Animal Welfare (Sentience) Bill [HL]

Lord Trees Excerpts

Committee stage
Tuesday 20th July 2021 Grand Committee

[Lord Hamilton of Epsom (Con)]

I support my noble friend Lord Howard of Rising’s amendment, to which I have put my name. It strikes me that the Government have not really thought this through very carefully, because if this is going to be retrospective and it will be possible for this committee to review all legislation that has already been passed, then this will provoke a need for massive new legislation stretching into the future. The Government have the option, I suppose, of ignoring recommendations from the animal sentience committee, but if they do not ignore its recommendations, then of course that means they will inevitably get involved in more legislation in the future. I am not sure that that was really the intention of the Bill in the beginning. Surely, the original point of the Bill—not that I am a great supporter of it—was that there should be some form of oversight of government legislation to ensure that the sentience of animals was being taken into account, but if it works retrospectively, then of course it has unlimited capacity for creating ever more work and expense, as has been mentioned by my noble friend. Therefore, I very much support his amendment.

[Lord Trees (CB)]

My Lords, I shall speak briefly to Amendments 18 and 23, which carry my name, and in support of Amendments 17 and 29. These all rule out scrutiny of policies established in the past and are consistent with my Amendment 3, which we discussed on the first day in Committee, which laid out the function of the committee and confined it to considering policies subsequent to the committee’s establishment. The arguments for not having any retrospective powers have been well made by others.

[Baroness Deech (CB) [V]]

One of the worst things in this Bill, with its miasma of uncertainty, is its retrospective effect. Along with others, this amendment is designed to cure this defect. We have to stop the committee considering, let alone making suggestions to change, policies that were established in the past, that are currently being lawfully implemented and on which people base their livelihoods, food and sporting pursuits.

As it stands, the Bill would allow the committee to reopen of its own volition policies that have been in place for perhaps a century, as some of our animal welfare laws have. It could make recommendations designed to undermine the use of animals in medical research, the practice of killing animals according to Jewish law and country sports, already hedged about with qualifications and reached by consensus a long time ago. We might accept that this committee, expert or not, will consider future proposals, but we cannot let it loose on the established law.

I say this not wholly as an advocate of the positions I have mentioned but as a reminder that retrospective legislation and changes of policy are to be assumed to be a bad thing. They may undermine settled patterns of life and livelihood, taking away certainty of freedom from criminal and civil prosecution. We cannot allow this committee to propose legislation to take away the validity of decisions made in the past and in good faith by people relying on the law as it was. In the case of the traditional Jewish way of killing animals for food, it has been permissible ever since the Jewish return to England some 350 years ago and it is established policy under UK regulations to permit it, as it was under EU legislation—although not that it could be relied on, as I explained in my last speech on this when I pointed out that the European Court of Justice allowed the Belgian prohibition of Jewish non-stunning methods.

As a legal situation, at common law, there is a presumption against retrospectivity. Article 7 of the Human Rights Act prohibits arbitrary prosecution, conviction and punishment. At common law, there is also a presumption against interference with vested interests. A leading judgment on this was in the case of Wilson v Secretary of State for Trade and Industry in 2003; one of the judges in that case, my noble and learned friend Lord Hope, is happily still with us. The judgment explained that there is a powerful presumption against statutes changing the substantive law in relation to events in the past; this is precisely what could happen if the powers of this new committee are not curbed.

There is also a presumption against legislation affecting vested rights unless Parliament is expressly making a new start for the future. So, on the one hand, recommendations by this new committee to change existing practices would be a waste of time in that, if they were acted on, they would be contrary to the rule of law; on the other hand, the Bill would accord better with human rights and the rule of law by making it express that its actions must be confined to future policy.

I hope that this amendment will be supported by the Government; otherwise, I can see legal action looming ahead on the horizon. This also applies to Amendments 18, 21, 23 and 29, all of which I support.

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[Viscount Trenchard (Con)]

My Lords, although I agree with the noble Baroness, Lady Jones of Moulsecoomb, and my noble friend Lord Caithness that the committee should look at policy in the round, I regret that I cannot support Amendment 20 in her name and that of my noble friend Lady Fookes. I also strongly support the objective of my noble friends Lord Forsyth of Drumlean and Lord Hamilton of Epsom in their Amendment 2, previously debated, that the duties of the animal sentience committee could better be given to the existing Animal Welfare Committee.

As my noble friend Lord Forsyth said on 6 July:

“It feels as if this is just a bit of window dressing, a bit of virtue-signalling, which is actually going to create great problems for the Government.”


