the uk journal of animal law€¦ · 307802 - england). registered charity: 113462 the views...

The UK Journal of Animal Law

Volume 2, Issue 1 August 2018

A Journal of Animal Law, Ethics & Policy

ITALYA case study of conviction forkilling endangered species

ANIMALSENTIENCEDoes the UK's new clause needclaws?

DECAPODSRead the winningentry from A-law's2018 Student Essay Competition

VEGAN RIGHTSCan human rights emancipatenonhuman animals?

Editor’s note

The protection of biodiversity in Italy: A case study ofconviction for killing endangered species

“Consider whether animal welfare legislation should beextended to include decapods.”

Case Materials and News

Animal sentience in UK law: does the new clause needclaws?

Comment: Why the International Vegan Rights Alliancelooks to human rights to emancipate nonhuman animals

Address: A-law, c/o Clair Matthews, Monckton Chambers,1&2 Raymond Buildings, Grays Inn, London, WC1R 5NR

Email: [email protected]

Website: www.alaw.org.uk

Trustees: Paula Sparks, Alan Bates, Jeremy Chipperfield Simon Cox, Christina Warner, Jill Williams, Mike Radford,Abigail Scott

Editor: Jill Williams

Editorial Panel: Chris Draper, Angus Nurse, Iain O'Donnell,Gareth Spark, Darren Calley, Simon Brooman

Contributors: Carla Campanaro, Jessica Allen, CharlotteHughes, Katie Thomas, Josephine Burnett, Simon Broomanand Dr Jeanette Rowley

Registered Office: UK Centre for Animal Law, EmstreyHouse (North), Shrewsbury Business Park, Shrewsbury,Shropshire, SY2 6LG. A company limited by guarantee (No307802 - England).

Registered Charity: 113462

The views expressed in this Journal are those of the authors and do not necessarily represent those of A-law.

A-LAW JOURNALA U G U S T 2 0 1 8

CONTENTS

EDITOR'S NOTE

Finally, Volume 2 Issue 1 is published! It isworth the wait. We received great supportfor the new journal style with oneexception: the three columned text format, which some found difficult to read. Thisissue reverts to a two-columned format,which should be easier on the eye.

In this issue, Carla Campanaro provides acase study of the illegal killing of NorthernBald Ibis (a protected bird species) in thecontext of the Italian legal system. SimonBrooman discusses the complex issue ofsentience, including the difficultiesencountered during the Brexit debates oflast year. Jeanette Rowley, founder of theInternational Vegan Rights Alliance,explores how veganism could bepromoted by the law and in turn, begin thedeconstruction of speciesism.

The 2018 Student Prize Competition waswon by Jessica Allen, an aspiring lawyerwho is currently completing her post-graduate studies at Oxford University. Heressay considers whether animal welfarelegislation should be extended to includedecapods.

Grateful thanks to Charlotte Hughes, KatieThomas and Josephine Burnett for puttingtogether the Cases and Materials section.As always, appreciation to Paula Sparks,Chair of A-law, for her quality controlguidance and the hard work of our peerreview team.

Jill Williams Editor

Email: [email protected]

1-8

9-12

13-20

21-31

32-36

.

1

The protection of biodiversity in Italy: A case study of conviction for killing endangered species Carla Campanaro, Lawyer, PhD student at Rome University and visiting researcher at Oxford University, Legal consultant to Lav and Waldrappteam LIFE+ Reason for Hope project.

Summary

1. The European Life+ Project; 2. Northern Bald Ibis(NBI) and its International and European legalprotection; 3. The damage to the endangered speciesas an irreversible European environmental damage; 4.The Italian legal framework about the protection ofbiodiversity; 4. The Livorno case, a conviction for killingof endangered species: 4.1. The Northern Bald Ibiskilled over the past few years in Italy; The history ofGoja and Jedi, a conviction for illegal killing; 5.Conclusions.

1. The European Life+ Project.

The project of reintroduction of the Northern Bald Ibis (NBI) in Europe started on January 1st, 2014 and will end on December 31st, 2019. Austria, Italy and Germany participate in the project. The project aims to protect the NBI, a critically endangered bird species. The Austrian Förderverein Waldrappteam is the coordinating beneficiary of the project, and shall pursue the objectives of the project together with the other partners. The project is based upon a ten-year-long feasibility study in accordance with the International Union for Conservation of Nature (IUCN) guidelines, which proved possible sustainable livelihoods for colonies of Ibis in Europe. In particular, the task is to found breeding colonies of NBI in Salzburg and Baden-Württemberg (Bavaria). Those colonies will use a common migration route to the wintering area in Southern Tuscany (WWF Oasi Laguna di Orbetello). The

project aims to reach a population size of minimum 120 birds in order to exceed the so-called “Minimum Viable Population Size”. The project focuses on activities for the scientific conservation of the bird through guided migration. The birds are monitored by using GPS trackers, especially during the migration flights. In Italy, over the years, the project has been and still is strongly threatened by poaching actions, which have caused extensive damage to the colony: 18 birds have gone missing and 15 have been hunted since 2011, as well as a substantial economic loss for the project (€234.352,12 only in 2016).

The Italian Authority has approved the reintroduction of the Northern Bald Ibis in Italy with prot.0027720-09/04/2013-PNMIII (proposal LIFE12BIO/AT/00143- Reintroduction of the Northern Bald Ibis) signed by the Director General of the Directorate General for the Protection of Nature and Sea of the Ministry of the Environment of Italy.

In this document addressed to the European Commission (International Affairs Directorate Life Nature), the Ministry of the Environment of Italy has clearly stated its support for the project and the reintroduction of NBI in Europe, founding wintering

‘…the project has been and still is strongly threatened by poaching

actions, which have caused extensive damage to the colony…’

UK Journal of Animal Law | Volume 2, Issue 1 August 2018

2

areas for the species in Italy. Furthermore, in the above document, it committed to meet the orders that fall within its responsibility to designate new protection areas (SPA special protection areas), in full coordination with the Region of Tuscany, until the end of the project.

2. Northern Bald Ibis (NBI) and itsinternational and European legal protection.

NBI is listed on the 2001 Red List as a critically endangered species (IUCN version 3.1).1 The International Union for the Conservation of Nature (IUCN) is an international non-governmental organization with official United Nations Observer Status. It compiles the IUCN Red List of Threatened Species (also known as Red Data List), which gives information on the critically endangered species.2

Another NBI-protection international agreement is the Convention on International Trade of Endangered Species (CITES). CITES was made applicable throughout the European Union by adopting regulations such as Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein, and Commission Regulation (EC) No 865/2006 of 4 May 2006 laying down detailed rules concerning the implementation of Council Regulation (EC) No 338/97 on the protection of species of wild fauna and flora by regulating trade therein. NBI is included in Appendix I to CITES,3 which lists critically endangered species. Trade and killing of these species are prohibited. In fact, they are prescribed the highest degree of protection. Furthermore, NBI is included in

1 http://www.iucnredlist.org/details/22697488/0 2 The Red List of 2012 was released on 19 July 2012 at The United Nations Conference on Sustainable Development 2012, also known as Earth Summit, Rio+20, or Rio 2012).

Appendix I to the Convention on the Conservation of Migratory Species of Wild Animals (also known as the CMS or Bonn Convention) ratified in Italy by Law No 42 of 25 January 1983 Ratifying and Implementing the Convention on the Conservation of Migratory Species of Wild Animals, with Annexes, adopted in Bonn on 23 June 1979.

Of course, NBI is also protected by the European legislation, namely Directive 2009/147/EEC on the conservation of wild birds which provides the protection of wild birds in Europe. Therefore, in accordance with the abovementioned rules and the European project, it follows that, pursuant to Birds Directive, Member States – such as Italy – are prescribed to protect birds, including NBI.

The damage to the endangered species as an irreversible European environmental damage

The damage to the fauna, particularly to the endangered species, resulting from conduct, such as poaching, which infringes international and European law on protection of biodiversity and which causes death or injury to protected species may result in concrete and irreversible environmental damage. The legal content of the notion of damage to fauna has to be established in relation to the special protection that the European directives (Birds Directive and Habitat Directive) give to biodiversity, as well as in connection to Directive 2004/35/EC on environmental damage, according to which the damage occurs even if only one animal under special protection has been injured, killed or captured.

In the numerous cases of the NBI killed in Italy, the infringement of the protection legislation - i.e. injuring, capturing, killing NBI - caused irreparable damage to the wild fauna, endangering the species and causing environmental damage. The Directive on Environmental Damage states that preventing and remedying environmental damage “contributes to implementing the objectives and principles of the

3 https://cites.org/eng/app/appendices.php.

‘In the numerous cases of the NBI killed in Italy, the infringement of

the protection legislation… caused irreparable damage to the wild fauna, endangering the species

and causing environmental damage.’


3

Community's environment policy as set out in the Treaty” and provides in Article 2 a notion of environmental damage as, inter alia, “damage to protected species and natural habitats.”4 Article 3, subparagraph 1(b) provides that the Directive shall apply also to damage to protected species and natural habitats caused by any occupational activities other than those listed in Annex III, and to any imminent threat of such damage occurring by reason of any of those activities, whenever the operator has been at fault or negligent. In line with the aforementioned principle of prevention, which the Single European Act included in Article 174 of the Treaty establishing the European Community, the Directive regulates preventive actions (Article 5) as well as remedial actions (Article 6).

As to preventive actions, in accordance with Article 5, the Directive states that, where environmental damage

4 Directive on Environmental Damage, Article 3, subparagraph 1, letter a «environmental damage»: a) damage to protected species and natural habitats, which is any damage that has significant adverse effects on reaching

has not yet occurred but there is an imminent threat of such damage occurring, the operator shall, without delay, take the necessary preventive measures. The competent authority – the public body designated by the Member State to implement and monitor the Directive, which in this case is the Ministry of the Environment – may, at any time, itself take the necessary preventive measures. As to remedial actions (Article 6), the competent authority may take these measures itself, “as a means of last resort”, where the offender cannot be identified.

3. The Italian legal framework on theprotection of biodiversity

Law N. 157 of 11 February 1992 on “the protection of warm-blooded wild fauna and on hunting” protects wild fauna in Italy. According to this regulation, which transposes the Birds Directive as well as the Paris

or maintaining the favourable conservation status of such habitats or species. The significance of such effects is to be assessed with reference to the baseline condition, taking account of the criteria set out in Annex I.


4

Convention of 18 October 1950 and the Bern Convention of 19 September 1979, in Italy wild fauna belongs by right to the Italian State and its protection is in the interest of the national and international community. The aforementioned law5 obliges the State and the local authorities to take the necessary measures to ensure the effective protection of birds, including NBI. The infringement of Articles 1 and 2 of Law No 157 of 1992 applies the sanction referred to under Article 30(b) of Law No 157 1992, which provides for imprisonment of two to eight months or a fine between 900 and 2500 euro for the killing, destruction, capture, removal, detention of protected wild animal species listed in Article 2. When applied, such criminal penalty is ridiculously low. Moreover, the law provides certain circumstances for the option of immediate payment extinguishing prosecution as well as for an option to treat the offence as one, as referred to in Article 131-bis C.C.

Legislative Decree No 121 of 2011 - implementing the Environmental Crime Directive (2008/99/EC)6 and the Directive on ship-source pollution (2009/123/EC),7 as well as implementing the enabling Law No 96/2010 (Community law 2009)8 - introduced Article 727-bis of the Criminal Code, which provides fines for “the killing, destruction, capture, removal, detention of protected wild animal or plant species”. In the case of protected wild animals, it provides for e imprisonment of one to six months or a fine up to EUR 4,000.00, “save where the act constitutes a more serious offence” or “in a case other than those provided for by law” and “except for cases where the conduct concerns a negligible quantity of such specimens and has a negligible impact on the conservation status of the species.”

