Animal Welfare (Sentience) Bill [HL]

Lord Herbert of South Downs Excerpts

Consideration of Commons amendments
Thursday 7th April 2022 Lords Chamber

[Lord Moylan (Con)]

My Lords, I want first to thank my noble friend the Minister, who has put an inordinate amount of effort into discussing concerns about this Bill with those of us who have them. I congratulate him not only on becoming a grandfather but on landing this Bill, as he does today.

However, it remains a very bad Bill and I think it is worth repeating why. It is not because it entails a huge administrative reorganisation; in this House, we take huge administrative reorganisations in our stride. We have been reorganising the National Health Service over the past few weeks, which is possibly the largest organisation in the world, certainly in Europe. The Government’s defence of the measure is essentially that it is administratively very minor: it just sets up a committee; it is an advisory committee, and Ministers will make final decisions—“There is nothing to see here; move on”. But the important part of the Bill is not its administrative effects but the fact that it is a declaratory Bill. It declares something in the law of the United Kingdom for the first time to be true—that is, that animals, vertebrates and certain non-vertebrates, are sentient. I know that this appeared previously in a treaty that we were party to, but it moves it on a considerable step to incorporate it into domestic law in this way.

It is worth asking why that declaration matters. It matters because it is very much part of the agenda of the animal rights movement to achieve agreement on three things. The first is that animals are sentient; the second is that sentience is the sole basis for judging moral conduct; and the third, as a consequence of that, is that humans and animals are to be treated on the same basis in moral terms. That is a complete upturning of our established view of moral conduct; it is a completely new anthropology. This Bill is therefore profoundly anti-human. It opens the door to a moral calculus in which people can ask the question: how much chimpanzee suffering is equivalent to a human baby suffering? That is why it remains a very bad Bill. It is a Bill that we will come to regret.

[Lord Herbert of South Downs (Con)]

My Lords, I draw attention to my interests as declared in the register. I thank my noble friend the Minister for indicating that the Government wish to agree with these sensible amendments, which merely import principles which previously existed in relation to sentience provisions in the Lisbon treaty and will create a better balance in the Bill and in the operation of the sentience committee.

I fear that I rather agree with my noble friend Lord Moylan that this remains a bad Bill and it stores up trouble for the future, but we have made all those points before. Even if the Government came to this late, they are wise to have accepted the view of the Commons that some balance needed to be injected into the measures, so we are doing the right thing by agreeing with them. I thank my noble friend for everything that he has done to get us to this place.

[Lord Bellingham (Con)]

My Lords, I endorse thoroughly the remarks of my noble friends Lord Herbert and Lord Moylan. I congratulate the Minister on entering this whole discussion with great good humour and with a certain amount of patience as well, because we have certainly asked him many questions and put him under quite a lot of pressure, but I hope that at all times we have been courteous to him, too.

My starting point was exactly the same as that of my noble friend. This Bill really was not necessary. If one looks at the raft of legislation in this country that protects and stands up for animals, one sees that it is one of the most effective legal frameworks anywhere in the world. Some of those laws date back to the start of the last century. Flowing from those different Acts of Parliament have been numerous regulations, such as the Welfare of Farmed Animals (England) Regulations, which are pretty comprehensive.

So the Bill was not necessary, but in the context of realpolitik, I understand why the Government decided that they had to move down this route. The Bill has certainly been improved by the Commons amendments, which I welcome. I once again thank the Minister for what he has done to help improve the Bill substantially from where it was when it started out.

Animal Welfare (Sentience) Bill [HL]

Lord Herbert of South Downs Excerpts

3rd reading
Monday 13th December 2021 Lords Chamber

Moved by

[Lord Herbert of South Downs]

At the end insert “but that this House, while strongly supporting measures to improve animal welfare, regrets the way in which the proposed Animal Sentience Committee is to be established”.

[Lord Herbert of South Downs (Con)]

My Lords, I draw attention to my positions in the Countryside Alliance, including chairman, which I have declared in the register of Members’ interests. I regret detaining the House. I appreciate that there is important business next on the Police, Crime, Sentencing and Courts Bill. However, as the Animal Welfare (Sentience) Bill leaves the House, I feel that there are important issues that need to be addressed. I would like to make two points at the outset.

