Nick argues that animal sentience has been recognised in our laws for 200 years

Lord Herbert of South Downs

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 [same] 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.

The full Second Reading debate can be read here.