Subparagraph 2 establishes that a criminal offence is committed by “Whoever, outside the allowed cases,

5 Law N. 157 of 1992, Article 1-bis provides that: ‘The State, Regions and autonomous Provinces, without any new or incremental charges for the public finance, shall take the requisite measures to maintain the population of the species referred to in Article 1 of Directive 2009/147/EC of 30 November 2009 of the European Parliament and of the Council at a level which corresponds in particular to ecological, scientific, touristic and cultural requirements, while taking account of economic and recreational requirements, and ensuring that all the measures being taken will not lead to a deterioration of the conservation

destroys, takes and holds specimens belonging to a protected wild flora species …”, except for the safeguard clause referred to in the last part of Article. Article 733-bis, Subparagraph 2 specifies that “For the purposes of the enforcement of art. 727-bis of the Criminal Code, protected wild fauna or flora species are considered those set forth in attachment IV of the Directive 92/43/CE and attachment I of the Directive 2009/147/CE”.

This Article does not seem to respect the concern that the European legislator expresses in recital 12 of the Directive on the protection of the environment through criminal law, under which “As this Directive provides for minimum rules, Member States are free to adopt or maintain more stringent measures regarding the effective criminal law protection of the environment. Such measures must be compatible with the Treaty”.

For this reason, Article 727-bis C.C. as well as Law 157 of 1992, Article 30(b) (which provides penalties for the killing of a protected species) are considered as not reflecting the content of the Directive on the protection of the environment through criminal law, while the introduction of crime in case of killing or destruction of protected wild fauna would be necessary. Otherwise, even remaining within the penalty, at least it would be appropriate to extend the current penalties provided by Law No 157 of 1992 excluding the immediate payment extinguishing

status of the birds and their habitats, subject to the provision of Article 9, paragraph 1, letter a, and first and second intends of the same directive’. 6 Dir. 2008/99/EC of the European Parliament and of the Council, of 19 November 2009, protecting the environment by means of criminal law. 7 Legislative Decree. No 121/2011, published in the Official Journal No 177 of 1 August 2011, available on www.lexambiente.it . 8 Legislative Decree. No 121/2011, published in the Official Journal No 177 of 1 August 2011.

‘The current penalties for killing and destruction (where fines and

imprisonment are not joint) appear to be ridiculously low…’


5

prosecution and including a joint penalty of fine and imprisonment up to three years, in line with the enabling law.

The current penalties for killing and destruction (where fines and imprisonment are not joint) appear to be ridiculously low, since they are subject to immediate payment extinguishing prosecution pursuant to Article 162 and Article 162bis C.C. (half of the highest penalty). It means that capturing a protected species would cost to the culprit only EUR 1,500.00 (where the immediate payment extinguishing prosecution is applied), extinguishing also the offence. In other words, the Italian law provides only an economic penalty for a widespread offence, while the European Community ask strong penalties for such offence.

In conclusion and in line with the current national criminal law framework protecting animals, it seems necessary to withdraw the penalties that punish the killing of protected species (Law 157 of 1992, Article 30, letters b, c, g), which are now obsolete.

In fact, today they bring unjustified and illogical limitation to the crime set out in Chapter IX-bis of the Criminal Code (Article 544-bis, which criminalises the killing of animals) and they need to be applied also to the killing and destruction of protected species, as it would be otherwise illogical, discriminatory and unjustified. The inappropriateness of the current regulatory protection measures against poaching appears to be confirmed by the European Commission, which has opened an EU pilot procedure (EU pilot 5283/13/ENVI) on the ineffective protection of wild birds. At this time, it is still not known whether the Italian State will align its regulation. In response to this EU pilot, the Italian Government approved a “National plan against birds poaching” on 30th March 2017, by State/Region Conference (CSR), which provides a future series of measures to tackle Italian poaching.

In the light of the reconstruction carried out, to this day, waiting for possible improvement by the Plan mentioned, the Italian general rules regarding the framework for sanctions on the killing of protected or endangered species appears to be completely unfit for purposes. New penalties with real deterrent effect should urgently be laid down, including through

ancillary measures for the withdrawal of a firearms licence or of a hunting licence as well as by making the trade associations more responsible.

4. The Livorno case, a conviction for killing ofendangered species.

4.1 About the NBI killed in Italy.

Illegal hunting in Italy causes about 70% of the mortality to the reintroduced NBI population. Since all NBI carry GPS‐transmitter, the species becomes an indicator species for the threat of illegal hunting in Italy. We assume that for other endangered migratory bird species along the Italian flyway the rate of losses by illegal hunting is the same or even higher, in absence of certain data at the moment.

Data collected from the team of the Project strongly indicate that poaching is undertaken mainly by people who also hunt legally, during the hunting season.

In October 2014, a four-year-old male NBI named Hella, who belonged to a population of about 40 reintroduced NBI, was found dead in the province of Livorno, Tuscany. An X-ray of the bird showed pellets in the body, a clear indication of illegal hunting as the cause of death. The province of Livorno and Tuscany became a major hot spot for illegal hunting on this highly-endangered bird species. Also in 2012, a further migratory NBI named Domino was shot near Cecina, just 30 km north of Hella´s locality. This bird survived due to emergency surgery but could never again be released due to the heavy violations of one wing.

Two years earlier, in 2012, two NBI, named Goja and Jedi, where shot dead during autumn migration. This incident happened just 6 km north of the place where Hella was shot. The culprit was convicted in September 2016, but some days after, in the autumn of 2016, five more NBI were shot in Italy. The financial damage to the European reintroduction project LIFE+ Northern Bald Ibis is estimated at 234.000 Euro. This demonstrates that conviction alone cannot counteract poaching in Italy; the law needs more instruments.

Notwithstanding all of these illegal killings, the legal measures against the perpetrators are still hesitant, as in the case of Tara, one of the birds shot near Vicenza


6

with a damage of 70.400 Euro, where in a first step the Public Prosecutor asked immediately for the dismissal of the investigation. There is a serious risk of dismissal of the case before detailed investigations have been started, and often the authorities never begin detailed investigations because Tribunals have few resources to dedicate to tackling poaching.

4.2 The history of Goya and Jedi, a conviction for illegal killing

As mentioned above, in October 2012, two Northern Bald Ibises, called Goja and Jedi, were shot dead during autumn migration in Tuscany. The culprit was a hunter from Tuscany who was definitively convicted by the Third Criminal Section of Supreme Court on the 1th June 2017, 5 years after the killing.

The two birds were an important part of the project. Goja was raised by human foster parents in the context of the Waldrappteam project and was trained to follow a microlight aircraft to perform a human-led autumn migration in 2009. It was the first bird ever to come back by itself to the breeding area of Burghausen (July 2011), and in autumn 2011 it returned to the Tuscany by itself. That made the bird an extraordinary individual in the project, which raised a lot of international attention.

Jane Goodall, one of the most famous conservationists in the world as well as an UN messenger of peace, became a honorary godfather for Goja (the name Goja comes from Godall and Jane). In April 2012, the bird returned again by itself to the breeding area, and in October 2012 it departed from the breeding area with two juvenile birds. Each bird carried a GPS tracker; this allowed a member of Waldrappteam to follow them by car. On 13th October 2012 between 08:30 am and 09:00 am Goja and Jedi were shot. The member of the staff who was following them arrived onsite at about 09:30 am and this was the key of the trial, as we will see later. Goja died in the arms of the member of staff soon after, due to a heavy injury to the neck.

Jedi was raised by its biological parents under the breeding programme in Bavaria. In October 2012, Jedi and another juvenile bird departed from the breeding area; they followed the experienced migrant Goja to

the south, and they crossed the Apennine. The second juvenile bird lost contact with the group. Jedi continued to follow Goja and they were shot at the same time by the same rifle, in the same location. Jedi had such heavy injuries, with a broken leg and a broken wing. When it was brought to the LIPU veterinary center of CRUMA in Livorno, it was still alive, but it died three days later due to the heavy injury.

The veterinary centre performed X-rays on both birds, revealing the presence of many pellets in both bodies. At the time, no complete autopsy was made on the bodies during the investigation, but the Livorno Tribunal and the Third Criminal Section of Supreme Court considered the X-ray acquired by the police to be evidence that the two birds died from the shots.

Thanks to the GPS trackers, which all birds that are part of the project wear on their backs, these two animals were detected only a few minutes after they were shot, while they were still alive. Of course, as soon as the member of the project noticed the unusual stop during the flight at 9.00 a.m., she ran to the spot localized by the GPS and discovered that the birds. This was vitally important, as it allowed her to testify in detail regarding the scene of the crime to the police, the public prosecutor, and the judges, when the trial begun.

Approaching the scene of the crime the member of staff saw two hunters hunting from a hunting lodge in a fenced area. One of them (the culprit) was collecting some birds already shot. The two hunters refused to open the gate to help her to find the birds. Only when she met another hunter nearby the scene of the crime (but outside of the gate), who spoke to the other

‘The programme staff found the two birds shot on the ground,

close to each other and very close to the hunting lodge… Since birds

of this species usually fly very close to each other, we were able to find out that they were killed by

the same shot.’


7

hunters inside the area, did they decide to open the gate.

The programme staff found the two birds shot on the ground, close to each other and very close to the hunting lodge, as shown by the photos taken by the Provincial Police. Since birds of this species usually fly very close to each other, we were able to find out that they were killed by the same shot. Thanks to the immediate and operative support from the Provincial Police of Livorno, called by the member of the programme staff, the offender was subsequently identified; he was a member of an Italian hunting association. In the meantime, Italian national and local media were giving great emphasis to the news of the killing.

Provincial Police of Livorno decided to hear the testimonies from all of the hunters who were around the place where the birds were shot, including the two hunters on the hunting lodge. As for the source of the shot, the Provincial Police run a great investigation, using the precious GPS data collected by the member of the project. Through the analysis of the GPS, the trajectory and the point of fall of the animals as well as the location of their finding, it turned out that before their death, the birds transited to a height of 60 meters from the soil and right above the fixed hunting system n. 7078, in the vicinity of which (50 meters away) theywere found.

Documentary inquiries revealed that the hunting system belonged to one of the hunters (who was convicted of shooting the birds) and that he had an authorization to hunt right in that area. Moreover, he and his friend were there on the day of the killing. The certainty that the origin of the shot was in the shed comes from the overlapping of the geographic coordinates and the photograph of a part of the GPS tracks, from which it emerged that the subjects had been had fallen vertically right nearby the hunting system fixed shipment. On the basis of this evidence, the hunter was sent to trial.

During the investigation, police excluded the possibility that someone else could had been near the hunting lodge, because of the Italian rules about hunting distance. This established that that the only hunters

present on the area at the moment of the killing were the two hunters on the hunting lodge. Moreover, during the shooting, one of them was on the ground. Then the Public Prosecutor ordered a search of the flat of the hunter identified and investigated, where the police found many rifles and bullets of the same kind as the one which killed the birds. During the investigation, the police underlined the impossibility for anyone to see the birds in flight because they were flying very high and the vegetation was blocking the view from below. They could have been seen only by climbing on the hunting cabin.

Unfortunately, the first hearing began only in April 2015, 3 years after the killings, and there were many delays due to procedural reasons and to the condition of the Livorno Tribunal. During the first hearing, the hunter’s lawyer tried to finalize the case by an extrajudicial comparison, asking for the application of the “oblazione”, which a procedure is provided by Italian Criminal Code, where the crime is settled paying a fine. This procedure may be applied in case of “contraventions”, i.e. criminal provision considered as “less serious”.

Unfortunately, the Italian legislation considers crimes against wild fauna and endangered species a “contravention” and, therefore, it is a general practice by the Tribunals to apply the “oblazione”. In the first hearing, LAV (a NGO for animal rights) - which was a civil party at the trial - opposed this and, due to the relevance of the case, the Tribunal rejected the “oblazione”. The hunter appealed this point at the Supreme Court, claiming that the Livorno Tribunal did not justify in detail its decision to deny him the “oblazione”, but the appeal was rejected. During the hearings (many were postponed for procedural

‘Unfortunately, the Italian legislation considers crimes

against wild fauna and endangered species a

“contravention” and, therefore, it is a general practice by the Tribunals

to apply the “oblazione”.’


8

reasons), public officials, the hunter, and the members of the team were heard. Police underlined that it is a duty for a hunter to distinguish hunting animals from non-hunting animals. It would have been very easy to distinguish the birds they were hunting (woodpigeons) from NBI, as ibises are completely "unmistakable".

