European Union (Withdrawal) Bill

Lord Trees Excerpts

Report: 3rd sitting (Hansard): House of Lords
Wednesday 25th April 2018 Lords Chamber

Moved by

[Lord Trees]

40: After Clause 7, insert the following new Clause—
“EU Protocol on animal sentience (Article 13 of Title II of the Treaty on the Functioning of the EU (TFEU)
(1) Ministers of the Crown and the devolved administrations must pay due regard to the welfare requirements of animals as sentient beings in the formulation and implementation of public policy.(2) In this section—(a) “animals” means vertebrates, other than man, and cephalopods, whether under the control of man or living in a wild state.(b) “Ministers of the Crown” has the same meaning as in the Ministers of the Crown Act 1975 and also includes government departments.(3) It is for Parliament exclusively, in the exercise of absolute discretion, to hold Ministers of the Crown to account for the discharge of their duties under this section.(4) It is for the Scottish Parliament exclusively, in the exercise of absolute discretion, to hold the Scottish Government to account for the discharge of their duties under this section.(5) It is for the National Assembly for Wales exclusively, in the exercise of absolute discretion, to hold the Welsh Government to account for the discharge of their duties under this section.(6) It is for the Northern Ireland Assembly exclusively, in the exercise of absolute discretion, to hold the Northern Ireland Executive to account for the discharge of their duties under this section.(7) The Secretary of State must submit a report annually to Parliament relating to the formulation, implementation, and effectiveness of policy relating to animal welfare to reflect the duty of subsection (1).(8) The Scottish Government must submit a report annually to the Scottish Parliament relating to the formulation, implementation, and effectiveness of policy relating to animal welfare to reflect the duty of subsection (1).(9) The Welsh Government must submit a report annually to the National Assembly for Wales relating to the formulation, implementation, and effectiveness of policy relating to animal welfare to reflect the duty of subsection (1).(10) The Northern Ireland Executive must submit a report annually to the Northern Ireland Assembly relating to the formulation, implementation, and effectiveness of policy relating to animal welfare to reflect the duty of subsection (1).”

[Lord Trees (CB)]

My Lords, I begin by thanking your Lordships as I am very hungry to get on with this debate. However, if it lasts very long, I may request a private break for other purposes.

I declare my interest as a former president of the Royal College of Veterinary Surgeons and a current co-chair of the All-Party Parliamentary Group for Animal Welfare. I hope that that makes it clear that my motives for bringing this amendment are purely about animal welfare.

This amendment seeks to fix a problem and plug a gap in the legislative protection that will be afforded to animals when we leave the EU. It seeks to embed in UK law the principles in Article 13 of the Treaty on the Functioning of the EU, notably that the Government should pay due regard to the welfare of animals as sentient beings in developing and implementing policy. In that regard, putting an onus on government, it complements and augments our current Animal Welfare Act 2006.

Your Lordships may be aware of the history of this animal sentience issue but I will briefly remind the House of it. An amendment of this type was tabled by Caroline Lucas in the other place to the European Union (Withdrawal) Bill towards the end of last year, and your Lordships may remember that it was defeated by a government majority. That resulted in a substantial public and media backlash and criticism that the Government did not care about animal welfare. Many people, including myself, felt that that criticism was unjustified, as subsequent events have indicated.

The Government’s response was to bring out a draft animal welfare Bill in 2018—a very short Bill, half of which basically embodied the principles of Article 13. That was followed by an inquiry by the EFRA Committee, which reported at the end of January 2018. That applauded the spirit of the government animal welfare Bill but severely criticised its execution, and Defra is now reconsidering. We are in a bit of a pickle. There is a high level of agreement about where we want to go but no certainty about how to get there. Adoption of this amendment or a similar amendment would enable us to get to where we want to be.

--- Later in debate ---

[Lord Callanan]

My Lords, let me start by being crystal clear about the Government’s commitment to animal welfare as we leave the EU. As the Prime Minister said in another place on 22 November,

“we already have some of the highest animal welfare standards in the world, and as we leave the EU, we should not only maintain, but enhance them. We have already set out our proposals to introduce mandatory CCTV in slaughterhouses; to increase sentences for animal cruelty to five years; to ban microbeads, which damage marine life; and to ban the ivory trade to help bring an end to elephant poaching”.

The Prime Minister went on to explicitly confirm:

“We also recognise and respect the fact that animals are sentient beings and should be treated accordingly. The Animal Welfare Act 2006 provides protection for all animals capable of experiencing pain or suffering which are under the control of man”.—[Official Report, Commons, 22/11/17; col. 1038.]

The following day my right honourable friend the Secretary of State for Environment, Food and Rural Affairs set out in a Written Ministerial Statement in the other place that:

“This Government will ensure that any necessary changes required to UK law are made in a rigorous and comprehensive way to ensure animal sentience is recognised after we leave the EU”.