My noble friend the Minister told the Committee that the Government

“want the animal sentience committee and the Animal Welfare Committee to have a constructive relationship, but it is not quite as simple as saying that we could hand over the ASC’s responsibilities to the AWC with no legal powers to back them up.”

That would of course have been far better.

I have the highest regard for my noble friend Lord Benyon, but I found his explanation as to why we need two committees completely unconvincing. It is a disproportionate and unnecessary response to the Government’s manifesto commitment. Those animal rights activists who support the Bill claim that the public want it. If you tell the man or woman on the street that there is an Animal Welfare Committee already and ask if he or she thinks we should have a second committee, you will get a different answer. My noble friend said:

“It is important to remember that the two committees have distinct roles. The Animal Welfare Committee exists to provide advice to Defra and the devolved Administrations, whereas we are establishing the animal sentience committee to scrutinise policy decision-making across the whole of government. Any relationship between the two would need to support these two distinct functions.”—[Official Report, 6/7/21; cols. GC 337-8.]


I do not think these functions are distinct in any way. Without exception, noble Lords who spoke on 6 July asked him to come back with at least some definition of the committee on Report.

I also support Amendment 16, in the names of the noble Earl, Lord Kinnoull, and my noble friend Lord Hannan of Kingsclere, which stated that the new requirements to consider animals as sentient beings in the formulation of policy should be limited to those areas covered by Article 13 of Title II of the Lisbon treaty. UK Parliaments have recognised the sentience of animals since the Cruel Treatment of Cattle Act 1822, and our animal welfare standards go far beyond what we were required to do under EU law. If the Government really think that they must establish a new quango of such dubious merit and opaque purpose, the four amendments in this group will at least restrict that quango’s activities to examining new policies under consideration rather than opening up the entire existing statute book to reconsideration at great expense.

Although I was unable to speak in the earlier debate, let me say that I also support Amendment 31, which would provide exceptions for religious rites and cultural traditions. Without that, a large part of Japanese cuisine —to which I am partial, having lived in that country for many years—would probably be deemed illegal.

I have added my name to Amendments 21 and 22 in the name of the noble and learned Lord, Lord Etherton. Amendment 21 could have been grouped with amendments that we have debated previously, which also sought to prohibit the committee reporting on established government policy. Amendment 22 would require the committee to obtain the consent of the Secretary of State before committing taxpayers’ funds.

I cannot support Amendments 27 and 41, in the name of the noble Baroness, Lady Jones of Moulsecoomb, because they assume that the committee’s answer to the question is binary—that is, yes or no. The existing draft at least raises the question of the extent to which the Government are having due regard to animal welfare in the formulation of policy. Surely this is an instance where the proportionality principle should be applied.

I strongly support Amendment 38, in the name of my noble friend Lord Caithness, to which I have added my name. If we must have two overlapping committees, at least the animal sentience committee should consult the Animal Welfare Committee and publish a note explaining its opinion on any report.

In Amendment 44, my noble friend Lord Mancroft seeks to find out what the Government might do in cases where the committee finds that they have not had due regard to the animal welfare consequences of any policy. Earlier, we debated the incorrect assumption of the Bill that any effect would be adverse. Obviously, any policy designed to make it easier for gamekeepers to cull predators has positive effects for the prey of those predators. I support my noble friend and look forward to the answer from my noble friend the Minister on this question.

I cannot support Amendment 46, in the name of the noble Baroness, Lady Young of Old Scone, because subsection 2(b) of the proposed new clause makes it clear that she intends that the committee’s remit should extend across government, whereas I believe that it should be limited to those areas that were previously covered by Article 13 of Title II of the Lisbon treaty, as I mentioned. Furthermore, the amendment raises the question of the other activities that the committee may have undertaken during any financial year.

There seems to be no limit to the scope and remit of the Bill. Unless it is appropriately restricted, the committee will need huge resources.

[Lord Trees (CB)]

My Lords, I will speak to Amendments 27 and 41, in the names of the noble Baronesses, Lady Jones of Moulsecoomb and Lady Fookes; they also carry my name.

These two amendments are linked. Amendment 27 asks the animal sentience committee to answer the question asked in Clause 2(2)

“in the affirmative, or … in the negative.”

For example, if the animal sentience committee states that the Government have had all due regard to animal welfare in the formulation and implementation of policy, Amendment 41 would remove the requirement in Clause 3(1) for the Secretary of State to lay a response before Parliament. This seems to be a common-sense reduction in the obligation of the Secretary of State while retaining the fact that the report of the animal sentience committee, whatever it concludes, remains a matter of public record. It removes the burden of work on the Secretary of State.

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[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.