Since the offence was considered only a “contravention”, a procedural cause of non punishability called “prescription” might have been applied after 5 years from the killing. In order to avoid such situation, LAV and Waldrappteam asked the Tribunal to schedule the hearings as soon as possible. Finally, in September 2016, the hunter was found guilty of the crime of killing and sentenced to a fine of 2,000 euro and his hunting license was withdrawn.

With the Judgement No 2027 of 13 September 2016, the Livorno Tribunal convicted the hunter to a 2000-euro penalty for the infringement of Articles 1 and 2 of Law No 157 of 1992 and the related sanction referred to under Article 30(b) of Law No 157 1992, which provides the imprisonment of two to eight months or a fine between 900 and 2500 euro for the killing.

The Tribunal had no doubt about the criminal liability of the hunter in accordance with the evidence collected. Thanks to GPS data and the flight coordinates data, it was possible to identify the exact spot where, at 9.00 a.m., the fatal shots were fired. It matched the hunting system n.4078, where the hunter was. This was also confirmed by the ballistic test and by the police, who stated that the deadly shot could not come from the ground since there were too many trees obstructing the view. According to the judgment, it was impossible for the hunter not to recognize the Ibis from the other birds, as they are unmistakable. The Tribunal also dismissed the request to apply a procedure called “option of minor nature of the offence” as referred to in Article 131-bis C.C. This procedural institute is provided by art 131 of the Criminal Code and it is a substantial reason for non-punishability, where the judge may evaluate the “importance” of the crime.

With this important judgement, the Tribunal denied the use of this institute because the culprit killed an endangered specimen protected by international rules and by a European project.

The convict appealed to the Supreme Court, which, on June 1 2017, confirmed the condemnation and thus created a unique and essential precedent in the fight against illegal bird hunting. This condemnation, at the Supreme Court level, is one of the greatest achievements of the LIFE+ reintroduction project, because it makes the Northern Bald Ibis a flagship species against illegal bird hunting.

5. Conclusions

A vital need for the sustainable reintroduction of a migratory NBI colony and for the survival of the other endangered migratory bird species along the Italian flyway is the elimination of losses due to illegal bird hunting and poaching in Italy. This judgment proves that, thanks to the LIFE + Reason for Hope project and its related important activities, it has been possible to identify the poacher, through the permanent GPS monitoring of all individuals, by escorting the birds whilst flying through Italy during the hunting season and thanks to a great job of Police, Public Prosecutor and the NGO that were civil part during the trial.

But this is not enough, and further joint efforts are required, particularly from Italian institutions, and a change of the legislation is needed, for example to prevent the possibility for a perpetrator to avoid a criminal case by paying a minor fine, by strengthening the controls and training for police and public prosecutors for poaching investigations. This includes, among the other things, the establishment and training of a task force along the migration route in Italy, as well as the development of technical equipment which, in the case of accidents, immediately transmits the position of the bird who may be at threat.


9

“Consider whether animal welfare legislation should be extended to include decapods.” Jessica Allen, A-law Student Essay Competition Winner 2018

Introduction

At first glance, the word ‘decapod’ evokes little – if any – meaning for the uninformed, ordinary citizen. In fact, the lyricists for Disney’s most recent animation, Moana, presume a viewer would have to ‘look it up’.1 Were the viewer to turn to the Animal Welfare Act (England and Wales) 2006 (‘AWA’) or its devolved iterations, though, the term could not be found. It is for this reason that decapods are the subject of a new law reform campaign launched by Crustacean Compassion, an animal welfare organisation dedicated to securing full legal protection for this order of crustacean.2 The campaign raises important questions for the animal welfare regime, principally whether it ought to be updated and extended. Following an assessment of the current animal welfare regime, the nature and volume of relevant scientific data, and the approaches adopted in other jurisdictions, it will be submitted that the amendment of animal welfare legislation to protect decapod crustaceans in particular is certainly overdue.

Ethos of the AWA

To determine whether the scope of the AWA should be broadened, it is necessary to first understand the objectives and purpose of the statute. Taking the text

1 Through the song ‘Shiny’, the large crustacean Tamatoa makes reference to his decapod identity, anticipates the unfamiliarity of the term, and proceeds to break the fourth wall to bring the term to our attention. Lyrics available at <https://genius.com/Jemaine-clement-shiny-lyrics>. 2 More details available at <https://www.crustaceancompassion.org.uk>.

on face value, the first and second chapter designations indicate that the act serves to ‘prevent harm’3 and ‘promote welfare’4 of the animals to which the act applies.5 Having comprehensively combined over 20 pieces of legislation, the AWA built on the foundations of the post-war 1965 Bramble Inquiry into the welfare of farmed animals and reinvented animal welfare law to reflect modern social and moral values. To this end, the numerous protections accorded to the protected animals, and the various circumstances in which the AWA applies, capture the belief that animals deserve not only to be protected from cruelty, but also to have a high quality of life more generally. In terms of environmental ethics, the ethos of the AWA captures the zoocentric perspective that intrinsic value is attributable to any sentient animal that is the experiencing subject of a life, having an individual welfare of its own importance.6

Requirements of the AWA

It is with acute mindfulness of the legislative purpose underlying the animal welfare regime that the posited question of reforming the AWA to include decapods can then be addressed. Understood through a legal rather than ethical lens, this question can only be answered in the affirmative if the necessary statutory

3 Animal Welfare Act 2006, ss 4-8. 4 Animal Welfare Act 2006, ss 9-12. 5 Animal Welfare Act 2006, s1. 6 T Regan (2012), Animal Rights and Environmental Ethics, Springer Science+Business Media, Dordrecht, 87.


10

conditions are satisfied. Crustaceans are invertebrate animals7 within the meaning of s1(3)(a) AWA, such that they are not currently protected by the animal welfare regime established therein. However, the state explicitly recognises that there is scope to extend the scope of the AWA to certain invertebrate species if the appropriate national authority is satisfied, on the basis of scientific evidence, that the invertebrate species concerned is capable of experiencing pain or suffering.8

‘Scientific Evidence’

Pursuant to s1(3)(a) AWA, it is essential to begin by identifying adequate scientific evidence that decapod crustaceans can experience pain or suffering. The challenge in satisfying this statutory standard is that it turns on subjective criteria: given animals cannot express pain in the way that humans can, an adapted

7 J Green and I Gordon, ‘Crustacean’, Encyclopedia Britannia. Accessible at <https://www.britannica.com/animal/crustacean>. 8 Animal Welfare Act 2006, s1(4). 9 M Zimmerman (1986), ‘Physiological mechanisms of pain and its treatment’, Klinische Anasthesiologie Und Intensivtherapie, Berlin, 32: 1-19.

interpretation of pain must therefore be identified. To this end, Zimmerman has authoritatively defined pain in animals as ‘an aversive sensory experience caused by actual or potential injury that elicits protective and vegetative reactions, results in learned behaviour, and may modify species specific behaviour’.9

Framed in these terms, scientists have been able to instigate a significant number of studies to ascertain whether decapod crustaceans – and crustaceans in general – reveal the cognitive biases that are indicative of pain. Diverse methodologies have been applied in order to source a comprehensive set of data, from monitoring hormone levels to observing physical reactions to controlled stimuli.10 Most recently, in 2013, research biologists at Queens University Belfast conducted a shock avoidance experiment on shore crabs to see whether they modified their behaviour

10 See for example: S Barr et al (2008), ‘Nociception or pain in a decapod crustacean?’, Animal Behaviour, 75: 745-751; R Elwood et al (2009), ‘Pain and stress in crustaceans?’, Applied Animal Behaviour Science, 118: 128-136; and R Elwood and M Appel (2009), ‘Pain in hermit crabs?’, Animal Behaviour, 77: 1243-1246.


11

and sought shelter in response to shock.11 The findings in the study, which broadly reflected those of previous experiments, were construed as consistent with the core criteria for experiencing pain.

‘Satisfied’

Identifying scientific evidence, however, is not sufficient in and of itself. The terminology employed in s1(3)(a) AWA is more problematic insofar as the standard of scientific evidence is not specified; rather discretion rests with the appropriate national authority to interpret the evidence adduced. Thus, despite the wealth of scientific data indicating that decapods possess the capacity to experience pain, something additional is required to persuade the appropriate authority to instigate legal reform. In this respect, the extension of animal welfare regimes in other jurisdictions may be persuasive.

Although the United Kingdom (UK) has voted to withdraw from the European Union (EU), the approach to animal welfare fostered within the region remains influential in the debate on whether decapods ought to be protected by domestic law. One ground for this comparison is that the emphasis on scientific evidence in the AWA is a clear derivation from EU law. Indeed, scientific data is a core component of EU animal welfare and nature conservation policy.12 In developing law and policy, the Treaty on the Functioning of the EU (TFEU) recognises a general duty on the EU and member states to pay full regard to the welfare of animals, since animals are sentient beings.13 At this juncture, it is conceded that nowhere in the EU animal

11 B Magee and R Elwood (2013), ‘Shock avoidance by discrimination learning in the shore crab (Carcinus maenas) is consistent with a key criterion for pain‘, Journal of Experimental Biology, 353. 12 In EU legislation, see for example: Directive 2009/147/EC on the Conservation of Wild Birds, art 15 (‘Such amendments as are necessary for adapting … to technical and scientific progress shall be adopted’). In EU jurisprudence, see for example: C-258/11, Sweetman v An Bord Pleanála (2013); Case 521-12, Briels v Minister van Infrastructuur en Milieu (2014). 13 Treaty on the Functioning of the European Union 2008, art 13. 14 G Liuzzo et al (2017), ‘Analysis of provincial and municipal regulations governing crustacean welfare in Italy’, Italian Journal of Food Safety, 54.

welfare regime is protection specifically afforded to crustaceans.14 Yet, given science is a cornerstone of EU legislation and jurisprudence in this area, ‘sentient beings’ impliedly acquires an evolutionary scientific definition. In this context, value must be accorded to the nexus between sentience and invertebrates that has been recognised by eminent scientists such as Broom.15 As a result, Austria is among an increasing number of member states to singularly identify decapods (‘Zehnfußkrebse’) as falling within the scope of its domestic welfare legislation.16

Should EU law be deemed less persuasive, amid negotiations over the EU (Withdrawal) Bill 2017-19, the fact that other European and common law jurisdictions grant protection to decapods or crustaceans is similarly compelling. In explicit terminology, § 2 of the Norwegian Animal Welfare Act 201017 delineates the scope of the regime and lists decapod crustaceans among the protected species. In general terminology, s2(1)(a)(vi) of the New Zealand Animal Welfare Act 199918 protects crustaceans, namely crabs and lobsters. While it is true that, in Australia, federal

15 D Broom (2016), ‘Considering animals’ feelings: Précis of Sentience and animal welfare’, Animal Sentience; available online at <http://animalstudiesrepository.org/cgi/viewcontent.cgi?article=1015&context=animsent>. 16 Federal Act on the Protection of Animals 2004, § 3(2); available online at <http://www.ris.bka.gv.at/Dokumente/Erv/ERV_2004_1_118/ERV_2004_1_118.pdf>. 17 Available online at <https://www.animallaw.info/statute/noway-cruelty-norwegian-animal-welfare-act-2010#s2>. 18 Available online at <http://www.legislation.govt.nz/act/public/1999/0142/latest/DLM49664.html>.

‘…despite the wealth of scientific data indicating that decapods

possess the capacity to experience pain, something additional is

required to persuade the appropriate authority to instigate

legal reform.’


12

definitions of ‘animals’ variably include19 and exclude20 crustaceans, it is submitted that many contemporary definitions were adopted before the height of scientific knowledge in this area. As a result, any inferences drawn from the omission of crustaceans from certain acts should be treated with caution and viewed in light of the more recent studies on pain experience abovementioned. This is underscored by the fact that, of these various definitions, the only explicit reference to decapods is also the most recent.

Closing remarks

What is remarkable from this discussion is that the AWA itself recognises that protection should be extended to invertebrates where scientific evidence exists, as is now the case for decapod crustaceans. The apposite question is rather whether protection will be extended in the future. In this respect, the crux of the issue is neither the need for a legal mechanism through which to protect decapods, nor the lack of scientific evidence on which to trigger it, but the satisfaction of the discretionary statutory standard in s1(3)(a) AWA.