First, none of what I am going to say is an attack on my noble friend the Minister. He is a good friend and a good man who has been given the impossible job of defending a Bill about which many of us have considerable reservations, and has done so with unfailing grace and humour. I am genuinely sorry to differ from him on this measure. Secondly, every one of us in this House wants to promote animal welfare. I certainly do. I feel strongly that animals must be treated properly but, whatever the good intentions of those promoting the Bill, I fear that it is not a wise measure as drafted. In fact, if we take a step back, it is actually an incredible measure. It seriously proposes that the effect of any government policy on the welfare of animals may be considered by an unfettered statutory committee and that Ministers must respond to that committee’s reports.

When the Bill started, that measure applied only to vertebrates; now it applies to cephalopod molluscs and decapod crustaceans. That was one of the few amendments made to the Bill, and that was by the Government. At the height of a pandemic which has killed thousands of people and cost our economy billions, we have decided to devote time to passing a law to ensure that no government policy can hurt the feelings of a prawn.

The Government rejected every other amendment put to them. We pointed out that sentience is not actually defined in the legislation; apparently that does not matter. What matters is that Ministers must have regard to sentience, even if we do not know what it actually is. We asked for safeguards to ensure the expertise of the committee’s members. We were told that such protections were not necessary. We asked for constraints to the committee’s scope. We were told that limits to the committee’s unfettered remit were not necessary either. Crucially, we asked why the balancing provisions in the Lisbon treaty, which specifically exempt religious rites, cultural traditions and regional heritage, were not included and why the Bill goes so much further than the EU measure it claims to replace. We were told that this balancing provision was not necessary either. In fact, apparently no change was necessary.

The Government have been able to ignore every concern expressed, largely on this side, by relying on the kindness of strangers—uncritical support for the measures that would have guaranteed the defeat of any amendment. I wonder whether the Government will come to regret that.

I am sure that Ministers do not intend that this new committee will get out of hand. I am sure they intend to appoint sensible people to it. I am sure they believe their own rhetoric when they say that Ministers decide so they will resist the committee’s recommendations if necessary. This is of little reassurance when the Government have already capitulated in the face of a social media campaign to introduce the committee in the first place. It is like saying, “Don’t worry, we are going to make sure the burglar won’t take anything from your house, but we are going to let him in to make helpful suggestions about your security”. This committee will set its own priorities. It will decide its own agenda. It will rove across government at will and demand answers to its recommendations. The Government may believe that they are answering public concern by setting up the committee in this way, but I fear they are making a massive rod for their own back.

This measure departs from the usual practice of taking careful and specific steps to ensure animal welfare by injecting a broad and ill-defined principle into our public administration. The danger is that, in doing so, it will effectively if unwittingly hand an institutional footing to the animal rights agenda. We are giving leverage and power to that single-issue ideology, which can be uncompromising and extreme, without thinking through the consequences.

We are trying to beat a mutating virus. We are trying to level up, to build back better. We need Government to take better decisions, and more quickly. We need to get things done faster, yet we are putting in place a barely constrained mechanism which is simply bound to glue up government. I am afraid that I differ from my noble friend on that. At best, even with sensible people in place, the committee will put spanners in the works because frankly that will be its job. It will make it harder for Ministers to deliver, to take difficult balancing decisions, which they sometimes must, or to ignore populist sentiment. At worst, without the necessary safeguards in place, the committee risks becoming a Trojan horse, used especially to attack wildlife management farming or the well-being and way of life of our rural communities. We know that this is a real risk because the animal rights agenda is in plain sight, and because its proponents are already incessantly abusing judicial review to force government to do its will.

It is usually this House which provides a robust check on measures propelled by populist wins, yet we have passed the Bill with no amendment, except to extend its scope to beasts such as cuttlefish. Some noble Lords may remember that, 30 years ago, it was only the sober intervention of this House which prevented the then Dangerous Dogs Bill from inadvertently making it a strict liability imprisonable offence for a dog to cause injury by accidentally knocking someone off their bicycle. That Bill had foolishly been driven through all its Commons stages in a single day, but today we are showing ourselves to be more inclined to bend without sufficient thought to populism, and now it will fall to Members of the House of Commons to address the deficiencies in this proposal.

