitement when they discover how to open a gate leading to a food.

A UK parliamentary petition run by the Better Deal for Animals campaign calling for an animal sentience law recently received over 100,000 signatures, and was debated in the House of Commons on 16 March 2020. The Government minister responding, Victoria Prentis, Parliamentary Under-secretary of State for Environment, Food and Rural Affairs, said that “it has never been in dispute that, of course, animals are sentient beings”.

However, others have questioned the extent to which certain species of animal can be classed as sentient. Speaking of Research, an advocacy group that seeks to “provide accurate information about the importance of animal research in the sciences”, argues that sentience is a complex philosophical concept that requires “careful handling when used as the basis of government policy”.

Background to the bill

Despite these points of contention, calls have increased for the recognition of animal sentience in UK domestic law. In December 2017 the Government ran a consultation on its Animal Welfare (Sentencing and Recognition of Sentience) Draft Bill. In this consultation, 80% of respondents requested that sentience be explicitly defined in UK law.

The principle of animal sentience governing animals in the UK was previously provided for at a European level, specifically in article 13 of the Treaty on the Functioning of the European Union. Article 13 provides that member states should pay full regard to the welfare requirement of animals when formulating policies in certain areas “since animals are sentient beings”. The expression “sentient beings” is not defined explicitly in the Treaty, but an EU Commission publication on the Animal Welfare Strategy 2012–2015 stated that sentience means that animals are “capable of feeling pleasure and pain”.

Article 13 itself states that:

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.

However, following its withdrawal from the European Union, these provisions are no longer applicable in the UK. Charities and campaigning organisations, including the Royal Society for the Protection of Animals (RSPCA) and the British Veterinary Association (BVA), have raised concerns about this gap. The BVA has called for new domestic legislation which includes a definition of sentience that encapsulates an animal’s capacity to have feelings, including pain and pleasure, and which implies a level of conscious awareness.

Several animal sentience amendments were also tabled during the passage of the European Union (Withdrawal) Bill in 2018 to address this issue. For example, an amendment in the name of Green Party MP Caroline Lucas sought to add a new clause 7 to the bill that would require the Government “to pay regard to the welfare requirements of animals as sentient beings when formulating law and policy”. In response, then Solicitor General Robert Buckland said that the Government supported the sentiment behind the new clause, but believed it could improve the coverage of protection for animals if the Government introduced its own domestic legislation.

Government’s action plan for animal welfare

The Conservative Party 2019 manifesto made several pledges on animal welfare. These were subsequently incorporated into the Government’s ‘Action Plan for Animal Welfare’, published in May 2021. These proposals are based upon reform across five key strands, including:

recognising animal sentience in domestic law and creating an expert committee to hold the Government to account on animal welfare in policymaking;
ensuring that animal welfare standards are not compromised in trade negotiations;
tackling the trade in puppy smuggling and pet theft; and
ending the export of live animals for slaughter and fattening.

In the Queen’s Speech on 11 May 2021, the Government set out its plans to bring legislation forward in the current session to fulfil its ‘Action Plan for Animal Welfare’. This included the Animal Welfare (Sentience) Bill [HL], which received its first reading in the House of Lords on 13 May.

In the subsequent debate in the House of Lords on the Queen’s Speech, Lord Greenhalgh, Minister of State for the Home Office, said that as well as the animal sentience bill, the Government would also bring forward a bill to tackle puppy smuggling and the keeping of primates as pets. In addition, he said the Government would introduce an ‘animals abroad’ bill to tackle animal welfare issues outside the United Kingdom by implementing the “world’s toughest ivory ban and banning the import of hunting trophies”.

The Government legislated about animal welfare in the last session. The Animal Welfare (Sentencing) Act, which received royal assent on 29 April 2021, raised the maximum prison sentence for animal cruelty from six months to five years. In addition, the Animal Welfare (Service Animals) Act, known as ‘Finn’s Law’, came into force in 2019. This prevents those who attack or injure service animals, such a police dogs, from claiming self-defence.

What does the bill do?

Animal sentience committee

Clause 1 of the bill would require the secretary of state to establish and maintain an animal sentience committee. Under the measures provided for by clause 2, this committee would have the power to publish reports giving its view on whether the Government has given “all due regard” to the ways in which a given policy might have an adverse effect on the welfare of animals as sentient beings.

The committee would also be able to produce recommendations on how the Government can ensure animal sentience is accounted for in future policymaking.

Clause 3 would require the secretary of state to lay before Parliament a response to any report published by the animal sentience committee. Such a response would have to be provided within three months of the report’s publication.

Clause 4 would make technical provisions to bring the animal sentience committee into the scope of existing transparency legislation, including the Public Records Act 1958 and the Freedom of Information Act 2000.

Definition of an animal

Clause 5 of the bill would provide that an ‘animal’ under the terms of the legislation means any vertebrate other than homo sapiens. The bill would also provide the secretary of state with the power, by affirmative instrument, to extend this definition to invertebrates. The question of invertebrate sentience is discussed further below.

Clause 6 on the territorial extent of the bill states that the law would apply to England, Wales, Scotland and Northern Ireland.

Are invertebrates sentient?

Debate around the bill has focused around the Government’s definition of an animal for the purposes of the bill, and whether this classification should extend beyond vertebrates.

Many scientists are currently divided on whether invertebrates can be classed as sentient. Debate and academic research on sentience has tended to focus on mammals. However, certain experiments and findings have increased awareness of non-mammal sentience. The Government has commissioned an independent review into the sentience of decapod crustaceans (including lobsters, crabs and crayfish) and cephalopods (including octopus, squid and cuttlefish). In a recent experiment, octopuses were observed avoiding a chamber that caused them pain. Instead, they actively chose an area where a local anaesthetic would be applied to the painful area. Octopuses have been protected in UK legislation on animal experimentation since 1992, while all other cephalopods were, prior to Brexit, protected under a 2010 EU directive. This has led to a situation where cephalopods are protected from use in science but at the same time are not recognised as sentient.

The Crustacean Compassion campaign group has argued that the idea that crustaceans such as lobsters, crabs and crayfish do not feel pain is “based more on species prejudice than on fact”. The group has published an open letter to the Government stating that, because crustaceans fall outside of the definition of an animal under the Animal Welfare Act 2006, there is currently “no legal requirement for food processors, supermarkets or restaurants to consider their welfare during storage, handling or killing”. The group argue that scientific evidence has emerged since the 2006 act that “strongly indicates” crustaceans are capable of feeling pain.

In answer to a written question on whether the Government will include decapod crustaceans in the bill, Victoria Prentis, Parliamentary Under-secretary of State for Environment, Food and Rural Affairs, stated that the Government has the power to do this through secondary legislation, should scientific evidence support it. She confirmed that the independent review into whether crustaceans and cephalopods can be considered sentient “will report shortly”.

Does the bill go far enough?

Some have also argued that the provisions in the bill are insufficient to protect animal welfare. For example, the UK Centre for Animal Law (A-Law) has called the bill “a job part done”. While welcoming many aspects of the bill, A-Law has raised concerns about the design of the proposed animal sentience committee. These concerns include:

the terms of appointment of committee members, and the power of appointment resting entirely with the secretary of state;
there being no statutory requirement for the committee to be independent; and
the potential for the Committee to be incorporated as a sub-committee of the animal welfare committee, which A-Law argue would damage its ability to hold the Government to account.