19 An inclusive definition exists in various forms in New South Wales (Prevention of Cruelty to Animals Act 1979), Victoria (Prevention of Cruelty to Animals Act 1986), Australian Capital Territory (Animal Welfare Act 1992), and the Northern Territory (Animal Welfare Act 2000). Of these definitions, it is noteworthy that decapods as a particular subspecies of crustacean have been explicitly identified in s3(3)(b) of the Prevention of Cruelty to Animals Act 1986. 20 No provision is made for decapods in South Australia (Animal Welfare Act 1985), Queensland (Animal Care and

On this view, the fact that reform has yet to be realised merely indicates a lack of political willingness on the part of the incumbent decision-maker. Whether more evidence will be required, or change is actually imminent, is utterly unclear. For want of legal certainty in future cases, it can only be hoped that, as pledged by Michael Gove,21 Brexit will provide a platform for UK animal welfare law to become more rigorous and comprehensive for recognised sentient animals – starting with decapod crustaceans.

About the Author

Jessica Allen is a postgraduate student reading for the Bachelor of Civil Law at the University of Oxford. She graduated with honours in Law with French and French Law at the University of Nottingham in 2017. Formerly the Vice President for Academic Activities of ELSA United Kingdom (2016-17), Jessica is an aspiring public lawyer with a demonstrated devotion to environmental law and international relations.

Protection Act 2001), Tasmania (Animal Welfare Act 1993), and Western Australia (Animal Welfare Act 2002). 21 In response to a failed amendment to integrate the EU Protocol on animal sentience into the European Union (Withdrawal) Bill 2017-19, tabled by Green Party co-leader Caroline Lucas, the BBC reported Michael Gove’s statement that ‘this government will ensure that any necessary changes required to UK law are made in a rigorous and comprehensive way to ensure animal sentience is recognised after we leave the EU.’ News coverage available at <http://www.bbc.co.uk/news/uk-politics-42099678>.


13

Case Materials and News Charlotte Hughes, Katie Thomas and Josephine Burnett

Cases

Animals in research: R (on the Application of Chiltern Farm Chemicals Ltd) v Health & Safety Executive (2017) [2017] EWHC 2491 (Admin)

Decision considering whether a bird field monitoring study was a vertebrate study. If it was, it was subject to the data sharing provisions of Regulation 1107/2009, art. 62, which attempts to reduce the numbers of animals used in research, by avoiding duplicate experimentation.

The claimant challenged the decision of the Health and Safety Executive that a bird field monitoring study was a vertebrate study and therefore subject to data sharing provisions under Regulation 1107/2009, art. 62. The purpose of the study was to assess the risk of the particular slug pellets to birds and was necessary as part of the process of obtaining authorisation to sell as a plant protection product. The bird pellets were applied to five fields and the farmland birds present at the test sites were netted, ringed and radio tagged so as to monitor the effect of the pellets.

Article 62 of Regulation (EC) 1107/2009 makes provisions for the sharing of tests involving vertebrate animals with the purpose of reducing the amount of experimentation conducted on vertebrates and to avoid duplicating testing in the case of plant protection products. Included is the provision to ensure that tests and studies involving vertebrate animals are shared and Art 62(3) provides that ‘the costs of sharing the test and study reports shall be determined in a fair, transparent and non-discriminatory way.’

It was agreed that a bird field monitoring study would only fall within art.62 if it fell within the definition of a "regulated procedure" set out in the Animals (Scientific Procedures) Act 1986, as interpreted in the light of

Directive 86/609. This encompassed any scientific procedure applied to a protected animal that might have the effect of causing that animal pain, suffering, distress or lasting harm.

The court held that the study fell within art 62 because it had the potential to cause suffering and harm to the birds, who may be at risk from consuming slug pellets or contaminated slugs, thus causing a degree of distress and suffering. It was not relevant that the slug pellets had been used for many years and the study was only required because of a regulatory change, which meant there was a need for re-authorisation. The claimant was therefore subject to the data sharing provisions.

Animal Welfare Offences – Sentencing: (1) Della Barker (2) Keith Williamson v RSPCA (2018) [2018] EWHC 880 (Admin)

As the first appeal by way of case stated against an order disqualification from keeping or owning animals, this case lays down guidance for how to approach ancillary orders, including disqualification orders under s.34 of the Act.

The Animal Welfare Act 2006, s.9, imposes a duty on owners or keepers of an animal to properly ensure their welfare. Section 34 sets out the available orders in the event of a conviction. In this case, a couple was found guilty of failing to meet their dogs’ needs pursuant to the Animal Welfare Act, s.9 and an order was made disqualifying them for owning or keeping animals for seven years.

The dogs had been kept in crates for over 20 hours a day, they had a heavy flea infestation and the eldest dog had a medical condition which could have been treated but was not and he had to be put down. The dogs had not received veterinary treatment for any of their ailments for a number of years. One of the


14

appellants had mobility and disability issues and the couple was living in squalid and chaotic conditions.

The couple appealed by way of case stated against the disqualification order. The appropriate legal test was whether the sentence was one which was ‘Wednesbury’ unreasonable, i.e. no reasonable decision maker could have made. The appeal was based on the couple’s good character, their long history of looking after the dogs, steps taken to sanitise the house following the RSPCA’s visit, and there having been no cruelty. The Crown Court upheld the disqualification but varied the terms to allow the couple to keep their terrapin, determining the situation to have been correctly categorised as medium-term neglect, and therefore correctly sentenced.

The court noted that there were two sentencing guidelines relating to s.9 offences, both of which required consideration of ancillary orders, including disqualification from owning and keeping animals. However, the guidelines did not advise the court how to approach disqualification.

The court held that in most cases, one of three types of order under s.34 would be appropriate: prohibition against keeping or owning any animal, prohibition against keeping or owning a particular kind of animal where there has been a history of repeated failure against that animal but not others, or a prohibition against owning or keeping all animals except a particular kind of animal where that species is unlikely to come to harm (‘an exclusory order’).

In this case, a disqualification order was not wrong or oppressively harsh. The court could have imposed a fine, community penalty or custodial sentence and that would have been justified under the sentencing guidance. The disqualification order was reasonable; its purpose was to protect animals, rather than punish the appellants.

Animal Welfare Offences – Criminal Procedure: Smith v RSPCA (2017) [2017] EWHC 3536 (Admin)

Refusal to adjourn a part-heard trial for animal welfare offences on the basis the defendants were unfit to stand trial.

Part way during a trial of four defendants accused of animal welfare offences in relation to animals kept on their farm, one of the co-defendants took his life. The trial was adjourned. A month before the trial was due to resume; the court received a GP letter detailing the inability of the defendants to cope with the trial for a further six months. The district judge held that the letters did not comply with the Criminal Procedure Rule. The GP was called to attend court and gave evidence as to the mental state of the defendants.

The district judge refused to adjourn further, noting that the GP had not independently used the term “unfit” until prompted; the defendants had not recently been examined; and opined that they did not believe sleeplessness and depression amounted to unfitness to attend trial. The district judge found each of the appellants guilty of 12 charges and the appellants submitted that the refusal to adjourn was Wednesbury unreasonable, with a lack of properly exercised discretion, thus rendering the trial unfair.

An appeal by way of case stated was dismissed. It was held that a refusal to adjourn could be justified where medical evidence was inadequate, with the district judge correct in finding that the GP letters in this instance did not clearly state how the appellants were unable to stand trial. Based on this, and the fact that the appellants had not been examined for a month and no up to date medical report was provided, the district judge was entitled to conclude that the medical evidence did not prove unfitness to stand trial. The district judge had the potential unfairness to the appellants in mind and the refusal to adjourn had not been unlawful, with the correct test being applied and a fair trial being exercised.

(1) Mark Woodville Downes (2) Susan Carol Smith v RSPCA (2017) [2017] EWHC 3622 (Admin)

Routes of appeal from a magistrate’s decision about jurisdiction to hear a case allegedly brought out of time.

S.31 of the Animal Welfare Act 2006 provides that proceedings must be commenced before the end of six months from the date that the prosecutor became


15

aware of evidence sufficient enough to justify proceedings.

Following the RSPCA’s visit to the appellants’ farm, where it was alleged that animals were kept in very poor condition, the appellants submitted that the time limit had not been adhered to, with the offences being out of time and the court therefore having no jurisdiction to try them. The trial judge held that they had jurisdiction to hear the charges.

The appellants relied on R (on the application of Donanchie) v Cardiff Magistrates’ Court [2007] EWCH 1846 (Admin) to support the submission that a magistrates’ decision relating to a preliminary issue of jurisdiction was final, and therefore could be challenged. The magistrate stated a case, asking whether she could state a case before verdict, given that it related to jurisdiction.

The court held that the court had to determine itself whether it had jurisdiction. If it declined jurisdiction, that decision could be challenged by judicial review or case stated. If it accepted jurisdiction, it did not have power to state a case and the only remedy for the aggrieved party was judicial review, the magistrate should not adjourn without good reason. In all other cases there was no power to state a case in relation to an interlocutory ruling. Donachie had been wrongly decided in relation to magistrates’ power to state a case on an interlocutory basis and was disapproved.

Animal Welfare – Dog Fighting: Julie Wright (Claimant) v Reading Crown Court (Defendant) & RSPCA (Interested Party) (2017) [2017] EWHC 2643 (Admin)

Following conviction of the claimant for Animal Welfare Act 2006 s.8 offences relating to the keeping or training of a bull terrier-type dog for use in connection with an animal fight, the claimant applied for judicial review of the defendant crown court’s refusal to state a case.

The court found that the dog had been kept at the claimant’s home, in addition to spending considerable time as the home of another man, and that one or both of the men arranged for the dog to be sent to Ireland for assessment or training and therefore kept the dog

for use in connection with an animal fight. The claimant asked the court to state a case on whether a person could keep or train an animal within s.8 through an agent.

It was held that the definition of the word “keeps” included actual physical possession of an animal, but also exercising a level of control over an animal, whether at the home of the person charged, or at the home of another. A section 34 disqualification order could allow for disqualification from participating in the keeping of animals, including knowingly having control of an animal wherever it might be kept. The Wildlife and Countryside (Registration, Ringing and Marking of Certain Captive Birds) (England) Regulations 2015 also provided clarification that “’keep’ means to have in one’s possession or control” and does not therefore require actual possession.

It was therefore understood that the court’s refusal to state a case had been correct, with “keep or train” under s.8 including not only physical possession, but also where a person retained control of an animal while it was elsewhere. Restricting the interpretation of s.8 to actual physical possession would limit the criminalisation of those involved in training animals to fight.

Animal welfare – cost of caring for seized animal – whether bailment relationship was created so costs could be recovered.

David Lionel Tongue v (1) RSPCA (2) Timothy Heaselgrave (Trustee In Bankruptcy Of The Applicant) (2017) [2017] EWHC 2508 (Ch)

The applicant challenged the decision of the second respondent, who in bankruptcy proceedings admitted a proof of debt from the RSPCA, who were joined as the First Respondent.

The applicant had been sentenced to imprisonment for leaving his cattle with insufficient food and water. The cattle had been seized by a police officer and placed in the RSPCA’s care. He later gave permission for the RSPCA to attend the cattle to provide them with care. Subsequently the RSPCA moved the herd to another farm and incurred costs of boarding the cattle over several years. Upon the applicant being adjudged


16

bankrupt, the RSPCA submitted proof of debt of over £420,000.

The RSPCA argued that they had a relationship of bailment and had come to owe the applicant a duty of care towards the preservation of the cattle, therefore there was a corresponding right to recover expenses incurred in fulfilling that duty.

It was held that bailment depended upon possession, usually as a result of mutual consent of both parties, however it was possible without bailor consent. The court held that the limited consent given to care for the cattle did not give rise to a relationship of bailor and bailee. In any event, the removal of the cattle with the assistance of the police would have rendered the police the bailees of the cattle, and the RSPCA in turn becoming bailee for the police, with the RSPCA continuing to hold the cattle under this arrangement.