We all want to advance animal welfare, but the sentience provisions in the Lisbon treaty had little or nothing to do with the succession of admirable legislation which for over a century has been passed by this Parliament. In fact, with Brexit, we have the freedom to pass laws to protect animals which would not have been possible before—to address puppy smuggling, for instance. Even before this sentience Bill has been passed, other government Bills to protect animals have been introduced or announced, which only goes to prove that this Bill, creating this committee in this way, is not necessarily to protect animals.

I have offered these remarks in the hope that even as the Bill leaves this House, there is still a chance that its serious deficiencies will be addressed and that we will return to focusing on specific workable measures to improve the welfare of animals in ways which we all want and can all support. I beg to move.

[Lord Robathan (Con)]

My Lords, I pay tribute to my noble friend the Minister who, with good humour throughout, has defended what is frankly almost indefensible. He has done extremely well, and I hope that he is congratulated by the higher ranks of the Government. I associate myself entirely with the excellent points made by my noble friend Lord Herbert. I will not repeat them, but I will repeat that this is a shockingly bad piece of legislation which should be an embarrassment to the Government.

--- Later in debate ---

[Lord Benyon (Con)]

My Lords, I thank my noble friend Lord Herbert for his contributions to today’s proceedings and earlier debates on the Bill. I have previously addressed at length a number of the points he raised, so I do not intend to detain the House long. He made an incredibly good speech, and some of his points struck home—I felt a bit like that painting of St Sebastian.

The weakest argument he put, echoed by my noble friend Lord Cormack, seemed to suggest that this House cannot hold two thoughts in its head at the same time. Of course, the priority of this House, the Government and all of us is to deal with the pandemic, but the idea that you cannot produce legislation on any other subject, which is the logical conclusion of his argument, is one that I am afraid I do not agree with. But he made other very good points.

I suggest to the noble Baroness, Lady Mallalieu, that this concept of animal sentience was on the statute book; we had it under Article 13 of the Lisbon treaty. The debate, which will continue in another place, is about the degree to which we transpose that. I understand the points she made.

I make an absolute assurance to the noble Baroness, Lady Deech, who is not here. The noble and learned Lord, Lord Etherton, made a very good point, and I respect him and his knowledge. On the point about judicial review, we have done all we can to limit the duties that a Minister has to abide by. That is where judicial review really hurts Ministers—if they fail to follow a duty in the Bill—but I absolutely concede that organisations will continuously try to judicially review the Government, on this legislation and elsewhere. The question is: will it be successful? Will it be permitted to be taken forward? Just the week before last, an organisation wanted to take the Government to judicial review and was refused by the courts.

Finally, on religious rites, I made a promise on Report and continue to make that point. The noble Baroness, Lady Deech, the noble Lord, Lord Sheikh, and others made genuine points about concerns in the communities they come from or sought to represent in their words on this Bill. I and the Government take these concerns really seriously and want to give them every assurance that the Government’s policy remains to support them on these matters of religious importance and on how they wish to have animals slaughtered. We will make officials and Ministers available to give those added reassurances.

I again thank all those involved to date in the Bill’s passage and hope my noble friend will be persuaded not to push his amendment.

[Lord Herbert of South Downs (Con)]

My Lords, this has been a good airing of the issues; we have all said our piece. I have no wish to try the patience of the House, which wishes to get on to other matters, any longer. I hope that Members of Parliament will heed what has been said, and that in due course we will have an opportunity to consider amendments that they make, so that this House performs the job of being a revising Chamber—because the Bill has not so far been revised at all. With that, I beg leave to withdraw my amendment.

Amendment to the Motion withdrawn.

Animal Welfare (Sentience) Bill [HL]

Lord Herbert of South Downs Excerpts

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

[Viscount Ridley (Con)]

My Lords, I shall just comment very briefly on what my noble friend has just said. I disagreed with him on one point, when he said that there were no leading lights in the science of sentience. I draw his attention to a wonderful book published by Oxford University Press just a few months ago by the great Cambridge psychologist Nick Humphrey. Nick says, after 60,000 words of argument, as he put it to me in an email:

“My conclusions are quite radical—and at odds with both academic and popular wisdom. I argue that the only animals that have evolved to be sentient are mammals and birds, and not all of these. We really don’t need to worry about lobsters or octopuses.”


He did not add, “or crocodiles”.

So I think that there is developing science on this, and my noble friend is quite right that it needs to be peer-reviewed and investigated. I think that we will find the goalposts move on what is sentient, and that it is not a given that everything with a backbone is sentient or, indeed, that some of the decapods and others are as sentient as we have heard in recent years.

