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Is Defra backing down on sentience?
  1. Josh Loeb

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Last year the government said that it intended to write animal sentience into UK law ahead of Brexit. It is now apparent that this deadline will not be met.

However, that doesn’t necessarily mean no progress has been made. Those with knowledge of discussions Defra has been having with animal welfare organisations believe that the department is sincere in wanting to introduce the legislation – it’s just a question of when and how.

In theory, it all seems so simple. The Treaty on the Functioning of the European Union states in the first part of Article 13 that animals are sentient beings and that the EU and its member states must pay full regard to their welfare when making policy. So, why not just copy and paste that into UK law?

That’s problematic because, since a treaty is not the same thing as a law (it is akin to a constitution), the easiest way to replicate Article 13 would be to insert it into the UK constitution – but since the UK does not have a written constitution, that’s not possible.

Second, if UK law were to stipulate that the government must pay full regard to the welfare of animals when making policy, it would leave the government vulnerable to new types of onerous legal challenges and, in so doing, slow down the machinery of government.

The fear is that progress might end up being stymied through a series of vexatious complaints purporting to be brought in the interests of animals but really serving to advance particular vested interests.

Some critics might quite reasonably wonder what all the fuss is about. After all, it’s not as if life is entirely rosy for animals in the EU. Bullfighting still happens in Spain, foie gras production goes on in France and fur farms continue to operate in Poland and Finland – all despite Article 13.

Such practices are permitted because of a get-out clause in Article 13 stipulating that the duty to take full account of animal welfare must be balanced against a duty to permit customs, traditions and religious practices to continue.

Yet, others insist that Article 13 has been used to achieve small, incremental changes that have benefited large numbers of animals. It has been used to secure regular rest stops and access to water for livestock in transit from Bulgaria (an EU member state) across its border with Turkey (not a member state) and onto farms or abattoirs in the Turkish interior, for example.

Defra is under pressure to get a solution to animal sentience amid an atmosphere of heightened emotion and politicisation. When MPs voted against an amendment to incorporate Article 13 into the Withdrawal Bill in November last year, it became one of the most tweeted about news stories of that year. Hyperbolic articles online even suggested that Conservative MPs were heartlessly denying animals could feel pain.

The veterinary profession – to its credit – has been much more measured. Around 1200 vets and vet nurses and students last year signed a letter calling for the government to ensure there is a duty on the state to have due regard for animal welfare in the development and implementation of policy, but the BVA also condemned sensationalist coverage that ‘failed to explain a more complex reality’.

One way through the legal thicket might be for Parliament – not the courts – to be made sole adjudicator on questions about whether the government is complying with its duty to take animals’ welfare into account. That seems to be the direction in which Defra is now moving. Some will deem it unsatisfactory, others may regard it as a pragmatic compromise.

Article 13 looks set to provide for ongoing moral and legal quandaries

Article 13 is a single sentence in an EU treaty but looks set to provide for ongoing moral and legal quandaries, regardless of whether it is replicated in UK law in time for Brexit.

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