It was further noted that the context of the acquisition of the cattle was one of a charitable nature, aiming to improve the lives of the animals, and requiring no fee for such an activity sits with such objectives. It would not have been apparent to the reasonable man that the RSPCA would seek to recover their expenses. The expenses associated with the boarding were therefore not recoverable.

About Charlotte Hughes

Charlotte graduated from the University of Wales, Bangor in 2012 with an LL.B Law with Spanish degree. From here she developed a special interest in animal welfare law, going on to volunteer and work in a range of animal welfare roles. Charlotte completed a Master of Animal Law and Society at the Autonomous University of Barcelona in 2016, and is due to begin the

1 Commons Select Committee, ‘Fur trade in the UK inquiry launched’ (www.parliament.uk, 7 February 2018) <https://www.parliament.uk/business/committees/committees-a-z/commons-select/environment-food-and-rural-affairs-committee/news-parliament-2017/fur-trade-inquiry-launch-17-19/> accessed 2 April 2018 2 Ibid 3 Ibid 4 Humane Society International, ‘Written evidence submitted by Humane Society International UK (HSI UK) (FUR0040)’ (www.parliament.uk, 13 March 2018)

LPC in 2018, whilst continuing in her role as a Regulatory Paralegal.

EFRA Committee's inquiry about the import of fur products

On 7 February 2018 the Environment, Food and Rural Affairs Committee (the EFRA Committee) launched an inquiry into the fur trade in the UK.1 This was after a recent spate of high-profile cases of real fur being sold as faux fur in popular shops on the high-street and online.2

While fur farming has been banned in the UK for 18 years, the UK still imports and sells fur from a range of species including “fox, rabbit, mink, coyote, racoon dog and chinchillas.”3 Since the ban was introduced, “the UK has imported more than £650 million of animal fur from animals farmed and trapped overseas.”4 EU regulations only ban the trade in fur from domestic cats and dogs, and that obtained during commercial seal hunts.5

The EFRA Committee held its first evidentiary session on 7 March 2018, which included oral evidence from witnesses, including reporters and directors of some of the UK’s most popular retailers.6 The session discussed how the fur trade has been exposed in the UK and what steps can be taken to avoid the sale of real fur as faux fur.7 The report is due to be published in the near future.

Evidentiary session

During the evidentiary session Sarah Hajibagheri, a reporter for Sky News, explained how she and Claire Bass, executive director of Humane Society International (HSI), worked together to investigate the

<http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/environment-food-and-rural-affairs-committee/fur-trade-in-the-uk/written/78781.pdf> accessed 2 April 2018 5 Commons Select Committee (n 1) 6 Commons Select Committee, ‘Fur trade in the UK examined by Committee’ (www.parliament.uk, 7 March 2018) <https://www.parliament.uk/business/committees/committees-a-z/commons-select/environment-food-and-rural-affairs-committee/news-parliament-2017/fur-trade-in-the-uk-evidence-17-19/> accessed 2 April 2018 7 Ibid


http://www.parliament.uk/

https://www.parliament.uk/business/committees/committees-a-z/commons-select/environment-food-and-rural-affairs-committee/news-parliament-2017/fur-trade-inquiry-launch-17-19/





http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/environment-food-and-rural-affairs-committee/fur-trade-in-the-uk/written/78781.pdf





https://www.parliament.uk/business/committees/committees-a-z/commons-select/environment-food-and-rural-affairs-committee/news-parliament-2017/fur-trade-in-the-uk-evidence-17-19/




17

mislabelling of real fur as fake fur. They visited popular high street shops such as House of Fraser and TK Maxx, as well as online retailers Boohoo and Missguided.

During this investigation in April 2017 Claire was able to identify real fur being passed off as faux fur, sometimes for extremely cheap prices. Those items were sent to a fibres expert, Dr Phil Greaves, who was able to identify that the fur ranged in species from racoon dog, mink, and even cat. Online retailers such as Amazon, eBay and Not on the High Street have also been guilty of selling real fur as faux fur. Claire described finding 60 items on Amazon labelled as faux fur, and buying 10% of them – all items contained real fur from a range of species. Alex Bushill, a BBC London news correspondent, also investigated the fur trade in the UK. Clothing was bought from seventeen separate 8 BBC London News, ‘Written evidence submitted by BBC London News’ (www.parliament.uk, 7 March 2018) <http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/environment-food-and-rural-affairs-committee/fur-trade-in-the-uk/written/78640.pdf> accessed 2 April 2018 9 Environment, Food and Rural Affairs Committee, ‘Oral evidence: Fur Trade in the UK, HC 823’ (www.parliament.uk,

shops and stalls across London, with all vendors proclaiming the clothing was 100% faux.8 In every case the items were also provided to Dr Phil Greaves, who confirmed that the faux fur was actually real fur. Although Bushill agreed that it was harder for smaller retails to obtain better profit margins on products, he pointed out that, “Nonetheless, they should not be misleading the public”.9 Shockingly, a wholesaler in Commercial Road, when challenged, responded with “Look, this is what we are all up to on Commercial Road. It happens everywhere”.10

Although the global trade in fur is “fairly opaque”, there has been a large increase in fur faming in China over the last decade, “with farmers having tens of thousands of animals with very low welfare standards.”11 This may be one of the biggest causes of

7 March 2018) <http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/environment-food-and-rural-affairs-committee/fur-trade-in-the-uk/oral/80118.pdf> accessed 2 April 2018, Q 10 (pg 5) 10 Ibid, Q 14 (pg 7) 11 Ibid, Q 13 (pg 7)







http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/environment-food-and-rural-affairs-committee/fur-trade-in-the-uk/oral/80118.pdf




18

the contamination of the supply chain in the UK. The low welfare standards of animals bred for fur is also one of the main reasons HIS wishes for a complete fur import ban in the UK. Claire also stated that, “High-welfare fur farming is basically an oxymoron.”12 All that any high-welfare schemes, such as the WelFur scheme, actually improve upon is productivity and return on investment. After all, there is the argument that “keeping wild and undomesticated animals in captive conditions like that can never be humane.”13

UK Labelling Regime

The current labelling regime in the UK was also discussed. It is covered by the EU textile labelling regulation.14 There are so many caveats and exemptions that it is basically useless and doesn’t work for consumers. The mislabelling of real fur also has economic impacts. Real fur imports carry a higher tax – if real fur is being imported labelled as faux fur, the UK treasury is missing out on a hefty amount of taxes.

There are a handful of regulations which the UK can look to emulate post-Brexit, with the US Truth in Fur Labelling Act 2010 being one of them. “It requires all fur items, regardless of weight or type, to carry a label that specifies the species of the fur animal used and the country of origin.”15 The Swiss regulation also goes further, requiring the label to stipulate the method of farming, as well as slaughter.

Boohoo

BooHoo was found to be selling earrings with a ‘faux-fur’ trim for £5 – which was found to be mink – via the Sky investigation. Paul Horsfield, merchandising director for boohoo.com, revealed that within seven days of the revelation that particular suppler had been discontinued. Further, of five incidents of real fur being labelled as faux fur known to Boohoo, all products originated from China. Boohoo have now put some suppliers on ‘red watch’, and for the next six months any products being produced will go through a more thorough examination process than usual. A second strike will lead to financial penalties, and a third strike

12 Ibid, Q 42 (pg 18) 13 Ibid, Q 45 (pg 19) 14 Textile Regulation (EU) No 1007/2011

will lead to potential discontinuance of use of the supplier.

House of Fraser

High street giant House of Fraser also found out about their product - a pair of gloves with a rabbit fur trim - due to the Sky investigation. Dorothy Maxwell, head of sustainability at House of Fraser, revealed that within a day the product was taken out of the Oxford Street store. Dorothy highlighted that “contamination of the supply chain” is happening with certain brands that they work with, and “this could happen in any brand if it does not have good due diligence.”16 However, during the oral evidence session it was revealed that a similar incident occurred in 2015.

Missguided

Missguided also found out via the media. They seem to have made some very intensive changes, including providing training to the buying and merchandise technical teams and the supply base, which is predominantly based in China, where the incident happened. Neil Hackett, interim sourcing director at Missguided, admitted that they were only checking development samples when the incident occurred, but have now put processes in place to ensure production samples are also being checked. They have also created a declaration, which needs to be made on all imports for supplies, that the material they are putting on any component is in fact faux fur.

Conclusion

It is evident that the fur trade is still a real problem in the UK. Although retailers only seem to be tacking the problem once the media becomes involved, most are committed to eradicating the sale of real fur in their stores. All witnesses agreed that improving the labelling of products would be an excellent way forward, especially after Brexit.

There are three ways to tell if fur is real as outlined in the evidentiary session. Firstly, if real fur is parted where the hairs join the base, a skin will be found. In

15 Environment, Food and Rural Affairs Committee (n 9), Q 27(pg 13) 16 Ibid, Q 74 (pg 28)


19

faux fur this base will always be fabric weave. Secondly, the tips of fur strands in real fur will taper to a point, whereas faux fur will not. Finally, if you are able to cut a piece of the fur off and burn it, faux fur will curl into a ball and smell like plastic. Real fur will frazzle and smell like burning hair.

About Katie Thomas

Katie studied law at the University of Warwick and started her training contract at Norton Rose Fulbright in March 2017. She is keen to use her legal background for animal welfare purposes.

Defra’s proposal to ban electronic training collars - Briefing

On 12 March 2018, the Department for Environment, Food and Rural Affairs (“Defra”) launched a public consultation on its proposal to ban electric training collars (“e-collars”).

What are e-collars?

E-collars are corrective behaviour devices used to train pets, and which operate by emitting electronic or static pulses and other signals. Typically, these devices are used on cats and dogs, and are commonly used by pet owners. A recent survey carried out by RSPCA found that while 88% of dog owners agreed that training should not frighten, worry or hurt dogs, 5% of owners said they used electric shock collars.17

There are two types of e-collar. The first is the hand held remote-controlled device, which is operated by the owner and used to stop unwanted behaviours by triggering an electronic pulse. The second is the containment system, which is used to keep animals within a certain area, and which triggers an electronic pulse when the animal approaches the boundary of that area.

17 https://www.rspca.org.uk/whatwedo/latest/details/-/articleName/2018_03_11_Ban_of_electric_shock_collars_in_England 18 Blackwell EJ, Bolster C, Richards G, Loftus BA, Casey RA., The use of electronic collars for training domestic dogs: estimated prevalence, reasons and risk factors for use, and owner perceived success as compared to other training methods, BMC Vet Res. 2012;8(1):93.

E-collars and animal welfare: Positive reinforcement

There is concern that e-collars cause unnecessary pain, suffering and distress, and have a negative impact on the animal’s welfare. Research has shown that training can be effective without the use of such devices and that positive reinforcement (reward-based training) is in fact more effective than using e-collars.18 Positive reinforcement training methods are also in line with Defra’s code of practice for dog training, which states:

“An incorrect training regime can have negative effects on your dog’s welfare. Reward based training, which includes the use of things that dogs like or want (e.g. toys, food and praise) is enjoyable for your dog and is widely regarded as the preferred form of training dogs”.19

Lack of training and regulation

There are also a number of issues around the training users receive before operating e-collars. For example, how do owners know what level to issue the electric pulses at without causing unnecessary suffering? The use of e-collars is currently unregulated, and owners do not need to be trained before using them.

This means that pet owners are free to use e-collars at whatever intensity and duration they choose.20 Further, the efficacy of an e-collar is down to the ability of the owner to use it promptly, since issuing the shock too long after the animal has exhibited the unwanted behaviour would only serve to confuse and agitate the animal.

The proposed ban

Defra’s aim is to introduce regulations under the Animal Welfare Act 2006 to ban the use of both types

19 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/697953/pb13333-cop-dogs-091204.pdf. 20 The Scottish Government’s Proposed Guidance on the Use of Electronic Training Equipment: A Response, Professor Sheila Crispin and Mike Radford February 2018.


https://www.rspca.org.uk/whatwedo/latest/details/-/articleName/2018_03_11_Ban_of_electric_shock_collars_in_England



https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/697953/pb13333-cop-dogs-091204.pdf



20

of e-collar. Regrettably however, since launching the proposal, Michael Gove announced that a total ban on the use of these devise may not in fact be the way forward. This is due to concerns that banning electronic containment systems may lead to an increase in the number of pets being killed on the roads. At the moment, therefore, it remains to be seen whether Defra will backtrack and tone down the ban to cover only the hand held remote controlled devices.