But, as he further noted,

“The withdrawal Bill is not the right place to address this”.—[Official Report, Commons, 23/11/17; cols. 35WS-36WS.]

In this respect I agree with my noble friend Lord Hodgson. The Government’s commitment to legislating in this area is in no doubt. I can confirm to the noble Baronesses, Lady Jones and Lady Bakewell, and to my noble friend Lady Byford, that not only have we made that commitment but we have begun work on drafting and developing that legislation.

In December, the Government published draft legislation to address the recognition of animal sentience through the Animal Welfare (Sentencing and Recognition of Sentience) Draft Bill. The public consultation on the draft Bill closed on 31 January. We have received over 9,000 responses, which the Government are analysing. The magnitude of the response highlights not only the importance and complexity of animal sentience in and of itself, but also the manner in which it is recognised in legislation.

On 1 February, the Environment, Food and Rural Affairs Select Committee in the other place published its pre-legislative scrutiny of the draft Bill, and the Government’s response to that was published earlier this week on 23 April. I do not know whether that is the consultation which the noble Baroness, Lady Jones, said she had not seen yet, but if that is the case, I will be happy to get my officials to send her a copy. However, we have responded to that consultation. In its report, the committee highlighted a number of concerns about the draft Bill, which once again serves to underscore further the complexities of the issue and why it is so important that we get this area of the law right, a point that was well made by my noble and learned friend Lord Mackay. That is what we all want, but I am afraid that the amendments before us will not achieve that, as I will outline shortly.

As previously stated, there is no question but that the Government regard animals as sentient beings. As we said in relation to this issue during the Committee stage of this Bill, we certainly agree with the underlying sentiments of amendments such as that tabled by the noble Baroness, Lady Jones of Moulsecoomb, and of course the noble Lord, Lord Trees. However, as we also said in Committee, we cannot support them.

In order that there can be no ambiguity regarding the Government’s resolve on this matter, let me be clear again that the Government intend to retain our existing standards of animal welfare once we have left the EU and, where possible and practical, to enhance them. My noble friend Lady Oppenheim-Barnes set out some important areas that we would want to consider in this respect. Perhaps I may also be clear that the Government fully recognise the level of support for our commitment to maintaining and enhancing our high standards of animal welfare as expressed not only in this Chamber and the other place but also among the general public. The groundswell of feeling on this matter is surely a testament to the UK as a nation of animal lovers who share a proud and long history of legislating to protect animals from cruelty and suffering, much of which of course predates our accession to the EU. As we move towards a new relationship with Europe and the rest of the world, we are absolutely determined to maintain our high animal welfare standards, to improve on them where appropriate, and to legislate to do so where necessary.

However, as has been said, the purpose of this Bill is to provide continuity by ensuring that we have a functioning statute book upon our exit from the EU. As I am sure noble Lords appreciate, in relation to the European Union and EU member states, Article 13 creates an obligation to have full regard to the welfare requirements of animals when formulating and implementing EU policies on the basis that animals are sentient beings. However, the underlying requirement to consider the needs of animals contained in Article 13 is limited to a small number of EU policy areas. The resulting impact of Article 13 on domestic law is therefore minimal. At its conception, Article 13 was considered by many to be a symbolic step change in our relationship with animals that would drive radical improvement in animal welfare across Europe. In reality, its impact has failed to materialise. Simply transferring Article 13 as it stands into domestic law would be a disservice to the cause of animal welfare and is not in keeping with the Government’s aim for the UK to be a world leader in this area.

The draft Bill that I mentioned earlier sets out a possible method to better enshrine the principles of animal sentience in domestic law. Notably, and unlike Article 13, the draft Bill does not seek to restrict the recognition of animals as sentient beings to specific policy areas, a change that we hope noble Lords will agree is a significant improvement. The draft Bill also imposes a clear duty on Ministers of the Crown to have regard to animal welfare.

Given the complexities that I touched on earlier, it is crucial that this issue is given the consideration and effective legislation that it deserves to avoid replicating the issues contained in Article 13. For this reason, I regret to say that we cannot support the amendment tabled by the noble Baroness, Lady Jones of Moulsecoomb. The amendment appears to seek to transfer the obligations contained in Article 13 to domestic law. However, this clause applies only to the formulation, rather than to the formulation and implementation, of law and policy. It is the Government’s view that this clause would further reduce the already limited scope of Article 13.

I would like to reassure noble Lords—and I know that the noble Lord, Lord Trees, is particularly interested in this fact—that the Government and the EU have reached agreement on an implementation period following our exit from the EU until the end of December 2020, and Article 13 would continue to apply during that period.

Turning to Amendment 40, moved by the noble Lord, Lord Trees, the proposed new clause seeks to place a duty on Ministers of the Crown and the devolved Administrations to pay due regard to the welfare requirements of animals when formulating and implementing public policy. I am grateful to the noble Lord for his contribution, and as other noble Lords have indicated, he does of course have much experience in this area. I am also grateful for the constructive engagement that he has had with the Government, and I was pleased to meet with him earlier this afternoon.

