Animal Welfare (Sentience) Bill [HL]

Lord Lexden Excerpts

Committee stage
Tuesday 20th July 2021 Grand Committee

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

The noble Lord, Lord Howard of Rising, has withdrawn so I call the noble Lord, Lord Benyon.

[Lord Benyon (Con)]

I thank my noble friend Lord Moylan for his Amendments 28 and 42. Members of the animal sentience committee will be appointed through a rigorous procedure of fair and open competition. As I have said previously, the committee will be comprised of experts who will be best placed to decide what the committee’s priorities should be, although they will of course be able to consult others.

Peer-reviewed evidence from academic journals will have a role in informing the committee’s work. While we do not propose to dictate to the committee how it should set out its reports, it is usual for expert committees such as this to present well-reasoned reports that show their working. The Scottish Animal Welfare Commission, for example, publishes its reports online and includes its reasoning and references. However, I do not believe that it is necessary for the committee’s reports themselves to be published in academic journals. To require the committee’s recommendations to undergo a full academic peer-review process would be impractical and inappropriate, and would risk creating a process that would slow down the publication of the committee’s views and delay the opportunity for Parliament to hold Ministers to account.

It is key that the committee should be able to advise on policies while they are being developed. This amendment would severely compromise its role. The committee will publish reports, so it will naturally have an open way of working. I believe that this will provide transparency about its work. If a Minister felt that a report of the committee identified a need for further evidence or assessment, they would be free to highlight this in their response to the report.

Nothing would please me more than to spend time talking about the philosophy behind what we are talking about. We could even, if we had time, discuss Descartes’ Meditations on First Philosophy, in which he said that animals possess life

“nobler than any merely corporeal grade of being”.

However, in terms of how we approach this Bill, the definition of sentience is important. Our scientific understanding of sentience has come a long way in recent years and will continue to evolve. The Bill does not therefore have a fixed definition of sentience. It is not necessary to define sentience in statute for this Bill to work. We can all recognise that animals are sentient and that their welfare should be considered in decision-making; there is no need to make it more complicated than that.

Our GB-wide Farm Animal Welfare Committee issued a definition of sentience in 2019. The Scottish Animal Welfare Commission recently published a statement on sentience. There are some differences; this shows the importance of adopting a flexible approach that can evolve. It is worth noting that neither definition is set out in statute. The Scottish Animal Welfare Commission’s definition is one that it has adopted for its own purposes; similarly, if the animal sentience committee considers it expedient to adopt a working definition of sentience, it would of course be free to do so, but that is a discussion for its members to have.

I hope that this reassures my noble friend and that he will withdraw his amendment.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

My Lords, I have received one request to speak after the Minister. I call the noble Baroness, Lady Bakewell of Hardington Mandeville.

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I just want to refer to the contribution made by the noble Lord, Lord Hamilton of Epsom. He said that he hoped that vegans and vegetarians will not be on the committee as they might sway its decisions. Can the Minister confirm that the appointment of members to the committee will not be prejudiced against those of religious persuasions or other protected characteristics?

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

My Lords, there is a Division in the Chamber. The Committee stands adjourned for five minutes.

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[The Deputy Chairman of Committees (Lord Lexden) (Con)]

My Lords, it is time to resume. Perhaps the Minister might like to say a word in reply to the noble Baroness, Lady Bakewell.

[Lord Benyon (Con)]

I thank the noble Baroness for her question. It would not be our intention to edit the committee’s membership by their eating habits or by any other habits or disciplines. We want a balanced committee that draws together a wide range of expertise across the whole field of animal welfare.

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Amendments 29 to 35 not moved.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

My Lords, we now come to the group consisting of Amendment 35A.

Amendment 35A

Moved by

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[The Deputy Chairman of Committees (Lord Lexden) (Con)]

I have received two requests to speak after the Minister from the noble Lords, Lord Hamilton of Epsom and Lord Moylan. I call the noble Lord, Lord Hamilton.