The proposed ban would apply to England only, although the Scottish Government is planning to publish statutory guidance on the issue, and the ban has already been in place in Wales since 2010. Elsewhere in the world, e-collars are banned in Denmark and Germany, and are subject to tighter legislation in New Zealand and Australia.

Significantly, Defra’s proposed ban only extends to the use of e-collar, and does not cover the sale of these devices. At the moment, e-collars are easily available at low cost for anyone to buy over the internet. Surely,

the impact of a ban on the use of e-collars would be compromised if people are not also prohibited from selling them in the first place. It would be down to Westminster to ban the sale of e-collars across the UK, since the devolved parliaments of Wales and Scotland do not have the power to legislate on such matters.

Hopefully, parliament will seize this opportunity and legislate against both the use and sale of all types of electric shock collar devices.

About Josephine Burnett

Josephine studied Law with French at the University of Birmingham and graduated in 2013. She volunteers for the RSPCA as a Volunteer Speaker and have been a member of A-Law for 1.5 years. She also regularly attends the All Party Parliamentary Dog Advisory Welfare Group meetings and is currently completing her training contract.


21

Animal sentience in UK law: does the new clause need claws? Simon Brooman, Liverpool John Moores University

Abstract

This article examines the introduction into UK law of a general requirement to take into account the sentience of animals in developing legislation. The difficulties encountered by the UK government during the Brexit debates of 2017 is examined. It is suggested that the concept of sentience is acknowledged to be multi-layered and complicated making it difficult to confine in a simple legislative formula to be considered by disparate individuals and departments. This leaves doubts over the success of the suggested legislation unless it is supported by central co-ordination, expertise and accountability. The history of UK law in relation to sentience is examined and compared with the EU. It is concluded that more is needed to enable a consistent approach to emerge in light of the on-going development of knowledge regarding sentience. It is proposed that a central animal protection commission is vital to ensure accountability and expertise. This is more likely to provide a scientifically and philosophically coherent set of principles. Keywords: Animal sentience, animal welfare, Brexit. Introduction The period between late 2017 and early 2018 marked an uncomfortable period for the UK Government’s animal welfare policy. The defeat of a proposal to provide a replacement for the EU’s ‘protection of animal sentience’ was met with howls of derision. For many, this was confirmation of their worst fears

1 Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community (2007/C 306/01), Article 13.

relating to the protection of animals in a post-Brexit United Kingdom. No longer would we protect animals as well as we had when we were members of the EU. For example, agricultural animals would be less protected and experimental animals would be subject to further and worse abuse as regulation disappeared in new free trade agreements. The government was taken off-guard by a vocal and angry backlash and the news headlines were uniformly critical. This caused the government to move very hastily to introduce legislation to replace the protection of sentience under Article 13 of the Treaty on the Functioning of the European Union (TFEU).1 By January 2018, a bill to bring the concept of sentience into UK law had moved to scrutiny by the House of Commons. This article aims to unpick the issue of animal sentience in United Kingdom Law in the post Brexit United Kingdom. Is Britain likely to have less protection of sentient creatures in law once we leave the EU? What will we gain and what will we lose? What is the way forward to provide the best possible protection for animals in the United Kingdom in science, agriculture, domestic situations and the wild? In particular, why is an animal protection commission required? What happened in 2017-18 regarding sentience in UK law? As part of the debate on bringing EU law directly into UK law, Parliament was asked to vote on New Clause 30 (NC30) which, if passed, would give direct effect to Article 13 of the Lisbon Treaty that states:


22

"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."2

The government whipped conservative Members of Parliament into voting against the clause which, as a result, was defeated by 313 votes to 295 on 15th November 2017. They argued that the EU withdrawal bill was not the place to enshrine the issue in law and that the Animal Welfare Act 2006 was already in place to provide sufficient protection to animals. By the 22nd of November the Government was on the defensive

2 Lisbon Treaty, (2007). Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community. Official Journal of the European Union, December, 17.

following a backlash on social media. The government seemed to be panicked by this public relations disaster with MPs and the government being accused of denying that animals are sentient, with many animal welfare organisations joining in the criticism. On the 23rd November, Michael Gove, the Environment secretary, moved to stem the tide of criticism by announcing that the government legislate to enshrine the need to pay regard to animal sentience in law. On 12th December, Michael Gove asked the House of Commons Environment, Food and Rural Affairs Committee (EFRAC) to give comments on a draft Bill by the end of January 2018. It contained the following proposal (clause 1) regarding sentience:3

1. Welfare needs of animals as sentient beings (1) Ministers of the Crown must have regard to the welfare needs of animals as sentient beings in

3 The proposed bill also contained a second set of proposals regarding harsher sentences for animal welfare abuse that are not the subject of this article.


23

formulating and implementing government policy. (2) In discharging that duty Ministers of the Crown must also have regard to matters affecting the public interest.

By 1st February, the Committee had conducted a public consultation exercise, heard evidence from expert witnesses and produced a report on the Bill which agreed with the importance of the concept of animal sentience and the need for harsher penalties.4 However, the Committee also found that the trigger issue, animal sentience, was so vaguely and hastily constructed by the government that it should be separated from other issues in the bill to allow for it to be clarified. The Committee considered that accountability issues and the status of species such as cephalopods and octopus was in need of further scrutiny. The oral evidence of two of the witnesses bears testament to the problems created in the proposed new act. Mike Radford, Reader in Law at the University of Aberdeen commented that:

‘[T]here has never been any question that Parliament recognises sentience in other species. Right from 1822, when this place passed the first animal protection legislation, it was passed on the assumption that those animals had the capacity to feel pain and pleasure.’ (EFRAC, 2018b, response to Q5)

He went on to express the view that the issue of sentience is largely symbolic and doubted whether legislation was the place for symbolism and that Parliament, as a sovereign body could, in theory, legislate to bypass such legislation in future if it wished to do so. It is also common practice for the government of the day to conduct consultations, at which point those with an interest are able to have an input. He suggested that the new Act would add nothing here 4 EFRAC, (2018a). House of Commons, Environment, Food and Rural Affairs Committee. Oral evidence: Draft Animal Welfare (Sentencing and Recognition of Sentience) Bill 2017, HC 709. Wednesday 17 January, 2018. See http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/environment-food-and-rural-affairs-committee/draft-animal-welfare-sentencing-and-recognition-of-sentience-bill-2017/oral/77281.html

and the legislation on sentience would, therefore be, potentially redundant even as it was passed. The second witness, Sir Stephen Laws commented that the language and scope of the bill was unclear: the needs of ‘sentient creatures’ go beyond providing only for their welfare, and that this could create problems in interpreting the legislation as the wording of clause 1(1) mentions both. (EFRAC, 2018, response to Q2)

However, the opinion of these expert witnesses and the final recommendation of EFRAC that the sentience clause be sent back to the minister for amendment, remains at odds with some areas of the animal welfare community. David Bowles, Assistant Director, Public Affairs of the RSPCA stated that the draft bill means that… ‘the government will have to consider animal sentience in future when they draw up laws… this is another amazing win for animals’.5 The Report produced by the committee in February 2018 was less than complementary about the way in which the government had dealt with the sentience issue arising from Brexit:

(EFRAC] notes that: “[Animals] deserve better than to be treated in a cavalier fashion yet the impression given to us is one of haste. It appears that this draft Bill has been presented to the public - and Parliament - in a far from finished state.”6

5 Nunan, E. (2018). ‘Tougher Sentences for Animal Cruelty’. Animal Life, RSPCA. Spring, 17. 6 EFRAC, (2018b). House of Commons, Environment, Food and Rural Affairs Committee. Pre-Legislative Scrutiny of the draft Animal Welfare (Sentencing and Recognition of Sentience) Bill: Second Report of Session 2107-19. HC 709. Published 1 February 2018.

‘…the Committee also found that the trigger issue, animal sentience,

was so vaguely and hastily constructed by the government that it should be separated from

other issues in the bill to allow for it to be clarified.’


http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/environment-food-and-rural-affairs-committee/draft-animal-welfare-sentencing-and-recognition-of-sentience-bill-2017/oral/77281.html




24

In the period after the EFRA select committee issued its report in February another potentially essential component emerged. This was in the form of a letter sent by A-law and the Wildlife and Countryside Link in April 2018 to Lord Gardiner, Parliamentary Under Secretary of State for Rural Affairs and Biosecurity raising a crucial issue that was not dealt with by the proposed sentience bill:

‘[We] would wish to be assured that public officials are supported and properly advised, when exercising this duty, by the necessary scientific and technical expertise of a Commission, whether this is a free standing Animal Protection Commission or an animal welfare division of the Environment Commission. [W]e welcome a duty to report annually to Parliament as a means of ensuring accountability and urge that this be included in the legislation. However, we consider that a duty to report on its own will not be sufficient, in the absence of other mechanisms which ensure that effect is given to the policy objectives. We believe that political accountability is essential but also that, to give proper effect to the duty, there should be legislative obligations providing a method that ensures compliance.’

The idea of a central scrutinizing body that could provide expertise and accountability was suggested by Jenkins in 1992, Brooman in 1997, the Centre for Social Justice in 2018.7 The desirability of such a body is discussed later in this article. Following its defeat both in the chamber of the House of Commons, and in front of the EFRA Committee, the future direction of travel for the UK’s new sentience legislation is unclear despite the position set by

7 Jenkins, S. (1992). Animal Rights and Human Wrongs, Lennard Publishing: Hertfordshire, pp 93-94. Brooman and Legge, above n. 8, pp 436-442; Centre for Animals and Social Justice. (2018). Animal Protection Commission. See http://www.casj.org.uk/animal-protection-commission 8 House of Commons, (2018). Animal Sentience and Brexit. Briefing Paper Number 8155, 2nd February 2018. See https://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-8155#fullreport

Michael Gove, Secretary of State for the Environment in 2017:

Before we entered the European Union, we recognised in our own legislation that animals were sentient beings. I am an animal; we are all animals, and therefore I care—[Interruption.] I am predominantly herbivorous, I should add. It is an absolutely vital commitment that we have to ensure that all creation is maintained, enhanced and protected.8

The EFRA select committee was scathing about the legislation in its suggested form and animal welfare bodies continue to exert pressure on the government to act. Anecdotal evidence is that the government still wishes to follow the basic principle of taking sentience into account but specific proposals are yet to emerge. This article now moves to address some of the issues raised by the controversy regarding bringing Article 13 of TFEU into UK law, the debate over clause 30, the public relations backlash and subsequent Government attempts to solve the issue through the doomed Sentience and Sentencing Bill. What, precisely are we trying to protect in relation to animal welfare and sentience? What is the EU’s record on animal welfare since the introduction of Article 13 as compared to the UK? What do we mean by sentience? ‘Sentience’ in animals has been recognized for hundreds of years.9 Bentham’s famous quote: The question is not, Can they reason? Nor, Can they talk? But Can they suffer?’ is an acclaimed call to recognize the sentience of animals and their capacity to feel pain.10 There is a myriad of examples of both UK and EU legislation introduced to protect animals on the

9 Brooman, S., and D. Legge. (1997). Law Relating to Animals, London: Cavendish Publishing, chapter one; Duncan, I. (2006). The changing concept of animal sentience. Applied Animal Behaviour Science, 126, 11-19, at 11. 10 Bentham, J. (1789). A utilitarian view. Animal rights and human obligations, 25-26.


http://www.casj.org.uk/animal-protection-commission

https://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-8155#fullreport

https://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-8155#fullreport

25

basis of a recognition of sentience i.e. suffering. More recently, legislation requires more humane husbandry of animals in terms of providing environments to alleviate stress. In many ways, contemporary discussions about sentience mirror discussions regarding ‘animal rights’ in the animal welfare movement. The term gave its name to a movement, the Animal Rights Movement. However, at its heart was a different discussion that was cloaked by the use of this term to define a number of philosophical positions. Conversations about animal rights have centered on what we need to protect with some, such as Tom Regan, taking a hard rights stance that accords animals rights akin, but not the same, as human rights.11 Others have taken a different approach such as the utilitarian stance suggested by Peter Singer.12 Space does not allow us to completely unpick these arguments here but at their heart lies a discussion based around sentience. Those discussions have centered on what needs protection based upon the sentient qualities of animals concerned. Should apes be accorded rights close to those of humans? Are mammals deserving of greater protection than cephalopods?

