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Sentience, welfare and Brexit

Does Brexit present an opportunity to rationalise legislation?

20 June 2018, at 3:02pm

Last November, a public outcry erupted about the fact that the draft EU Withdrawal Bill failed to transpose into British law the recognition of animal sentience, which is explicit in Article 13 of the Treaty of Lisbon. This was portrayed in some parts of the media as a refusal on the part of the government to recognise that animals are sentient beings (eg The Independent, 2017). In fact, the issue was more complex. 

Article 13 places a responsibility upon the EU and Member States (ie governments) to pay full regard to animal welfare requirements when drafting and implementing a wide range of legislation “since animals are sentient beings”. In contrast, the UK’s Animal Welfare Act (2006) – one of the main pieces of legislation which will continue to protect animals after Brexit – places a duty upon the person responsible for an animal to prevent “unnecessary suffering”, and does not explicitly mention sentience at all.

The government argued that its refusal to transpose Article 13 arose not from a lack of belief in animal sentience, but from a belief that animal sentience could be better protected by some mechanism other than the EU Withdrawal Bill

The government argued that its refusal to transpose Article 13 arose not from a lack of belief in animal sentience, but from a belief that animal sentience could be better protected by some mechanism other than the EU Withdrawal Bill. 

Possibly as a result of the very obvious strength of public feeling about the issue, and the political dangers of being portrayed as “anti-animal welfare”, the government moved swiftly to introduce the Animal Welfare (Sentencing and Recognition of Sentience) Bill. That bill has been consulted upon, and is now going through Parliament. 

Those processes afford an interesting opportunity to reflect upon the role our understanding of sentience plays in the development of animal welfare policy, and also upon the inconsistencies between two of the major pieces of legislation which currently protect animal welfare in the UK. 

Research into animal sentience is a huge area of scientific endeavour, characterised by an acceptance among those working in the field that current understanding of which animals are sentient, and indeed of what exactly sentience is, is incomplete. Donald Broom’s book Sentience and Animal Welfare (2014) serves as an excellent introduction to the topic. Broom describes components of animal sentience as including brain complexity and cognitive ability; the ability to discriminate and recognise; the capacity for metacognition (ie knowing what you know); capacity for innovation; capacity to experience feelings and emotion; and the capability of feeling pain.

Why is sentience important? 

Sentience is important because it provides one basis for our moral concern about animals. For many of us, the fact that animals are capable of suffering is at least one of the things we feel makes them worthy of our moral consideration. Harm to sentient animals, we feel (adopting a utilitarian approach), needs to be justified. 

How is our understanding of sentience reflected in British legislation? 

Recognition of animal sentience and the need to consider it underwrites current legal protections of animal welfare in the UK. Thus, although sentience is not explicitly mentioned, our understanding of sentience provides the rationale for both the 2006 Animal Welfare Act (AWA) and the 1986 Animals (Scientific Procedures) Act (A(SP)A). The core of the AWA is the prevention of “unnecessary suffering” (section 4). Similarly, the A(SP)A aims to protect animals against unjustifiable “pain, suffering, distress or lasting harm equivalent to, or higher than, that caused by the introduction of a needle in accordance with good veterinary practice” (section 2:(1)). 

Does Brexit offer opportunities for improving sentience-based legal protections of animal welfare? 

There are currently some interesting discrepancies between the AWA and the A(SP)A. The AWA applies only to (non-human) vertebrates. In contrast, the A(SP)A, as it was amended in 2012 to bring it into line with European legislation, applies to (non-human) vertebrates, and to any living cephalopod not in its embryonic form (cephalopods are invertebrates). 

Furthermore, whereas the AWA does not apply to animals in their foetal or embryonic form, the A(SP)A does apply to mammals, birds or reptiles in the last third of gestation or incubation, and to other foetal, larval or embryonic forms once they become capable of independent feeding. 

The sentience-based protections given by the A(SP)A are currently more wide-reaching than those provided by the AWA. The provision already exists in section 1 (3, 4) of the AWA for the “national authority” to widen the scope of the animals being protected if it is satisfied, on the basis of scientific evidence, that animals of the kind concerned are capable of experiencing pain or suffering. 

It is difficult to understand why the national authorities responsible for the protection of those animals falling under the AWA have not updated the AWA to include cephalopods and specified pre-natal forms, in line with the scope of the A(SP)A. Indeed, some researchers suggest that some decapod crustaceans, such as lobsters, should also be protected by legislation, based on emerging evidence about their sentience (Elwood, 2012). 

Brexit is not a necessary prerequisite for bringing sentience-based protections of animal welfare in the AWA and A(SP)A in line with each other, but the whole debate about animal sentience which the Brexit process has inspired provides an excellent opportunity to do so.

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