Animal Welfare (Sentience) Bill [HL]

Debate between Earl of Caithness and Lord Etherton

3rd reading
Monday 13th December 2021 Lords Chamber

[The Earl of Caithness (Con)]

My Lords, I, too, support what my noble friend Lord Herbert said. I underline a point made by my noble friend Lord Mancroft. This sets a parliamentary precedent in the appointment of statutory committees which could have huge ramifications for future Bills. The Government will be able to say that we do not need to set out the statutory terms of reference for the committee because we already have the precedent of this Bill.

I am sorry that my noble friend Lord Benyon has had to take this Bill through the House. It should have been another Minister. My noble friend was absolutely right when he said that he has had to drive it through the House. He has not looked right; he has not looked straight ahead. He has looked left. He rightly paid tribute to his co-driver, the noble Baroness, Lady Hayman of Ullock.

Finally, I am disappointed that I have not yet received a reply from my noble friend to the questions I posed on Report. I hope that he will expedite those.

[Lord Etherton (CB)]

My Lords, I, also, support the amendment of the noble Lord, Lord Herbert. Even at this late stage, it is worth emphasising that the absence of any restriction on the purview of the sentience committee will mean that no recreational activity, cultural tradition, regional heritage or religious rite—in its practice or observance—is safe from scrutiny by the committee.

In Committee, the Minister was good enough to give some reassurances about the long-standing practices of religious slaughter in this country going back hundreds of years. The trouble is that the only policy that has been disclosed means that it will be open to any future Secretary of State, Minister or future Government to take a different view. Unlike under the Lisbon treaty, there is absolutely nothing to restrain them from doing so.

As I said on Report, if the Government decided not to follow a recommendation from the sentience committee on contentious issues relating to animal welfare, it would inevitably give rise to the potential for judicial review and challenge. You cannot stop people bringing a judicial review. The Government may be confident that they would win, but these will not be straightforward matters. One will have to consider whether the sentience committee has acted within its statutory rights, whether or not the evidence sufficiently supports what the committee recommends and whether the Government have sufficient other factors which outweigh the recommendation of the committee. I agree that this Bill is going to come back to bite badly.

Animal Welfare (Sentience) Bill [HL]

Debate between Earl of Caithness and Lord Etherton

Committee stage
Tuesday 6th July 2021 Grand Committee

[Lord Etherton (CB)]

I am speaking to Amendment 31 in the name of the noble Lord, Lord Forsyth of Drumlean, to which I have willingly and gladly added my name.

I start with a question: why has this short Bill, which elaborates on a principle with which we can all agree—that the welfare of sentient animals is important—generated so much criticism and so many amendments? To a large extent, it is obvious from what has been said so far that this is due in part to a lack of particularity in the Bill. Such matters include who and how many will be the members of the animal sentience committee, what authorisation will be required before the committee starts work on any policy, the committee’s relationship with the Animal Welfare Committee, and what options are open to the Government in response to a report and recommendation of the sentience committee.

I suggest that the proposed amendments are in large part because the Bill is entirely negative, in the sense that it seeks to impose restrictions on the way people go about their work, the way they relax and enjoy themselves, and the ways in which they can give effect to their religious values. Such restrictions go to the heart of what we regard as a diverse society in a democratic state. They go to the heart of freedom of personal conduct and belief.

This is why Article 13 of Title II of the Lisbon treaty, which recognises animal sentience and requires full regard to be paid to the welfare of animals, stipulates that member states must nevertheless respect

“the legislative or administrative provisions and customs”

of EU countries

“relating in particular to religious rites, cultural traditions and regional heritage.”

The noble Earl, Lord Kinnoull, elaborated on the history behind that provision. As he said, the UK was one of the key EU members that lobbied for Article 13, qualified in that way, so there appears to be no reason why a similar qualification is not to be found in the Bill. The provision of that minimum balance is the object of Amendment 31, which uses identical language to that in Article 13, as does Amendment 35 put forward by the noble Earl.