In this context, the debate about bringing a version of Article 13 into UK law reignites this discussion within a more accurate framework that was never provided by discussions centered on giving animals rights. Now we find ourselves at the heart of real issue. What is it about animals that we need to protect? How should this be done and what should the legal framework look like?

11 Regan, T. (1987). The case for animal rights. In Advances in Animal Welfare Science 1986/87 (pp. 179-189). Springer, Dordrecht. 12 Singer, P. (1995). Animal liberation. Random House.

In order to answer these questions, we need first to define what we actually mean by ‘sentience’. Almost all writers in this area acknowledge the part played by the Brambell Committee from which grew contemporary discussions about the relationship between animal sentience and human’s exploitation of animals as a resource. It recognized that sentience was not just a measure of intelligence but required that farm animals’ more basic needs such as the freedom to move and have adequate provision for comfort should be catered for. The Brambell Report subsequently affirmed by the Farm Animal Welfare Council in 1993 provided the starting point for definitions of sentience that need protecting in farm animals:13

• Freedom form thirst, hunger and malnutrition;

• Freedom from discomfort; • Freedom from pain, injury and disease; • Freedom to express normal behavior and; • Freedom from fear and distress.

However, these ‘freedoms’ were created in the context of accepting that animals could be used unquestionably in agriculture as long as these freedoms were provided for. What they did not take account of was a growth in opposition to the use of animals, certain species, or certain types of raising animals for food because the basic needs of the animals is compromised and cannot be justified simply by human desire for animal products. In addition, the freedoms were obviously context specific and did nothing to address other areas of animal use such as experimentation, domestic animals, circus animals and animals taken from the wild, to name but a few. The concept of animal sentience now embraces notions of biological response needs, stress and mental well-being centered around a natural state of living for an animal. These new definitions have a relationship with Brambell’s five freedoms but give us a more

13 Brambell, F. W.R. (1965). Report of the technical committee to enquire into the welfare of animals kept under intensive livestock husbandry systems. (Command Rep. 2836). London: HMSO.

‘The concept of animal sentience now embraces notions of

biological response needs, stress and mental well-being centred

around a natural state of living for an animal.’


26

complete picture of what needs protection. Carenzi and Verga suggest that the original concept of protection related to animal husbandry has moved to considerations of emotion and protection of needs related to how animals perceive the world.14 One of the foremost contributors in the area of animal sentience and welfare is Donald Broom. He suggests that scientists have been slow to recognize complex abilities and feelings in animals even to the point of skepticism and hostility from anthropocentric elements of the scientific community.15 Broom suggests that all the needs of the animal need to be taken into account when deciding what is needed by an animal to secure its welfare. The importance of Broom’s work is that he recognizes the intrinsic philosophical challenges posed by scientific discovery about animal sentience. For example, if we discover that a species of animals recognise each other and have societal structures, this would have implications for the raising of such animals for food, especially if conditions did not allow this to occur. That would amount to a compromise of the animal’s welfare that might lead to stress and raise ethical questions about the true costs of the commodity produced. Broom also suggests that the full picture of animal sentience is complicated and requires expertise to interpret and apply. One such finding is that some animals showing higher sentient qualities are at times better at coping with adverse stressors than those with lower cognitive ability.16 This finding has implications to a legal system that aims to improve animal welfare according to sentience. Would decision makers under the proposed new system have the necessary knowledge and would there be consistency? It is difficult to see how this could be achieved without central coordination of the issues. Otherwise, the judgment and application of sentience might become a free-for-all with radically differing

14 Carenzi, C., and M. Varga. (2009). Animal Welfare: review of the scientific concept. Italian Journal of Animal Science, 8(1), 21-30, 23. 15 Broom, D.M. (2010). Cognitive ability and awareness in domestic animals and decisions about obligations to animals. Applied Animal Behaviour Science, 126, 1-11, 1.

application of subjectively influenced and arbitrary decisions. Any lawyer will tell you that laws should seek to remove inconsistency and bias, not to entrench it in UK law.

Marian Stamp Dawkins (2006) is also a well-known writer in the area of animal sentience and what it means for our approach to regulating the use of animals in the UK. She suggests that the overall reluctance of the scientific community to accept something suggested by Charles Darwin’s observations made in the late C19th may be due to something much more fundamental in human nature:

‘Why does not everyone accept that animals are sentient when for Darwin it was so obvious that animals do experience not only touch and pain but emotions as well?....it remains a profound mystery how a grayish lump of nervous tissue can give rise to the rich world of our subjective experiences.’17

This observation is, possibly, the most pertinent of all when it comes to recognizing sentience in animal and enshrining this in law. Consciousness is a miracle of evolution that is difficult to conceive in our own lives, let alone that of animals who do not appear to have the same form of awareness that we possess. The implication of this for law-making in relation to sentience is profound. What is it that we mean by the word and how can we ensure that those who interpret the law have the awareness themselves of what this means for individual species, in a variety of human-

16 Ibid, 8 17 Stamp Dawkins, M. (2006). Through animal eyes: What behaviour tells us. Applied Animal Behaviour Science, 100(1), 4-10, 5

‘Consciousness is a miracle of evolution that is difficult to

conceive in our own lives, let alone that of animals... The implication of

this for law-making in relation to sentience is profound.’


27

made environments and circumstances? If we were asking for consistency, there can be nothing more difficult than legislating for something that goes to the very root of our own existence and our subjective set of experiences which make up our own particular view of existence. It becomes even more difficult to fathom how a government could conceive that a single clause would solve the problem, and that ministers ‘having regard to the welfare needs of animals as sentient beings in formulating and implementing government policy’ would adequately provide for a consistent and just law. Defining sentience is a task that has not been addressed by any proposal so far. It requires expertise in several disciplines including, animal husbandry, animal behavior, philosophy and law. Can we be sure that a minister, or ministerial department would have the skill-set to adequately fulfil this function? The complexities of defining sentience, and the 18 Sparks, P., and S. Brooman. (2018). Brexit: A New Dawn for Animals Used in Research, or a Threat to the ‘Most Stringent Regulatory System in the World? UK Journal of Animal Law 1 (2), 1-10.

inconsistencies that are likely to develop, add authority to calls for an independent body of oversight such as an animal protection commission. Does EU law protect animal sentience as well as the UK? What would we lose if we fail to bring the EU concept of sentience into UK law? There is no doubt that, in areas such animal experimentation, the EU has acted as a driver for change in animal welfare.18 The European Commission lists a number of milestones in improving animal welfare that have been achieved by the EU including the ban on conventional cages for hens, more respect for the behavioral needs of pigs, the ban on cosmetic testing and its influence on non-EU countries.19 However, a recent report commissioned for the EU indicates, that despite citizen’s concerns about the welfare of animals, the EU has failed to create a set of laws that adequately

19 European Commission. (2012). Milestones in improving animal welfare. See https://ec.europa.eu/food/sites/food/files/animals/docs/aw_infograph_milestones_en.pdf


https://ec.europa.eu/food/sites/food/files/animals/docs/aw_infograph_milestones_en.pdf

https://ec.europa.eu/food/sites/food/files/animals/docs/aw_infograph_milestones_en.pdf

28

protect animal welfare.20 There have been a significant number of directives and regulations passed ranging from those targeted at specific practices such as protecting animals during slaughter,21 to the prohibition of leghold traps22 and the protection of farm animals generally.23 However, the 2017 report suggests that there are striking omissions in legislative coverage for several species including rabbits, cats and dogs.24 In relation to fur-farming, it has been suggested that the EU is actually a major protagonist in an industry that attracts significant concern because of the welfare of wild animals kept in conditions of close confinement. Several countries including the largest fur producer, Denmark, regard animal fur as a legitimate source of revenue despite other countries in the EU such as the UK and Croatia banning the keeping of animals for their fur.25 This illustrates how a wide range of cultural attitudes to animals in the EU has sometimes created inertia to change. Religious slaughter has proved difficult to tackle because of the clash with human rights which is a primary principle for the EU and includes the right to religious freedom.26 It can be concluded that the EU has acted as a force for positive change in countries that had very weak legislation. However, there are now calls for the EU to address areas of serious deficiency such as those mentioned above and others such as the production of foie gras, circus animals, dog breeding and the trade in endangered species. It appears that the inclusion of Article 13 of the Lisbon Treaty has not changed inherent cultural attitudes or created a pan-European set of morally consistent laws on animal welfare. In contrast, the UK has a long history of animal welfare reform going back to the C19th. It began with control

20 Broom, D. M. (2017). Animal welfare in the European Union. Brussels: European Parliament Policy Department, Citizen’s Rights and Constitutional Affairs, Study for the PETI Committee, 24-27. See http://www.europarl.europa.eu/RegData/etudes/STUD/2017/583114/IPOL_STU(2017)583114_EN.pdf 21 Directive 74/577/EEC 22 Regulation (EEC) 3254/91 23 Directive 98/58/EC 24 Broom, D., above n. 15, 47.

of the use of cattle in local baiting rituals,27 animal experiments28 and the abuse of animals used as dray animals and elsewhere.29 The birth of the Society for the Protection of Animals in 1825 (prior to its receiving Royal approval and the addition of the ‘R’ in RSPCA) is evidence of the changing awareness that occurred in Victorian Britain. The list of first-time legislative protection of animals is impressive when compared to other countries and supra-national bodies such as the EU.

At the heart of these legislative changes is one issue – sentience. All these protective laws recognize that animals are able to suffer because of their ability to feel pain and many other physiological and psychological needs. The UK has, historically, been the most active country in recognizing animal sentience. This begs the question – in its current form, and without any form of central co-ordination and accountability, what would be added by an act that merely asked sentience to be taken into account? Conclusions: what is the best way to protect the sentience of animals in law? What are we concerned about?

Initial reaction to the failure of the sentience bill was understandable because of the symbolic status the bill

25 Brooman, S. (2018) Politics, Law and Grasping the Evidence in Fur Farming: A Tale of Three Continents. Journal of Animal Ethics, in print. 26 Brooman, S. (2016). In Search of the Missing Ingredient: Religious Slaughter, Incremental Failure and the Quest for the Right to Know. Journal of Animal Ethics, 6: 2, 153-63. 27 An Act to prevent the cruel and improper Treatment of Cattle D 1822, 3 Geo, C 70 28 Cruelty to Animals Act 1876 29 Cruelty to Animals Act 1849.

‘It appears that the inclusion of Article 13 of the Lisbon Treaty has

not changed inherent cultural attitudes or created a pan-

European set of morally consistent laws on animal welfare.’


http://www.europarl.europa.eu/RegData/etudes/STUD/2017/583114/IPOL_STU(2017)583114_EN.pdf

http://www.europarl.europa.eu/RegData/etudes/STUD/2017/583114/IPOL_STU(2017)583114_EN.pdf

29

had acquired. However, standing alone without the oversight of an animal protection commission, it may not be the answer many thought it to be. At the time of the infamous NC30 vote, the government had to fight hard to ward off the impression that they considered animal welfare to be adequately dealt with elsewhere under the Animal Welfare Act (2006). The fears this raised is illustrated by the initial reaction of the UK Centre for Animal Law (A-law):

‘It is reasonable for animal protection groups to be concerned that Parliament has not set the framework within which policy choices affecting animal welfare are to be made by whoever is given the power to make those choices after Brexit.’30

In a collateral development, A-Law worked with the Wildlife and Countryside Link (2017) and a number of academics and professionals with expertise in Animal Law to produce a report on the implications of Brexit in several areas of our relationship with animals including, for example, agriculture, scientific experimentation.31 The requirement in Article 13 is considered (A-Law and CL, 2017, p. 5) to be an underpinning principle to the specific suggestions made in the report regarding animal welfare in those specific areas. The report is specific in terms of recommendations for the various areas of interaction between humans and animals including ending live exports, ending the trade in cat and dog fur and improving the scrutiny of animal experimentation. However, would a stand-alone provision on sentience achieve its aims and enable these issues to be resolved? Would a clause on sentience work? It is not suggested here that the UK has always been successful in providing for animal welfare. It is easy to sympathise with many of the reservations of those in

30 A-law. (2017). Briefing note on Brexit, Article 13, and “animal sentience”. UK Centre for Animal Law. https://www.alaw.org.uk/2017/11/a-law-releases-expert-legal-briefing-note-on-brexit-article-13-and-the-debate-on-recognising-animal-sentience-in-law/

the animal welfare community who suggest that regulation of the interaction between animals and humans is far from satisfactory in the UK. The recent public debate around the issue of sentience has been very welcome as it has invigorated and revitalised the imperative of reducing animal suffering. However, providing a workable system to take full account of animal sentience in UK law provides possibly one the greatest challenges ever faced by UK law relating to the welfare of animals. Sentience is difficult to define and our knowledge of it is ever-changing. The proposal is also a departure from the traditional route for introducing legislation onto the statute book that has usually had very specific aims for particular practices and species. The furore that followed the original parliamentary debate over Article 13, ignited by NC30 in November 2017 was based on the word ‘sentience’ – the word has attained almost mythical status – it is a defining word to signpost a different appreciation of the non-human animal. It symbolises those who appreciate the suffering practices conducted by humans for their own benefit. For lawyers, it comes laden with the baggage of uncertainty. What does it mean and can it maintain its value over time? This where there are doubts.