[Lord Hamilton of Epsom (Con)]

My noble friend Lord Caithness mentioned the predation of badgers, which of course do not come under pest control; they are protected. He did not mention that badgers very much like eating hedgehogs. They are skilled at rolling them over and disembowelling them. When we worry about the decline in hedgehog numbers, very rarely does anybody mention that perhaps badgers are responsible for this.

Another protected species is the sparrowhawk. If you shoot a sparrowhawk you get fined £1,000 because all hawks are protected, but 34 songbirds every week account for their diet. We have to bear in mind that in nature, almost all species are predated on by others. We just want to get all this into perspective.

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Clause 4 agreed.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

We now come to the group beginning with Amendment 48.

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[Lord Moylan (Con)]

My Lords, there are four amendments in this group in my name, Amendments 48, 52, 53 and 57. I will come in a moment to say exactly what they would do, but I shall make some preliminary remarks that arise from something my noble friend Lady McIntosh of Pickering said and which has not been sufficiently discussed. This is the famous metaphysical bit that the Minister has been worried about, although I hope to get through this while skirting Descartes—or anybody difficult or foreign, for that matter.

The difficulty we have is that we are asked to assess to what extent, in a meaningful way, we think that animals can feel pain. That requires us to think a little about what pain and feeling are. My noble friend Lady McIntosh brought up insects as an example of this, but it relates to other creatures as well. Pain itself, of course, is not just an interior experience; it is, to some extent, a social concept. Pain is an abnormality, but we learn from others that it is an abnormality that is expressive of something that requires a response. So, we learn as children, “Don’t put your hands on the coal. If you do put your hands on the coal, that is what we call pain; learn not to do it again.” There is a social element to it, and it is not by any means clear that that can be translated to animal experience. This is the problem of operating on a non-behavioural scientific basis.

We humans also have coping strategies for dealing with pain. When I know I am going to have an injection in my arm, I always make sure that I look the other way; that is a very small example of a coping strategy. That illustrates another thing about the human experience of pain, which is that very often it is worse in anticipation than in the experience itself. All of this is tied up with what we understand by pain: for humans, it is not simply a neurological experience that can be tracked by chemicals and electrons, although it has all those aspects to it.

It is very difficult to know how one can map that across the bulk of animals. It is easiest to do so, of course, in the case of mammals, because there we have a closer link with ourselves in terms of DNA composition and so forth. To map it to fish and birds is extremely difficult. Indeed, it is scientifically quite challenging to understand how the very limited neural capacity, or brain capacity, of fish and birds could accommodate that range of complex experiences of pain characteristic of humans and, perhaps, of primates and other higher mammals.

There is also a similar question about what it is to feel something. In ordinary English, “feel” has two aspects: I can feel a table—that is a physical sensation—but I can also feel love, disdain and other emotions. Nobody doubts at all that the vertebrates we are discussing can feel in the former sense but, simply as a matter of their neural and brain capacity, the notion that they even have the ability to feel love, affection, fear and complex emotions such as those is a very challenging one.

We really need to understand that sort of background before we do what the Bill does, which is to cast an extremely wide net. It includes all vertebrates, but it goes beyond that: it gives the Secretary of State the power, which I think is completely unprecedented, to decide that any invertebrate, including the insects referred to by the noble Baroness, Lady McIntosh of Pickering, are in fact sentient. That is the power given to him which, as I say, is almost incredible.

I turn to the detail of what my amendments seek to do. They would cut the thing in different ways. First, Amendment 48 suggests we “leave out ‘vertebrate’” and limit the scope of the Bill to mammals. This would make it much easier for the public, and for many members of this Committee and your Lordships’ House, to accept the Bill. It could be regarded as a first stage; there would be nothing to prevent the Government coming back subsequently and saying, “Having won over opinion on the question of mammals, we could now extend it to the broader class of vertebrates.” Amendment 52 explicitly invites the removal of fish—it is playing the same tune—and Amendment 53 proposes the removal of birds. These are all different ways of coming at the same thing.