[Lord Herbert of South Downs (Con)]

My Lords, I remind the House of my various interests in the Countryside Alliance, including chairing the organisation. I apologise for being unable to take part in this Report stage earlier, but I was isolating and was only just released less than two hours ago. However, I was watching the proceedings very carefully, and it seemed to me that there was an emerging pattern—a serial rejection of all the amendments proposed by my noble friends and others, whether on issues of retrospectivity, on the composition of the committee, or on the matter of the risk that this committee is going to present of more judicial review. I could only admire my noble friend’s élan in batting away each of these suggestions, which came from former Ministers, from a former Leader of the House and from a former leader of the party—and from a brace at least of Queen’s Counsel, as well as suggestions and advice from a former Master of the Rolls. They were all swatted away elegantly by my noble friend.

I simply wish to say that my noble friends are sentient beings, too, and I believe that we are being treated cruelly. There is a case for reference to an independent committee to make advice as to whether all these suggestions should have been taken more seriously. Perhaps, if Ministers dismiss the advice of the animal sentience committee with the same alacrity, we will have little to fear from its future proceedings.

However, the truth is that there is less of a risk to specific aspects of farming or other activities that we can identify now than, I judge, of gluing up government with a constant process of analysis and rejection, followed by review, of proposals made by the committee. Indeed, there is to be not just one committee but two and, as we heard earlier, they will refer matters to each other, in a description that reminded me very much of a passage from “Yes Minister”. Ministers sometimes, when they occupy two briefs, as I once did, are encouraged to write letters to themselves in their dual positions. Now we have two animal committees that will be encouraged to refer matters to each other. This is an overcorrection because of a promise made earlier.

The suggestion of my noble friend Lord Moylan that, at the very least, we should ensure that the advice that the committee gives is grounded in the soundest possible science and is peer reviewed seems eminently sensible. I also join his modest suggestion that this might be the exception and the one proposal that the Minister might entertain.

[Lord Hannan of Kingsclere (Con)]

My Lords, I support my noble friend Lord Moylan’s amendment. Why do we have delegated committees? Why do parliamentary bodies contract out part of their function? The only answer, it seems to me, is that you need very specific accumulated scientific expertise—in the field of economics, or whatever—that you would not reasonably have from a legislative Chamber.

When I made the point on an earlier amendment that there is no such thing as a disinterested expert—we all have our prejudices and opinions and scientists are still human beings—the noble Baroness, Lady Hayman, said that I was Luddite or, worse, “Goveian” in my attack on all experts. But this is surely having it both ways. We cannot say, “We must have this outside committee but there is absolutely no reason for them to base their recommendations on reputable science”. If we are not prepared to require the experts to rule on the basis of where the expertise is, on what possible basis are we creating this committee at all?

Animal Welfare (Sentience) Bill [HL]

Lord Herbert of South Downs Excerpts

Committee stage
Tuesday 6th July 2021 Grand Committee

[Lord Benyon (Con)]

I am grateful to my noble friend. I will write to him about the committee’s make-up and remit and repeat any points he may have missed in our conversations or in earlier proceedings about how we feel this committee should exist. Of course, we are going into a spending round and these issues will be reflected in that, but I have declared openly how the resources will be found.

I will correct my noble friend on one point. When I said “highly regulated”, I was talking about how we use animals in scientific research. That is something we can all be extremely proud of. In animal research, we have one of the most highly regulated science communities. I share his desire for less bureaucracy and less regulation for the farming community. There are changes afoot that I hope he will be extremely pleased about. We will see a simpler range of policies, which will make life easier for rural businesses. When I referred to high regulation, I did so with pride that we have an active and vibrant scientific community based on research into animals, and that it is properly regulated by probably the best regulation in the world.

[Lord Herbert of South Downs (Con)]

My Lords, I declare my interest with various positions in the Countryside Alliance.

I would be grateful if my noble friend the Minister could elucidate this point: the thrust of almost all the contributions by noble Lords today has been that the Bill’s scope is too broad and that the powers of the committee that is to be set up insufficiently constrained. The architecture being established is far broader than that which exists for the Animal Welfare Committee—an issue we are about to explore—and the effect of the consideration of sentience will be far greater than the declaratory effect that sentience had in the provisions in European law. As has been raised, all this suggests that there is a greater potential for judicial review.

