In our recent Nuffield Council report, Genome editing and farmed animal breeding: social and ethical issues (December 2021), we explored how to ensure that the introduction of new breeding technologies would do justice to those who depend on the food and farming system. And we recognised that farmed animals, as well as human populations, come within the scope of justice, albeit in distinctive ways. So how pleased should we be about this new legal development?
Human understanding of the experiences of non-human animals is an evolving area of study. As part of our inquiry, we carried out two reviews of relevant literature, one looking into research on animal sentience and consciousness, and the other the longitudinal effects of breeding practices on animal health and welfare. A summary of this research is published alongside our main report.
Our reviews show that, while early investigations of animal sentience and consciousness focused on negative experiences and had a rather anthropocentric orientation, much of the more recent research has shifted towards understanding the experiences that constitute a good life for animals of different species. Furthermore, it has attempted to understand these experiences on something more like their own terms, rather than by their similarity to human experience. Research on animal sentience and consciousness now draws in a wide range of academic disciplines, including comparative psychology, behavioural studies, neuroscience, animal welfare science and philosophy. It has resulted in a complex understanding of the different ways in which the farmed animal species covered in our study – chickens, cattle, goats, pigs, sheep, cephalopod molluscs (squid, octopus, cuttlefish etc.) and decapod crustaceans (crabs, lobsters, prawns etc.) – indicate the capacity for diverse kinds of experience.
The new law is intended to make good on a promise made in 2017, in the heat of debate on the EU Withdrawal Bill. At that time, the Government declined to adopt into UK law the recognition of animal sentience that was contained in Article 13 of the consolidated Treaty of the Functioning of the European Union (TFEU), introduced by the Lisbon Treaty ten years earlier. In a subordinate but nonetheless significant clause, Article 13 TFEU contains the phrase “since animals are sentient beings”. This has the effect of recognising sentience as a legal fact and requiring, in virtue of this fact, that Member States pay full regard to the welfare of animals in formulating a wide range of policies. This is very different from the way welfare is protected in existing UK legislation (such as the Animal Welfare Act 2006), which is designed to prevent (or to provide a remedy for) the effects of neglect or mistreatment of animals as they stand in particular relations to people, rather than in virtue of what they themselves are.
When it declined to adopt the language of the Lisbon Treaty in 2017, the UK Government promised to go further still. Has it? In one sense, it has: the new Act covers the potential impact on animal welfare of all areas of government policy rather than the range (albeit broad) specified in Article 13 TFEU. That animal interests can be affected by any government policy intimates how closely their lives and interests are entangled with human society and institutions. The Act also brings some necessary discrimination to the general term ‘animals’, recognising all vertebrates and, following amendment in committee, cephalopod molluscs and decapod crustaceans as deserving protection. (Other species may be added in the future via Regulations.) The new law does not impose a duty to have regard to animal sentience directly on Government, one which might have relied on the Government being taken to court to enforce. Instead, it creates a new body, the Animal Sentience Committee, which is expected to hold the Government to account.
The way in which the Government receives advice on animal welfare from a range of committees and groups with distinct and often separate remits, and little proper authority, is reminiscent of the diffused advisory framework for biotechnologies as it existed in the late 1990s, prior to the review that swept them away and established the Food Standards Agency and two high-level strategic advisory bodies, the Human Genetics Commission and the Agriculture and Environment Biotechnology Commission. Whatever their faults may have been, the creation of these well-resourced, publicly visible and authoritative bodies played an important role in ensuring that public policy served the public interest. The establishment of the Animal Welfare Centre of Expertise, bringing together the new Animal Sentience Committee with the Animal Welfare Committee (AWC), the Welfare at Killing committee, and the Zoos Expert Committee, recognises the need for coordination of government advice on welfare. But, as we found in our inquiry, there is a need for better articulation of these with all the bodies dealing with animal research (e.g. Animals in Science Regulation Unit), breeding (e.g. the Farmed Animals Genetic Resources Committee) and health (e.g. Animal and Plant Health Agency). There should be a thread, running through these, that links agreed standards, efficient use of data to demonstrate that those standards are being met, and effective regulation to help breeders and producers meet the agreed standards and to guard against noncompliance. And these functions should work together to serve a clear, coherent, and publicly articulated vision of what a desirable food and farming system looks like.