Amendment 57 is slightly different, because I still cannot get over my outrage that Parliament is proposing to give the Secretary of State the power to designate any invertebrate as sentient. Here, simply for the sake of modesty and respectability, this amendment would limit that power to “cephalopods and decapod crustaceans”, simply because one knows from conversation and debate that that is the category of animals most likely to come within scope of this unprecedented power. It should none the less, in my view, be limited.

That is the purpose of these amendments and it is important that we explore them, because I do not accept that it is easy to map notions of feeling and pain on to these classes. Perhaps I may briefly refer to—

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

My Lords, there is a Division in the Chamber. The Committee stands adjourned for five minutes.

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[The Deputy Chairman of Committees (Lord Lexden) (Con)]

My Lords, we shall resume. The noble Lord, Lord Moylan, may complete his speech and move his amendment.

[Lord Moylan (Con)]

My Lords, I had just finished commenting on my own amendments when we were interrupted, so it was a convenient break, but before I conclude I shall comment on a few other amendments in this group.

Amendment 50, in the name of my noble friend Lord Robathan, would exclude the actions of wild animals upon other animals from the scope of the committee’s activities, and I think that must be sensible.

Amendment 56, from my noble friend Lord Trenchard, to leave out the power to designate invertebrates is in keeping with my amendment, and I support it.

My noble friend Lord Mancroft’s Amendment 59, which would require a scientific report that a being is sentient before it is redesignated as such by the Secretary of State under this very broad power, is an absolute minimum requirement and one that is very much in keeping with my comments on the previous group.

Finally, Amendment 49, in the name of the noble Baroness, Lady Hayman of Ullock, concerns cephalopods and decapods. As the same words are used in a different order it might easily be confused with my amendment, but on careful examination it has a very different effect. My proposal at least puts some decency on this unprecedented power so that it is confined to the most likely class of animals. I understand—and I am sure I can be corrected—that Amendment 49 effectively takes the decision for the Secretary of State and includes cephalopod and decapod crustaceans as sentient beings on the face of the Bill. That is quite different from what I am proposing, if I have understood the amendment correctly, and I do not think that without proper and rigorous scientific reports, as indicated by my noble friend Lord Mancroft, this august Committee is quite the place in which to make such a radical transformation in our understanding of the natural world. I beg to move.

[Lord Robathan (Con)]

My Lords, I shall confine myself to speaking to my Amendment 50 for reasons of brevity. The more astute Members of the Committee will have realised that this refers to Section 2 of the Animal Welfare Act 2006, but this seems to me, to a certain extent, the nub of the Bill. It concentrates on what we, as people, are responsible for.

As a slight side-issue, I was asked to change the language because, of course, these days parliamentary language should be gender-neutral. However, surely everyone—however ill-educated—knows that the term “mankind”, or “man” in this context, has always included all human beings, all humanity, of whatever gender. I mention that because language is important, and this is legislation. To have been not specific about “mankind” might have been an example of lack of clarity, of which I fear this Bill is also an example.

On the substance, if I am responsible for an animal, I have responsibilities and duties to that creature, be it my dog, my rather foolish hens—which are not laying eggs at the moment—a cow or, indeed, a pheasant. However, I am surely not responsible for the rats we all live with, nor the squirrels destroying the trees I have planted, nor if my dog catches a rat—it is a terrier, and that is what terriers do. We then come on to fish in a river. Is the owner of a particular stretch of river responsible for a fish moving up and down it? Fish have backbones and are indeed sentient beings. Or is a fishing club responsible? Am I responsible if I run over a squirrel or hit a bird in the road, which I try pretty hard not to do?

I regard myself as a conservationist. The noble Lord, Lord Randall, referred to himself as such in a previous debate. However, unlike him, I see the way this Bill is phrased as paving the way for interference in anything and everything. It has been suggested that it is a Trojan horse and that there will be mission creep. I think it will be an activists’ charter. My noble friend Lord Herbert said in another debate that we need clarity.