So far as I could see, in responding to all these points the Minister said that the remit would remain broad, sentience would not be defined and the committee’s powers would not be constrained. My simple question is therefore: does he accept the views expressed by most noble Lords this afternoon that the Bill is imperfectly drafted, that the committee’s powers are too broad and that it needs to be constrained? Is that important position accepted or not? Is the Minister dismissing all the views expressed by way of amendments today and essentially saying to us that the balance struck in the Bill is perfect?

[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.

Animal Welfare (Sentience) Bill [HL]

Lord Herbert of South Downs Excerpts

2nd reading
Wednesday 16th June 2021 Lords Chamber

[Lord Herbert of South Downs (Con)]

My Lords, I declare my interest as set out in the register and my position in the Countryside Alliance.

In 1789, the great philosopher, Jeremy Bentham, said of animals that

“the question is not, Can they reason? nor, Can they talk? but, Can they suffer? Why should the law refuse its protection to any sensitive being?”

In truth, Parliament has answered that question for two centuries by passing a canon of animal welfare laws. We have always accepted that animals can suffer, that they are sentient—indeed, I would argue that the question of sentience is a simple matter of fact: vertebrates clearly are sentient, and that is recognised in the body of laws we have already passed.

However, there is a question about whether simply adding “sentience” to the law as an expression, as this Bill does, will advance animal welfare legislation or treating animals in the way that is intended. We need to consider a number of questions as we examine the Bill.

The first is to distinguish clearly between animal rights and animal welfare. I submit that every one of us is subscribed to the principles of animal welfare: that we should treat animals humanely, compassionately and properly. The idea that animals have rights which are in some way akin to human rights is much more problematic, and obviously so. Most of us—not all—who agree and feel strongly that animals must be treated properly and humanely, also eat animals and probably support their use in scientific research. The distinction between animal rights and animal welfare is important when it comes to considering the difference between wild and domestic animals. It is obvious, for instance, that a domestic animal under our control deserves to be watered and fed properly, and if we do not do that we break the law and rightly can be held responsible for such cruel treatment, but with a wild animal, even if it is on land that a farmer owns, that farmer can have no responsibility for feeding and watering it—it is not under his control. It is only when wild animals are brought under domestic control or the control of individuals that they deserve the protection of the law. Instantly, we see that the doctrine of animal rights is unhelpful in guiding us as to how we should treat animals.

Secondly, we need to advance the protection of animals on the basis of principle and evidence and ensure that we can as far as possible detach what is often powerful emotion from the debate. The exercise of emotion in any aspect of lawmaking can lead to bad law—parliamentarians doing things because, in the worst case, they think it is popular or they are driven by their own sentiment. We have to be more careful and forensic than that because there are competing interests to be balanced. This Chamber above all chambers needs to exercise the cool reason that is sometimes absent from the consideration of the elected Chamber, driven as it is by more populist urges—I say that having been a Member of the other place for 15 years.

Thirdly, the principle must be right that Ministers make decisions and do not subcontract them to unelected bodies, even where they are appointed by those Ministers. It is one thing for Ministers to be guided; it is another to passport decisions to bodies that cannot properly be held to account for them. It is an irony that the Bill introducing this principle—albeit constrained by a committee—is being brought forward just as the Government are seeking to constrain judicial review precisely because of their concern that it is interfering with ministerial responsibility. Ministerial responsibility for decisions matters because Ministers are accountable to Parliament and Parliament is in turn accountable to the people, while unelected committees are not. We have surely just understood the importance of that. The dangers were perfectly illustrated by the misleading campaign against the decision initially not to import the decision on sentience from the EU.

We have had animal welfare laws in our country for 200 years, since the Cruel Treatment of Cattle Act was introduced. Our animal welfare standards go far beyond the minimums set by the EU. I respectfully disagree entirely with the proposition of the noble Baroness, Lady Jones, that, somehow, animal welfare in this country was advanced by our subscription to the EU and the principle of sentience that it introduced. That is simply not the case. We need to remember that the principles of sentience are not in dispute. That we should treat animals properly is not in dispute. But what matters is that Ministers and Parliament should ultimately decide, and that we should not find ourselves subcontracting decisions to bodies that are accountable neither to us nor to the public but can be pressured by outside interests.