Animal welfare after Brexit: adjustable upwards or downwards

Updated: Brexit, Article 13, and “animal sentience” in law (28 November 2017) –    Animal Law’s Expert Briefing Note

In November 2017  a vote took place in the House of Commons on a proposed amendment to the EU (Withdrawal) Bill. The Commons Library briefing paper was published on 7 December: Animal Sentience and Brexit.  The amendment  sought to incorporate into UK law a provision in the European treaty that stated the EU and its member States “shall, since animals are sentient beings, pay full regard to the welfare requirements of animals” when formulating and implementing the EU’s policies.  The vote was defeated by 313 to 295 votes.

The story of this debate has prompted a great deal of comment in newspapers and on social media, mostly critical of the UK Government’s position. The coverage reflects much of the prejudice and confusion attaching to animals reared for our use, be it for medical therapy, food or companionship. That is to be expected. But what is less excusable is that most of the coverage was  based on misunderstandings of both the Treaty Article and other EU provisions relating to animals.

So may I put in a plea for anyone who is interested to read the clear and balanced account of this issue set out by the UK Centre for Animal Law in their Briefing Note, which I will attempt to summarise here. I do urge reading the original document, which is an excellent summary of the legal and factual issues involved.

A quick reminder

When the Brexit vote came in, I wrote a post under the heading of One Trade Freedom We can Do Without. Maybe not tactful timing then, but this question is now ripe for consideration, with DEFRA secretary Michael Gove promising better protections for animals raised for food, and even for companion animals such as dogs and horses, once they are no longer trapped in the imperative of free movement of goods under the EU Treaty provisions.

EU law still treats animals as ‘goods’, and farm animals are regarded as a type of agricultural product. The EU rules on free movement of goods therefore apply to farm animals. As a result, the EU Court of Justice has ruled, for example, that Member States cannot prohibit the live export of food animals, and must take proportionate action to ensure that protesters are not allowed to interfere with such exports (see the line of cases following the protests against export of live sheep to Spain in Hedley Lomas v Ministry of Agriculture, 1993).

I noted in my 2016 post that the Brexit vote created a unique opportunity for the UK to raise its standards and prevent, amongst other things, the export of live animals for slaughter across the channel and beyond EU borders.

To their credit, EU law makers have taken on board the concerns of the scientists and campaigners  who advance the interests of non-human animals involved in  trade. Thanks to the efforts of legally respectable organisations like Compassion in World Farming, the EU was required to recognise that animals have some sort of status by virtue of their sentience. This recognition was first expressed in a ‘Declaration on the Protection of Animals’ being appended to the Maastricht Treaty, calling upon institutions of the EU and Member States to “pay full regard to the welfare requirements of animals” when drafting and implementing Community legislation on the common agricultural policy, transport, the internal market and research. The Declaration did not, however, have the status of law.

In 1999 the Treaty of Amsterdam annexed essentially the same text as a protocol to the Treaty of the European Community.

In 2009 essentially the same text became Article 13 of the TFEU.

This is what Article 13 says:

In formulating and implementing the Union’s agriculture, fisheries, transport, internal market, research and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage.

It all looks good on paper, but what does this all mean?

What does Article 13 do for animals?

It’s a mixed picture.  The legal effect of Article 13 is uncertain, and that “full regard” is not a legal standard that is well defined in case law. Even with this proviso in place, farming and research practices which inflict pain, suffering and distress on captive animals do not run foul of Article 13. Indeed, as the authors of the Briefing Note   point out, EU law permits some practices, such as the force-feeding of geese for foie gras production, which are not permitted in the UK for reasons relating to animal welfare. The authors of the report observe, unsurprisingly , that this provision has not engaged the interests of EU law enforcers:

there are no examples of the European Commission, or EU legislation, being successfully challenged in the EU Court of Justice for fail ing to give sufficient regard to animals’ welfare requirements.

Where we go from here

After Brexit we will no longer have Article 13 of the Treaty.  But this should not mean we continue selling our animals down the line.  Thank you to Animal Law for preempting this debate.

As the authors of the report point out, the focus on sentience is a distraction from the main issue.

The question as to whether an animal is sentient is a question of fact. It is nowadays a matter of undisputed scientific opinion that animals (or at least vertebrate animals) are sentient. It is inconceivable that a UK court would take the view that vertebrate animals are not sentient, or that UK law does not already recognise that animals are capable of suffering .

We need to fix things locally, particuarly with the pressure on planning authorities to authorise concentrated meat production on the US model. Nothing Article 13 would prevent such a development. But a specific obligation written into law, to pay full regard to the “welfare requirements of animals”, whilst not the best answer, at least provides a platform for better husbandry, sanctions for abuse, and pressure on food retailers to attend to the provenance of their meat.

After the UK ceases to be an EU Member State, it will no longer be bound by the Treaty and Article 13 will therefore cease to apply in the UK. As the Briefing Note points out, unless steps are taken to incorporate an equivalent measure into UK law, animals will therefore lose “a degree” of legal protection which presently applies to them. But importing Article 13 is not the answer. A key issue, say the authors of this report, is the difference between the mechanics of EU law and the way the common law and statutory law intermesh in the UK.  On animal sentience, the authors of the report point out that these kind of “non-operative” statements are common in EU law; they set out the purposes of the legislations operative provisions, providing reasons for requirements and prohibitions. But in the UK an act of parliament is entirely made up of operative provisions. Such an Act cannot declare certain facts to be true. Nor can a statute state the purpose of its operative requirements.

 It would therefore be difficult to carry the words “since animals are sentient beings” directly into UK primary legislation. Thus, if it were thought appropriate for UK legislation to expressly recognise the sentiency of animals, then a way would need to be found to do this through an operative requirement, such as creating a statutory duty for public bodies to recognise animal sentience.

Such a move would be possible, say the authors of the report, by creating a duty on the UK government to pay full regard to the welfare requirements of animals when formulating and implementing policies. Indeed the UK parliament could go further than Article 13 by not carving out a caveat to protect religious practices such as slaughter without pre-stunning. One of the problems incidentally with NC30 – the amendment to the Withdrawal Bill tabled by Caroline Lucas MP  – is that it preserved this religious/cultural practices caveat.

More effective than a general recognition of sentience, argues the report, would be a statutory duty

to pay full regard to the need to ensure that animals are protected from pain, fear, hunger and distress, and are able to exhibit their natural behaviours

This duty could also be expressed in the statutory objectives of a new environmental protection commission, as suggested by Gove, with a remit that would include setting and improving animal welfare standards for farm animals and possibly also for animals in other settings.  As the report points out, the content of amendments to the Withdrawal Bill is a political question. The UK Centre Animal Law is an apolitical organisation and its proposals, quite rightly, express no position on the withdrawal of the UK from the EU. Far better to concentrate on the primary legislation that is to follow in post-Brexit Britain.

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