The Minister, for whom I have a very high regard—we go back quite a long way and he called me, I think, a “denizen” of the last Chamber we served in—said earlier today that there is a very specific role for the committee. What is that role? It is not clear to me, and I am afraid that the debates so far have not clarified the situation. I hope this amendment may go some way towards clarifying the situation: that we are responsible for those animals for which we are responsible and not responsible for those which we cannot be responsible for.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

My Lords, the next three speakers—the noble Baroness, Lady Jones of Moulsecoomb, the noble Viscount, Lord Trenchard, and the noble Lord, Lord Forsyth of Drumlean—have all withdrawn, so I call the noble Lord, Lord Mancroft.

[Lord Mancroft (Con)]

My Lords, I will speak to my Amendment 59 in this group. Clause 5(2) gives the Secretary of State the power to bring any invertebrate of any description within the meaning of “animal” and thus within the scope of the Bill—thus declaring them sentient in law. My noble friend Lord Moylan has already drawn attention to the extraordinary breadth of this new power. At Second Reading, he said:

“The clause that strikes me as most extravagant, however, is the one that gives the Secretary of State the unfettered power to declare, should he wish, that an earthworm is a sentient being. This is a power greater than that given by God to Adam in the Garden of Eden, which, as I recall, was restricted to the power to naming animals. Here, we are giving the Secretary of State the power to reclassify them almost without check.”—[Official Report, 16/6/21; col. 1921.]


I do not feel qualified to comment on the powers that God gave to Adam, so I will, if noble Lords forgive me, confine myself to this Bill.

Many noble Lords, including my noble friend Lord Randall, the noble Lord, Lord Trees, and the noble Baroness, Lady Bakewell, called for decapod crustaceans, including lobsters, crabs and crayfish, and cephalopods, including octopus, squid and cuttlefish, to be included in the scope of the Bill. Some argued this point on the basis of a film called “My Octopus Teacher” and were advised to have tissues on hand to watch it. However, the evidence contained in a tearjerker does not seem to be the best foundation for the law of the land. The law should be based on hard evidence—hard science and sound evidence—and that is where the problems on animal sentience start and lie.

While everyone agrees that animals are sentient, philosophers and scientists are still arguing about what that means. Does a dog, for example, have the same feelings as a crab, or a crayfish the same feelings as a cow? Perhaps that is why there is no definition of sentience in the Bill. Scientists are not agreed, despite the fact that in the previous debate the Minister gave us two separate definitions of sentience, although neither of them are included in the sentience Bill, which strikes me as a bit odd. So how will a committee opine on something that is neither defined and on which there is no widespread agreement, in fact, on which there is widespread disagreement?

The Government have commissioned an independent review of the sentience of decapod crustaceans and cephalopods. This amendment would require only that where the Secretary of State declares an invertebrate sentient, the scientific evidence on which the declaration is based should be published. It seems unarguable that such transparency on the science must be good, and I cannot imagine any arguments for hiding the evidence and not publishing it. If the Minister rejects the amendments, perhaps he can enlighten the Committee about why the science and the evidence should be hidden away.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

The noble Lord, Lord Howard of Rising, whose name is next on the list, has withdrawn, so I call the noble Baroness, Lady Bakewell of Hardington Mandeville.

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, the last group of amendments is quite long and seeks to limit the scope of the Bill and the groups of animals considered to be sentient.

The noble Lord, Lord Moylan, has spoken in favour of Amendment 48, which would remove vertebrates in favour of mammals, Amendment 52, which would add fish, Amendment 53, which would add birds, and Amendment 57, which would limit the classification of invertebrates to cephalopods and decapods. The noble Lord makes a claim that animals are capable of feeling pain but not other emotions, such as pleasure. I fear I do not agree. A family pet dog is very capable of showing pleasure. When I get home after a week in London, our collie is overjoyed to see me, and there is no mistaking his enthusiasm. As regards the scope of sentience, we should be led by the science available for each group of animals.