The Animal Sentience Committee exists to address one question, namely, “whether, or to what extent, the government is having, or has had, all due regard to the ways in which the policy might have an adverse effect on the welfare of animals as sentient beings.” Two points are worthy of note in this careful formulation. First, the phrase ‘all due regard’, implies a judgement about what kind and degree of attention the sentience of animals entails, and therefore about whether the Government, in determining policy, is doing its job properly. Here is an area of potential negotiation. But the second point to note is the terminal phrase ‘as sentient beings’. It is this that grounds, for the first time in UK law, the treatment of animals in the inherent value of the animals’ own experiences, and why the kind of sentience research that we have described above may come to take on real significance. But this, too, will need to negotiate potential epistemic conflicts, particularly in emerging fields of research, about what kinds of knowledge or evidence or methods are to count as relevant to policy. This is why the Animal Sentience Committee should be independent and open to all forms of knowledge making that offer insights into animal experience, but also why it will have its work cut out.
The answers to five questions may give a clue to how well the Animal Sentience Committee is likely to secure that government policy supports the welfare of sentient animals.
1. Will its chair be authoritative and independent?
The Chair will need to be someone with personal authority who is unafraid to assert a robust and independent view. This should be a major public appointment and it should attract candidates of significant public standing, who owe nothing to, and have nothing to gain from, political patronage. Likewise, the Committee’s eight to twelve members should have established expertise and experience in relevant fields while having the confidence to be challenged by diverse and emerging understandings of animal experience.
2. Will it be truly free to set its own agenda?
The Act provides that the Committee may report on the impact of any government policy that is being or has been formulated or implemented. That is potentially quite a range, so the committee will have to be discriminating. Will it be steered in this by the public interest? How will it set its priorities in the light of views expressed by ministers, stakeholders, or the public at large?
3. Will it have the resources to pursue any agenda it sets?
In committee, the Government Minister, Lord Benyon, stated that the Government “want the committee to have everything it needs to do its job well”. The Committee will have to justify its use of public funds. The proposed budget of £500,000 per year (additional to expenditure shared with the AWC) is little enough to cover operational expenses and will have to be managed prudently. There are other resources, however, including a skilled and dedicated secretariat (shared with the AWC), and access to expertise, information and officials, that the Committee will need, particularly where it will be reporting on policy that is in the process of being formulated.
4. Will it have a clear voice in the public sphere?
The Committee’s reports will be published and the Government’s responses will be laid before Parliament within three months. But how visible will the Committee be? The AEBC and HGC had their own, independent communications function and press offices (the Sentience Committee will borrow from Defra’s) and generated considerable public and media attention in their day. This is likely to be welcomed by a public that has an appetite for engaging with animal welfare issues, as the findings of our own public dialogue suggested. High visibility will help not only with raising the profile of animal welfare in the public sphere but also of attracting contributions to future consultations and generally increasing the level of public participation in relation to these issues.
5. Finally, will the Government heed the Committee’s recommendations?
The Committee will have to work with Government policy and with policy makers, while preserving its independence and the ability to ‘speak truth to power’ (as the HGC’s first chair would often assert). This requires considerable skill and judgement. Recommendations will have to be helpful and workable, in the spirit of ‘open policy making’, but robust when necessary. Trust and communication between the Chair and ministers, and between officials within the secretariat and those in the wider government and agencies will be essential to its success.
Some of these questions are broached in the Animal Sentience Committee’s draft terms of reference but they can only fully be answered in practice. If the answers that emerge are favourable, it may be that the Animal Sentience Committee will not only be capable of forestalling the possible adverse effects of government policy on animal lives, (as it is charged to do) but even of offering a positive contribution to make them better.