The clause also seeks to prevent judicial review for failure to comply with that duty, instead requiring the Secretary of State to account to Parliament and requiring the devolved Administrations to account to their respective legislatures. This appears designed to address concerns raised by the Commons EFRA Committee about the need to avoid an unnecessary and costly burden being imposed on the courts in the pursuit of replacing Article 13. However—and this reflects on the points made by the noble and learned Lords, Lord Hope and Lord Judge—due to the constitutional significance of legislation to this effect, very clear wording is required to remove the availability of judicial review. The current drafting of the amendment is not sufficiently clear, meaning that it is likely that policy decisions could still be subject to judicial review for failure to comply with the duty to pay due regard. Here I bow to the superior wisdom of my noble and learned friend Lord Mackay on this subject.

In addition, the Secretary of State and the devolved Administrations would be accountable to their respective Parliaments for their compliance with the duty and need to report on an annual basis on the formulation, implementation and effectiveness of policy related to animal welfare. Subsection (3) states that it is for Parliament to decide how the duty has been properly discharged. However, it is likely to be argued by some that subsection (1) creates a distinct duty that can in fact be used to judicially review policy decisions.

We are carefully considering how to take forward the recommendations made by the EFRA Committee and others during the consultation. We are grateful to the noble Lord, Lord Trees, for his proposed formulation and will consider it carefully as we decide how to take forward the measures that we have set out in the draft Bill.

I again reiterate that the aim of this Bill is to provide a framework which ensures that our impending exit from the EU occurs in an efficient and timely manner. It will urgently provide the reassurances needed in order to plan for day one as we leave the EU. As part of that function, this Bill will retain the existing body of EU animal welfare law in UK law, ensuring that the same protections are in place in the UK following our EU exit.

I hope that what I have had to say provides reassurance to the noble Lord and the noble Baroness on the Government’s firm stance on animal sentience and that the noble Lord will feel able to withdraw his amendment. However, I cannot give any false hope that I will reflect further on this issue between now and Third Reading, so if the noble Lord wishes to test the opinion of the House, he should do so now.

[Lord Trees]

My Lords, I am grateful to all noble Lords who have spoken in this stimulating and interesting debate, and I hope that it has provided food for thought. Above all, I hope that it gives the Government an impetus to solve this problem. Perhaps I may address some of the points that have been raised.

The point about adding specific issues to a general Bill of this type was made by the noble Lord, Lord Hodgson, and others. I have huge respect for the noble Lord, who is a great fighter for animal welfare. I will answer in two ways. Normally I would totally agree with the point, but these are not normal times; rather, we are living through extremely extraordinary times, and I think that extraordinary times need some special and novel remedies. The second point is that we are seeking to enable a very specific and defined issue through making a modification to the EU withdrawal Bill.

With regard to the technical objections raised on proposed new subsection (3), I absolutely defer to the expertise of the noble and learned Lords, Lord Hope, Lord Judge and Lord Brown. We sought to give Parliament authority to have oversight of how proposed new subsection (1) would operate. Parliament could define the mechanisms and the definitions, getting over some of the points made by the noble and learned Lord, Lord Brown. As the noble and learned Lord, Lord Mackay, said, it does not absolutely exclude the possibility of judicial review. It certainly reduces the possibility, which was a recommendation of the EFRA Committee report, but it does not exclude it, as the Minister acknowledged as well. We seem to have been criticised for excluding judicial review; on the other hand, perhaps we are not, so although that is an important issue it clearly needs further clarification.

No one would be more pleased than me to see the text of the amendment improved further. It could be done by the Government and tabled as an amendment on Third Reading. I had written that down before the noble Lord, Lord Rooker, made his helpful intervention, for which I thank him. No one would rather see this improved than me. I am very happy to take criticism; I am an academic of long experience and used to lots of criticism. Let us get it better but let us get it done.

Finally, turning to the main issue, I do not doubt one bit the sincerity of the Government and the Minister in wishing to see this sorted but, as has been pointed out by several noble Lords, it has already taken a long time to get this rectified. A vast tsunami of legislation is coming along the tracks, which will demand a slice of a finite amount of parliamentary time. In particular, Defra has a huge burden of legislation and adjustment to make around Brexit. While I am in no way questioning the sincerity of the Government’s desire, stuff happens. Ministers come and go. Other priorities emerge. It is particularly disappointing that the Minister has made no commitment to when we might see an improved animal welfare Bill.

Our negotiators will shortly go into battle to negotiate the trade of livestock and livestock products. They need assurance behind them so that they can argue that our welfare legislative standards are absolutely the equal of those of the rest of the EU, and so on. If we wait, I fear that we will be waiting for Godot. Noble Lords need no reminding that Godot never came, so it is with a heavy heart that I feel I must test the opinion of the House.