Amendment 50, moved by the noble Lord, Lord Robathan, is to apply to domesticated animals in the British Isles,

“under the control of man”

and not living wild. I am certain that he would have been supported by the noble Viscount, Lord Trenchard, if he had not withdrawn. I support the noble Lord, Lord Robathan, in not changing the wording of proposed new subsection (1)(b). He is correct: we all understand what is meant by mankind, and I am not personally offended by the use of that word. While I sympathise with these amendments, I am not sure why it is necessary to limit the group of animals to be included or excluded. It is likely that by adopting Amendment 50 in particular, some animals which are being farmed and also live wild, such as deer—not really cute ones—are likely to be treated differently depending on their status. That is likely to cause unnecessary confusion.

The noble Baroness, Lady Jones of Moulsecoomb, put her name to Amendment 51, which we support. I am speaking in particular to Amendment 48 in the name of the noble Baroness, Lady Hayman of Ullock, to which the noble Lord, Lord Randall of Uxbridge, and I have also added our names. At Second Reading, reference was made to the evidence on decapod crustaceans and cephalopods being sentient beings. I am not naturally squeamish, but I found the deliberate shocking of shore crabs to see whether they were capable of feeling and remembering pain somewhat unpleasant. The experiment having been conducted during trials, the result is conclusively that they are sentient and have some advanced cognition. Similarly, the octopus is capable of feeling and remembering pain, so I believe both groups should be included in the Bill rather than being left to be added at some later stage.

The noble Lord, Lord Hamilton of Epsom, has raised some interesting publicity on the fate of lobsters and how those destined for the restaurant trade should meet their end. Given that the vast majority of lobsters reach restaurants in a live condition, I cannot see that the Bridlington lobster trade will be adversely affected by how lobsters are prepared for the table.

I can also see that some will think that the Bill is a back door to banning angling and the shooting of game birds. I believe that we are a long way from reaching that conclusion; I would not support it if that were the case.

I fully support moves to include decapod crustaceans and cephalopods in the classification of sentient creatures. I will listen carefully to the arguments in favour of the rest of the amendments in this group and the outcomes their tablers are looking to achieve.

In response to a question on the first group, the Minister gave the impression that the inclusion of these groups is something for another Minister. I hope he can confirm that the classification of animals included in this Bill should be widened at this stage and not at some date in the future.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

My Lords, the noble Lord, Lord Hamilton of Epsom, whose name is next on the list, has withdrawn.

[The Earl of Caithness (Con)]

My Lords, I support my noble friend Lord Robathan’s Amendment 50 and have added my name to it. It would be a sensible and logical addition to the Bill. It is absolutely right that where men and women are in charge of an animal they are responsible for it being treated in the most humane way possible, but if that same animal is running free and is wild, then it cannot possibly be under the control of a human being. Therefore, the words that my noble friend wishes to include in the Bill would make the position absolutely clear. I support him on that basis.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

My Lords, the noble Lord, Lord Randall of Uxbridge, who is next on the list, has withdrawn.

[Lord Trees (CB)]

My Lords, a crucial aspect of the Bill is determining which animals within the vast animal kingdom are sentient. Crucially, of course, that depends on how sentience is defined. The Bill does not attempt to define sentience, and various expert opinions, which I respect, have suggested that that is sensible. But we can be sure that, if and when the Bill becomes law, there will be those who will start to question the limit currently in the Bill or that proposed in Amendment 57, which I support. It is almost certain that at least some scientific opinion will be arguable and credible to propose further extending the range of animals included.

Current definitions of sentience include capacity to have feelings. I know of no way of determining what animals feel, but we know that many lifeforms sense and avoid potentially harmful stimuli, which we do, of course. Although we would sense pain on that occasion, we can only guess at the feeling the animal has, but presumably it is not a pleasurable sensation. Of course it is important to consider the science, but extremely respected scientists can and do differ even when confronted with the same data.

