Animal Welfare (Sentience) Bill [HL]

Earl of Kinnoull Excerpts

Committee stage
Tuesday 6th July 2021 Grand Committee

[Lord Trees (CB)]

Thank you, my Lords. I should like to speak to Amendment 3 in my name and Amendment 16 in the names of my noble friend Lord Kinnoull and the noble Lord, Lord Hannan.

Amendment 3 will sit in Clause 1, which introduces the animal sentience committee, and it seems right, proper and appropriate that the clause then goes on to describe the committee’s remit. That is to some extent covered in Clause 2(2), but my amendment goes further than that clause in two important respects. First, it stresses:

“The function of the Committee is to determine whether, in relation to the process of the formulation”—


and so on. It introduces the word “process”, which is critical to understanding the function of the committee. It is not influencing the policy or commenting on it. It can comment, and it has a remit to comment, on the process by which policy is formulated and implemented with regard to considering animal welfare implications. That is important. It may be a statement of the obvious, but it is perhaps sometimes worth stating the obvious.

Amendment 3, which would extend Clause 2(2), also refers to its remit to look at policy subsequent to the establishment of the committee, which would therefore have no right to retrospective review of policies previously formulated or implemented, even if they are in process at the time. This is an issue that a number of subsequent amendments on the list repeatedly allude to. It would therefore seem sensible to include that provision right at the beginning as a limitation on the committee’s remit.

Those are the main points: the amendment sets out the committee’s remit right at the beginning of the Bill, emphasising that its role is to comment on process, and would limit its remit to policy being formulated and implemented after the committee has been established.

Perhaps I may quickly speak to Amendment 16. It would restrict policy, which the Bill does not do; the Bill refers to “any government policy”, which is a huge remit. The amendment would restrict the policy to areas that were defined in Article 13 of the Lisbon treaty, which to some extent is the progenitor of the Bill. It seems sensible to make the scope of the committee more manageable, reasonable and pertinent by restricting that remit.

[The Earl of Kinnoull (CB)]

My Lords, I declare my interests as set out in the register of the House, particularly those in respect of farming. I am chair of the UK Squirrel Accord and chair of the Red Squirrel Survival Trust. I apologise that I, too, was unable to speak at Second Reading, but I was in the Chamber for a good chunk of it, including for the winding speeches, and I have, of course, read Hansard.

I will speak to Amendments 16 and 35 in my name and briefly to Amendment 3 in the name of the noble Lord, Lord Trees. My amendments are probing. Animal sentience, of course, is not in EU retained law as it was a treaty obligation and so was not preserved by the European Union (Withdrawal) Act 2018. Article 13 of Title II of the Treaty on the Functioning of the European Union was therefore lost in the departure process from the European Union.

EU retained law is an interesting concept. In fact, it is a snapshot of EU law at 31 December 2020, which was then transposed into UK law. Of course, if you then want to make a change, changes are made expressly and with due process. That due process would seem to me to involve asking a number of questions. What was unsatisfactory about the previous arrangements? What are the benefits of the new arrangements that are proposed? What has been done to ensure that there are no unintended consequences? The noble Lord, Lord Hannan, in his Second Reading speech, summarised that by saying,

“to what problem is this Bill a solution?”—[Official Report, 16/6/21; col. 1918.]

I suppose I have merely tried to split that out. Thus, everything in EU retained law is anchored in the position quo ante as at 31 December last year. Things go on from there, but we knowingly make changes after that by going through a due process.

Before I go on to make some points, I thought it was probably interesting for everyone to understand the history of Article 13 a bit and how much Article 13 is a child of UK thinking. The original precursor appeared as a non-binding declaration as part of the 1991 Maastricht treaty, when, of course, there was a Conservative Government. It was proposed by the British. In 1997, with a Labour Government, it was promoted in the treaty of Amsterdam to being a binding protocol. In 2007, again under a Labour Government, it moved from being a protocol to an article in the Lisbon treaty. In each of those changes it was essentially a cross-party UK effort that put it there and placed sentience at the core of policy formation in the EU. It is a product of British thinking and part of our legacy within the EU.

This Bill is simply not consistent with Article 13 in two broad ways. Article 13 has the policy boundaries, which the noble Lord, Lord Trees, has just referred to. It also has the balancing factors that need to be taken into account when the issue is at question. Thus, I ask my three questions. What was unsatisfactory about the previous arrangements? What benefits are there to be found in the new arrangements? What has been done to ensure that there are no unintended consequences?

I hope to hear from the Minister in due course, but I went back and looked at the debates in Hansard for the European Union (Withdrawal) Bill in 2018. I looked at the Conservative manifesto. I have here under my left elbow the Explanatory Notes associated with this Bill and, of course, I have read and reread the Minister’s speech on 16 June at Second Reading. I am afraid that there is not really an answer to those questions. I have to say that, in the absence of that, Amendment 16 would restore the policy area boundaries, as the noble Lord, Lord Trees, has just said, and Amendment 35 would restore the balancing factors that must be considered. I think that the case for doing that is pretty strong.

In closing, I generally have a lot of sympathy with the amendments in this group, not just the one from the noble Lord, Lord Trees, but his amendment in particular is consistent with my logic and, if he comes back with it on Report, I hope to sign it.

