The Animal Welfare (Sentience) Bill: Progress at last, with further still to go

May 2021

Today, after an extremely lengthy search through the long grass, the government has published its Animal Welfare (Sentience) Bill.

First things first – what is sentience and why is it important? Sentience refers to animals’ ability to have and experience feelings and sensations, both negative (such as frustration and fear) and positive (such as comfort and joy). Sentience is recognised in the EU under Article 13 of the Treaty on the Functioning of the EU, and along with it a requirement for animals’ welfare needs to be taken into account by the EU and its members when making and implementing policies.

Since the Brexit vote, this piece of legislation has had a long and at times very uncomfortable gestation period. The first attempt to put sentience recognition into UK law crashed out of Parliament in November 2017 when Caroline Lucas’s amendment to add sentience recognition to the Withdrawal Bill was defeated in the Commons, and Lord Trees’ amendment similarly defeated in the Lords. A moral panic followed (led by a media article titled ‘The Tories have voted that animals can’t feel pain…’), and in response government hastily published a Sentencing and Recognition of Sentience Bill, which was subsequently trashed in EFRA’s inquiry, chiefly for introducing legally ambiguous duties and associated risk of judicial review. Fast forward four years through numerous joint NGO and public campaign actions (including even support from Number 10’s cat, Larry); a Parliamentary debate and a Bill from Kerry McCarthy; meetings with Ministers and MPs; Brexit and a global pandemic, and we now finally welcome animal sentience back into Parliament, starting its passage in the Lords under Lord Goldsmith.

There is much to welcome in this Bill. Unlike the EU sentience provision, the policy scope is all-encompassing, meaning no carve-outs for government departments who may be less enthusiastic about taking animals’ needs into account when making laws. Also to be warmly welcomed is the formation of an Animal Sentience Committee (ASC), which Lord Goldsmith recently described to animal welfare organisations as ‘an expert committee, free to roam across the breadth of Government policymaking and implementation and to prioritise those policy proposals that it believes will have the greatest implications for animal welfare, will be able to highlight evidence, recommend changes, and require Ministers to address its concerns – both formally and in the open’. Key to the success of the Committee will be an expert membership (diversity, including animal welfare and ethics experts); independence; transparency; proper resourcing; and access to information to enable it to provide robust and constructive scrutiny. With these things in place it will be well-placed to support government’s delivery of a progressive welfare strategy, built on respect for the needs of sentient animals.

We are, however, concerned by the lack of judicial ‘bite’ in this Bill. The government’s current aversion to exposing itself to risk of judicial review has again led to light and indirect duties being imposed on Ministers. Instead of a legal responsibility to consider animals’ welfare needs, Ministers’ efforts to take animal welfare into account will be scrutinized by the ASC, and they will then be held accountable Parliament. This effectively outsources the bulk of animal sentience responsibilities to the ASC, a body that can make recommendations to decision makers but has no direct powers itself. It renders animal sentience an adjacent part of Government decision-making, rather than a direct and judicially enforceable duty.

When considering the risk of Ministers being carted off to Court for ostensibly failing to discharge duties to animals, it is important to remember that the bar for a judicial review is set very high, and has a prohibitive cost attached to it. For example, in 50 years, Compassion in World Farming has launched just four judicial reviews on animal welfare issues, only three of which were against the UK Government. As such, the use of an indirect ‘workaround’ duty on Ministers appears a disproportionate response to the actual risk of judicial review over-exposure, in practice.

Link and its members would like to see this Bill do more for animals. We recommend the addition of an additional duty for the Defra Secretary of State to create and maintain a cross-Whitehall Animal Health and Welfare (AHAW) Strategy that prospectively sets out how Ministers (supported by the ASC) plan to take animals’ welfare into regard within upcoming policy plans liable to affect animals, and a linked duty to lay (in writing and in person) an annual progress report to Parliament. This duty would tie Ministers more closely into animal sentience responsibilities, helping to prevent these responsibilities being unduly shouldered by an adjunct Committee. It would also provide for full and constructive Parliamentary scrutiny over the extent to which Government plans to act, or has acted, on a responsibility to consider animal welfare in policy options considered.

Finally, we are calling for the definition of “animal” to be expanded beyond only vertebrates, to include cephalopods and decapod crustaceans. There is ample evidence to show that these groups of animals are sentient, and indeed this definition expansion was agreed by the Scottish Animal Welfare Commission earlier this year. We urge Defra to expedite publication of the evidence review it commissioned in 2020, to ensure that these animals can be added to the Bill during its passage through Parliament.

Whilst this Bill is certainly not all we had hoped it would be, it is a step forward and we value the additional scrutiny it will bring to government’s decision making around the welfare needs of sentient animals. We appreciate the work of Lord Goldsmith and the Defra team in championing and bringing forward the Bill and making sure that it covers all Government departments. Having waited so long for Parliamentary time to be given to sentience recognition, we hope its passage through Parliament can steer it through amendments to improve and strengthen it, but keep it on track and not risk further derailments into the long grass.

Claire Bass is Executive Director of Humane Society International UK and Chair of Link’s Animal Welfare Group