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Ethics and the law

The importance of language when considering the ethical content of animal welfare legislation in the UK

17 April 2018, at 11:05am

Michael Gove, our secretary of state for Defra, has just delivered a speech to the Oxford farming conference laying out his vision for the post-Brexit landscape for farming and the countryside. Disappointingly, he has not prioritised animal welfare but appears to concentrate instead on environmental issues. The BVA have been quick to gently point this out and it comes at an opportune moment as the public consultation phase for the bill on animal sentience is still open for comment.

It is interesting that the consultation on the draft bill on animal sentience starts by listing three questions on definition; that also provides focus for consideration of the ethical content of the proposed legislation.

It is essential that when we formulate the language used in drafting legislation, we create an exact meaning of the wording and leave little room for alternative interpretation. We have an adversarial legal system and any ambiguity will be used to obfuscate the application of the intended legislation. So why do these words matter? And are they being highlighted to distract us from other parts of the bill?

Why is the definition important?

Consider the words themselves: define sentience. The Oxford English Dictionary definition is “to be able to perceive or feel things”. Under the AWA(2006) Section 1(3), the government already has powers to decide whether protected animal status is granted to any animal, so why is this necessary?

Part of this is due to our changing perceptions of animals’ abilities to experience and process information, and to use that information to change behavioural responses and the emerging recognition that there does not need to be the presence of a conventional mammalian brain structure to allow a degree of cognitive ability – shades of Pythagoras and the concept of animism perhaps.

However, the point behind this proposal is to ensure that legislators consider the impact of any new legislation on animal welfare and that this duty applies to all legislation, so there is a need to follow any suggestion that could dilute this impact.

It is interesting that the government’s consultation focuses on our understanding of animal sentience rather than the compulsion needed for politicians to consider the consequence of the legislation on animal welfare across the board. This could significantly alter the impact that the proposed addition may have and it has been enhanced by the offer of an increase in penalties for the worst cases of animal abuse or cruelty.

While this is an attractive idea to many, there may be problems in the application of this proposed legislation as there is a limit on the ability of magistrates’ courts to impose penalties. This could be a major difficulty as our courts are already overloaded and an increase in jury trials could cause further delays.

There is an opportunity here to ask why we do not simply adopt Article 13 of the Lisbon treaty and look at the difference that the domestic proposal has, and then to ask why this altered emphasis is necessary.

Applying the law to welfare

What difference does this altered emphasis make to our application of the law to animal welfare? First, the focus is altered to a consideration of animal sentience and what that means, as opposed to imposing a duty to consider the impact of legislation on animal welfare so there is a wide gap in the intent.

Secondly, because under section 1(3) of the AWA(2006) we already have a mechanism for extending protected status to other animals rather than those alone specifically defined in the Act.

This section of the Act has not been used despite compelling evidence that, for example, crustaceans have a level of sentience which warrants their protection. In a number of legislatures, crustaceans already have this status. Lastly, our proud boast that we lead the world in protecting and recognising animals’ needs, not only in our treatment of domestic species, but in our attitude to all sentient creatures, has come under scrutiny and is being thoroughly tested.

Perhaps we need a deeper fix than the present proposals suggest and perhaps we should be starting by increasing the opportunity for our schools to bring these ideas, and the provision of the tools to deal with them, into our classrooms so that all can have a better understanding and take an informed stance in these debates.