The frontiers of what sentience is will likely shift. I listened yesterday to the evidence given to the EFRA Committee in the other place by Jonathan Birch of the London School of Economics. He is the lead author of the LSE report referred to on the first day of Committee, which has yet to be published but has been carefully considering whether to include cephalopods and decapod crustaceans as sentient beings. Professor Birch commented yesterday with respect to the definition of sentience that the science is evolving. Indeed, the Minister commented in much the same way today.

Clearly it would raise huge issues were more and more animal taxa credibly—and, indeed, scientifically—argued to be sentient. So, although I accept that Amendments 59 and 60 are improvements on the current Bill, I feel that the range of animals included in the Bill should be a political decision determined by the Secretary of State and with the complete and full consideration of Parliament, where the cost-benefit considerations can be properly weighed—taking scientific opinion into account, of course, but not being bound by it.

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[Baroness Fookes (Con)]

My Lords, I apologise to the Committee for not being here earlier in the afternoon when noble Lords debated amendments to which I added my name. Unfortunately, there was an additional meeting of the Constitution Committee, of which I am a member, meeting on a different day and at a different time. However, I am here now. I will speak to Amendment 51 in particular; in that connection, I have been asked by my noble friend Lord Randall of Uxbridge and the noble Baroness, Lady Jones of Moulsecoomb, to say that they fully support the remarks I intend to make about it.

I make no apology for wishing to see cephalopods and decapods included in the realms of sentience and not left until some future date. I am aware that the Minister is awaiting the LSE report to which the noble Lord, Lord Trees, referred. I would be interested to know from the Minister when we might expect to see that report and whether it is likely to be in time to make a decision about including these creatures in the Bill before it reaches its final stages. For my part, I believe that there is already sufficient hard evidence to make it perfectly acceptable to include them here and now.

It is interesting that, way back in 2005, the European Food Safety Authority’s Scientific Panel on Animal Health and Welfare considered these animals sufficiently sentient to be included. Since then, a lot of work has been done by Professor Robert Elwood of Queen’s University; I believe that he has provided good scientific evidence. I am happy to accept scientific evidence. I think mention was made earlier of one experiment where hermit crabs, which like to retreat to quiet places, were given an electric shock if they entered one refuge but not if they entered another. It soon became evident that they knew which one to choose and that they remembered it. Shortness of time forbids me from giving any further examples, but I firmly believe that there are good examples that give hard evidence. We know, too, that a number of other countries are ahead of us on this issue. They include, for example, New Zealand, some of the Australian states, Austria and even, surprisingly, Italy.

The final point I want to make is that I commend to the Minister the precautionary principle. Great publicity was given to it in the Environment Bill as one of five principles. It was given a good boost. I suggest that the precautionary principle is one to adopt here and now. As I understand it, it means that, if there is some evidence, you do not have to wait until something is proved to the hilt before you take action. On that basis, I have no hope that the Minister will accept Amendment 51 as it stands, but I hope for better things before the Bill reaches the statute book.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

The noble Baroness, Lady Mallalieu, whose name is next on the list, has withdrawn.

[Baroness Hayman of Ullock (Lab)]

I am speaking to Amendment 49 in my name and those of the noble Lord, Lord Randall of Uxbridge, and the noble Baroness, Lady Bakewell of Hardington Mandeville. I thank them for their support. Before I move on, I assure the noble Lord, Lord Moylan, that he has understood the purpose of my amendment completely correctly. We also support Amendment 51 in the names of the noble Baronesses, Lady Jones of Moulsecoomb and Lady Fookes.

Clause 5 currently defines “animal” as any vertebrate other than homo sapiens. Amendments 52 and 53 talk about adding “fish” and “birds” to the scope of the Bill. I know that they are probing amendments, but they are vertebrates—