The need for balance in the Bill with the same or similar qualification as in Article 13 of the Lisbon treaty also has a legal aspect. I am not qualified to speak about farming practices. However, recreational activity and adherence to religious practice fall within the protection of the European Convention on Human Rights. Recreational activity, including the enjoyment of country sports, falls within the protection for private and family life in Article 8 of the convention. Limited exceptions to that right are set out in Article 8(2) but, so far as I can see, the only ones that might be relevant are

“the protection of health or morals”

and

“the protection of the rights and freedoms of others.”

Even so, a restriction or limitation falling within Article 8.2 is valid only if, among other things, it is proportionate. That is simply a legalistic way of describing the need for balance. Many of the amendments put forward today are essentially concerned to achieve proportionality, including, for example, no retrospectivity in the work and recommendations of the sentience committee and provisions as to its composition.

On religious rites, particularly at issue in the present context is religious animal slaughter. The importance of expressly preserving in the Bill the right of citizens to adhere to their religious practices is perfectly clear. That right, which falls within Article 9 of the European Convention on Human Rights is expressly and necessarily stated in Article 13 of the Lisbon treaty. The jurisprudence of the European Court of Human Rights in Strasbourg has highlighted in many cases the importance of the rights protected by Article 9 in a pluralist, democratic society. Our Human Rights Act 1998, which enabled disputes on convention rights to be resolved in our own courts, contains the specific provision in Section 13 that:

“If a court’s determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right.”


It is not necessary for present purposes to go into the nature of religious animal slaughter in the form of shechita or its Muslim equivalent. There is scientific evidence on both sides of the debate about the humanity of this, but it is clear that the protection of the right to manifest religious belief is enshrined in the treaty obligations we already have and in our own domestic legislation. Therefore, there can be no good reason why, as in the case of Article 13 of the Lisbon treaty, the considerations and recommendations of the sentience committee should not be made expressly subject to respect for religious rites. This would provide balance, clarity, certainty and compliance with Article 9 and Section 13 of the Act.

[The Earl of Caithness (Con)]

My Lords, I hope my noble friend the Minister will give us a full and detailed reply, because there have been so many questions and unfortunately, the Committee being operated in this way because of Covid, we will not be able to cross-examine him in quite the way we would have done when it was sitting normally.

I start from the basis that we ought to retain the current position, which we had just before we left the EU. I therefore support the noble Earl, Lord Kinnoull, in his Amendment 16. However, Amendment 1, moved by my noble friend Lord Hamilton of Epsom, is absolutely critical; that is, having the composition of the committee and how it operates controlled by regulations. It would be quite wrong for the Government to be able to set up a committee at their own whim and dictate, without coming to Parliament, exactly how it might be composed and operate. I hope my noble friend will be able to be very positive on that amendment.

Could my noble friend also confirm that the noble Lord, Lord Trees, was absolutely right? In speaking to his Amendment 3, the noble Lord drew attention to Clause 2, which says that the committee must comment on policy or what policy might be formulated. Does this mean that it cannot recommend policy to the Minister? If it were able to go off on its own and come forward with a report that says the Government ought to legislate in an area, it would broaden the scope of Clause 2. I hope my noble friend will confirm that it is strictly limited to policy generated by the Government.

I agree with my noble friend Lord Moylan on Amendment 19 and the need for medical research to continue. I hope that is fairly straightforward.

I support what my noble friend Lord Howard of Rising said on vermin. Vermin need to be controlled but they should, quite rightly, be controlled in the most humane manner possible. I raised this during the Environment Bill, when my noble friend Lord Goldsmith moved away from human to natural vermin control but, if one were to pursue that policy and way of thinking, we would have no control of the outcome at all. I hope my noble friend will confirms that, as the apex predator, man has an important role in improving biodiversity.

I conclude by agreeing with the noble Baroness, Lady Mallalieu, on judicial review. One can pick a great many holes in the Bill as drafted, and I can see the judicial review process being used more heavily on this Bill than in most other legislation we have considered.