--- Later in debate ---

[Lord Benyon (Con)]

My Lords, I would never have the temerity to say that anything was perfect in this world, and legislation is a messy process. I assure my noble friend that I believe that we are sailing the right path between creating something that is unwieldy and a burden on government and something that is—I hope he will agree when it is established—proportionate. It can range around government looking at important things and will inform the way decisions are made.

My noble friend mentioned the risk of judicial review. The Bill places additional legal duties on Ministers only in so far as it requires them to submit written responses on the parliamentary record to the animal sentience committee’s reports within three months of their publication. The Secretary of State for Environment, Food and Rural Affairs is additionally legally required to appoint and maintain an animal sentience committee. This means that the Bill creates only two additional grounds for judicial review: a failure by the relevant Minister to respond to the committee within three months and a failure by the Secretary of State for Environment, Food and Rural Affairs to establish and maintain an animal sentience committee. I hope that gives my noble friend some reassurance.

[The Earl of Kinnoull (CB)]

My Lords, I add my thanks to the Minister for the very interesting speech he has just made; I can see myself reading Hansard very carefully for a lot of what he said. I have just one question, on which I was hoping for some help from him. Quite early in his speech, he had some very warm words for Amendments 31 and 35, but I did not understand whether they would result in his amending the Bill or were just warm words. Could he clarify that?

[Lord Benyon (Con)]

I can assure the noble Earl that I am open to discussions on any area of the Bill where I feel we can make it better without creating hostages to fortune. I do not want to create a feeding frenzy for lawyers by putting anything in legislation that will increase opportunities for judicial review or any other legal measure. I will clearly be having many discussions with noble Lords from across the House between now and Report. I hope that what will emerge and what we will send to the other place will be a coherent piece of legislation.

Animal Welfare (Sentience) Bill [HL]

Earl of Kinnoull Excerpts

Report stage & Lords Hansard - part two
Monday 6th December 2021 Lords Chamber

[The Earl of Kinnoull (CB)]

My Lords, I apologise to the House for having been detained in the Moses Room earlier in another debate. Much of what I might have said has been put far better by my colleagues who have signed this amendment, in the shape of my noble friend Lord Trees, the noble Lord, Lord Moylan, and my noble friend Lady Deech, who has been incredibly helpful. I thank them very much. I also found the speech of my noble and learned friend Lord Etherton very persuasive on the basic and essential point.

I remind the House of a question I put directly to the Minister in Committee, right at the end, about what happens next. He said:

“I do not want to create a feeding frenzy for lawyers by putting anything in legislation that will increase opportunities for judicial review or any other legal measure.”—[Official Report, 6/7/21; col. GC 294.]


That is what set me thinking about whether or not, in the true construction, this provision increased or decreased the possibility for judicial review. We just heard from my noble and learned friend about that, and about how the European Convention on Human Rights would work. I will not rehearse all the arguments or restate what others have said but it is my settled view that, if we do not restore something that was the law of the land until midnight of 31 December last year and then stopped, there is a strong probability—particularly with the arrival of this committee—of increased action in judicial review and increased action under the ECHR. That seems to me to trip the very test the Minister set himself in Committee. That is why I put the amendment down again and why I strongly believe we need to accept it.

A very interesting point was made by the noble Baroness, Lady Fookes. I need to think about it, but in my bones I do not feel it is a problem and, obviously, nor do my colleagues. I am annoyed with myself for not having had the time to talk to colleagues on the Labour Front Bench to explain more carefully why this is not some sort of attempt to wreck anything but is a genuine point; we are trying to make sure that the Government can govern and are not dragged to the courts the whole time on what are, after all, a series of very emotive issues. We heard from the noble Lord, Lord Sheikh, about that in Committee.

My simple hope, having discussed this at length yesterday—I am very grateful for the Minister’s time—is that we can have a meeting after Report, and I very much hope the Labour Front Bench will be there, where we can discuss this carefully, including taking into account the good point made by the noble Baroness, Lady Fookes, and come to some sort of resolution. As I said, the advice from people who care about this and genuinely know about it is that the very test the Minister set himself in Committee would be tripped if we did not accept this amendment. I hope that, if he cannot accept it immediately today, we will not have a messy vote but agree that this is the one issue to be taken away and discussed between now and Third Reading.

[Lord Strathclyde (Con)]

My Lords, I support very much my noble friend Lord Marland in his amendment, both the principles behind it and its detail, and the amendment from the noble Baroness, Lady Deech, which was extremely well argued by her and supported by the noble and learned Lord, Lord Etherton, the noble Lord, Lord Trees—modestly—and the noble Earl, Lord Kinnoull.

It strikes me that the Government have got themselves in a bit of a muddle on all this. The more I have listened to noble Lords behind me who obviously think the Government have got it wrong, the more I wonder why they are legislating in this way. If he had wished to do so, could the Secretary of State not simply have set up a committee by declaration, to do everything the Government want it to and try out some of these extremely complicated and difficult issues which have been raised not just today but in Committee? I feel it would have been a much better way to progress thinking and policy on this Bill and would not have made the sort of mistakes which I have a horrible feeling the Government are heading into by putting forward primary legislation in this manner, when we all know that changing primary legislation is incredibly difficult.

I hope my noble friend the Minister has listened very carefully to the noble Earl, Lord Kinnoull, who made a very fair offer of discussion on this extremely complicated policy matter, with the aim of coming forward with some rationally thought through amendments at Third Reading, which I would very much support.