No-one working for the betterment of the situation regarding animals would ever doubt that animals are sentient and this deserves recognition in law. The point at issue is whether this can be best achieved in this particular form by incorporating a requirement to recognise sentience without also setting out how the duty will be made more meaningful. The experience in the EU is that, despite the existence of Article 13 in the Treaty of Lisbon, it has an inferior record of providing for animal welfare than the UK. The decision-making structure and variety of cultural views of animals in many countries is not conducive to the development of a philosophically coherent set of animal welfare laws. Perhaps the UK might do better?

31 A-Law and Wildlife and Countryside Link, (2017). Brexit: Getting the best deal for animals. Wildlife and Countryside Link and the UK Centre for Animal Law (A-Law). See http://www.alaw.org.uk/wp-content/uploads/Brexit-Getting-the-Best-Deal-for-Animals-Full-Report.pdf


https://www.alaw.org.uk/2017/11/a-law-releases-expert-legal-briefing-note-on-brexit-article-13-and-the-debate-on-recognising-animal-sentience-in-law/



http://www.alaw.org.uk/wp-content/uploads/Brexit-Getting-the-Best-Deal-for-Animals-Full-Report.pdf

http://www.alaw.org.uk/wp-content/uploads/Brexit-Getting-the-Best-Deal-for-Animals-Full-Report.pdf

30

The need for process, structures, possibilities for reform and accountability

The word ‘sentience’ has created a problem. Like the title of a movement, animal rights, it provides an attractive banner. It might not achieve what we intended because implementation is in the hands of those who may be more, or less, disposed to recognising the inherent value of animals. The decision of an individual, group or body on the need to take account of sentience comes loaded with a set of personal values that cannot be adequately controlled through legislation that simply requires that sentience be taken into account. What amounts to being ‘adequately taken into account’ to one minister, may be unjustifiable interference with long-standing practices to another.

It could be argued that this is ever the case and any system is bound to suffer from subjective interpretation. This is true, but a more robust system of accountability and safe-guards would provide a better chance of achieving the right decisions over time. Other questions can also be asked ahead of entrenching the current proposals into law: Who would provide the expertise in those institutions? How would such decisions be challenged? How would such institutions ensure they were working with the best available knowledge? There are so many such questions that cannot be answered by the simple requirement to take sentience into account that is provided in Michael Gove’s sentience bill. A referral body with expertise in science, animal welfare, law and philosophy is more likely to provide a better answer on

32 Jenkins, Above n. 7

the requirements of animals than decisions made by numerous ministers and their departments.

The need for a new Animal Protection Commission

The idea of central oversight of animal protection is not new – a minister for animals was suggested by Jenkins in 1992,32 and the emergence of sentience as a key issue in animal welfare arguably makes the suggestion even more pertinent. The need for consistency across legislative provisions is clearly highly desirable and it is difficult to see how a legal requirement to take account of sentience in law and policy making would have ‘teeth’ if it was not given the support of external accountability and expertise.

In the current political landscape, it is more fashionable for such activities to be delegated to agencies outside the direct reach of government, such as the Farm Animal Welfare Council, rather than to place them in central government as a ministry/department. This model would be a viable alternative worthy of consideration in the case of a new body tasked with overseeing animal welfare and sentience in UK law. Where the body would sit, independently or as part of EFRA, is open to debate.

There are concerns that a conflict of interest might arise between anthropocentric proposals for the environment that are odds with the sentient interests of animals, including their habitats. An essential element of the sentience debate is that animals should not be treated as things as is the case with the environment.

The key benefit of creating a body outside government is that it would avoid the potential for political interference from other ministers, the cabinet or members of a political party seeking to please their constituents. Such a body could be made up of appointed experts in the field of animal sentience. This would include scientists, philosophers and academics as well as those with expertise of implementing policy. It could be overseen by EFRAC to ensure its accountability for public funding.

‘A referral body with expertise in science, animal welfare, law and

philosophy is more likely to provide a better answer on the requirements of animals than decisions made by numerous

ministers and their departments.’


31

Such a body could recommend changes in policy for government departments based upon emerging evidence. This would put in place a system and structure that could deal with the ever-changing face of sentience. Such a body could invite contributions or expertise from outside to gather the best knowledge available. It could act as a driver to change in the recognition at policy level of what is already understood in science and philosophy. It could make recommendations dispassionately based on the evidence, free from political interference in previously politically sensitive areas. We could review the law relating to animals in some of the four main areas of the Brexit report.33 This could act as the template for areas of review regarding animal welfare – domestic, experimentation, farming, wild and companion animals. The issues that need reform are already in the public domain.

33 Brexit: Getting the best deal for animals, above n. 25.

If the proposed law is left unchanged it will leave many feeling better that sentience is written into UK law. However, problems might follow as the new policy is implemented and interpreted. What of the minister who unveils and unpopular law which reduces animal welfare because of competition in post-Brexit Britain? He argues that he has considered the sentience of animals, but concludes that the overwhelming need to protect British producers is paramount. It could lead to reform denied on the grounds that sentience was given due consideration and the matter is closed.

Acknowledgment

My thanks go to Paula Sparks at A-law for her comments and thoughts on an earlier draft of this article.


32

Comment: Why the International Vegan Rights Alliance looks to human rights to emancipate nonhuman animals Dr Jeanette Rowley, Founder of the International Vegan Rights Alliance

Background and philosophy of the International Vegan Rights Alliance (IVRA)

In 2012, I introduced the idea of using law to promote veganism at the Luxembourg International Animal Rights Conference. Sometime previously, I had written a largely uninformed, polemic response to the removal of examples concerning veganism from the Equality and Human Rights Commission’s (Draft) Code of Practice. This Code of Practice was published as a guide to help employers understand and apply new Equality legislation. It referred to veganism as an example of a non-religious philosophical belief that was likely to be within the scope of equality law:

A person who is a vegan chooses not to use or consume animal products of any kind. That person eschews the exploitation of animals for food, clothing, accessories or any other purpose and does so out of an ethical commitment to animal welfare. This person is likely to hold a belief which is covered by the Act.1

The Draft Code of Practice explained that large companies with extensive resources could accommodate vegans, and thus comply with the new

1 The Equality and Human Rights Commission, ‘Employment Statutory Code of Practice: Draft for Consultation’ (The Equality and Human Rights Commission 2009, 32) available at< https://www.elaweb.org.uk/sites/default/files/docs/Draft%

legislation by providing separate kitchen facilities and equipment, including colour coded cutlery and cleaning items. The guidance advised that smaller companies with fewer resources should also show respect for those with needs relating to sincerely held convictions and ensure provisions were made.2

As a long-standing vegan animal rights activist frustrated with the institutional disregard for the basic rights of nonhuman animals, and as a mother who had raised three vegan children during the 1980s, I was overjoyed that these examples had been included in the explanatory guidance to equality law. The European Court of Human Rights had heard a UK case about veganism in the early 1990s3 and, seemingly, without analysis, discussion or a contest from the UK, the Commission (as it was then) found that on account of ethical convictions relating to the welfare of nonhuman animals, veganism was a belief that came within the scope of the right to freedom of conscience under Article 9(1) of the European Convention on Human Rights. Despite Article 9 being applicable to human individuals, this finding arguably acknowledges that ethical responsibility to other animals is somewhat uncontentious.

20Employment%20Code%20of%20Practice%201109798532.pdf> accessed 3rd April 2018. 2 Ibid (252). 3 H v United Kingdom (1993) 16 EHRR CD 44.


https://www.elaweb.org.uk/sites/default/files/docs/Draft%20Employment%20Code%20of%20Practice%201109798532.pdf



33

Since equality law has its roots in the principles and provisions of human rights, I felt that protection for vegans gave the animal rights movement additional power, and that there was real potential for change, not through the dissemination of more philosophical concepts relating to the legitimate moral standing of nonhuman animals and their basic rights, but on the grounds of protection for human beings whose lives are directed by the ethical conviction that it is wrong to appropriate, exploit, oppress or abuse nonhuman life. Since nonhuman animals are designated property, commodified and denied basic rights in law, I felt that protection for vegans could have transformative potential because the legal claims of vegans, first and foremost, present the moral standing and basic rights of nonhuman animals.

The passages relating to veganism were, however, removed from the final version of the Code of Practice for employers. This was the impetus for a determined effort to bring about a global discussion of veganism in law and I embarked on a research PhD to embed veganism in human rights and equality law discourse.

This course of action led me to consider, in my thesis, the concepts and principles in the idea of human rights: what grounds the exclusion of other animals from the framework for protective rights and how and why we can speak of the legal equality of vegans. It also allowed me to critically assess current postmodern human rights literature that, despite having its roots in deconstruction, has thus far failed to deal with the

4 As is obvious from the way we care about animals, support the RSPCA, develop hundreds of treaties in the interest of other animals, decide freedom of expression cases in their favour and criminalise cruel acts. The problem is the lack of logic in our recognition of ethical responsibility, the

human-nonhuman boundary and animal rights, failed to identify the intersection of human and nonhuman rights or acknowledge that the inclusion of vegans brings human rights to a threshold where the moral standing of nonhumans is, paradoxically, visible. At the outset of my studies, I also formed the International Vegan Rights Alliance.

The idea behind forming a vegan legal alliance was to develop a supportive and collaborative network of vegan legal professionals who appreciated the transformative potential of using law to promote veganism. After all, doesn’t emancipation for nonhuman animals begin with changing ourselves, our institutions and our system of justice? The idea was supported by a web site and a series of presentations given in various parts of the world to activists, lawyers and academics.

The outcome is a global network of active vegan legal professionals and supporters, writing about various vegan law issues, lecturing in educational settings, and taking legal actions on behalf of vegans. In addition, the completed PhD thesis, which talks about a ‘vegan jurisprudence of human rights’, grounds and justifies the legal accommodation of vegans by highlighting the important philosophical foundations that explain why the identification of universal suffering is the bedrock of the human rights enterprise. Importantly, my work also explains why the accommodation of vegans under the article 9 right to freedom of ‘individual’ conscience violates the concept of universal suffering in that it does not acknowledge nor respect the fact that it is already a profound social good to extend ethical responsibility, care about, and not harm, other animals.4

Since, in my view, veganism is a manifestation of an existing, broad ethical regard for other animals, there should be no concept of a case concerning ethical responsibility to nonhuman animals being adjudicated as a matter of protection for personal and private conscience.5 My thesis exposes and explains the

exclusion of nonhuman animals from justice and the oppressive thematization that perpetuates their subjugation and oppression. 5 Interestingly, Judge Pinto’s dissenting judgment Herrmann v Germany App No 9300/07 (ECtHR, 26th June 2012)

‘The idea behind forming a vegan legal alliance was to develop a

supportive and collaborative network of vegan legal

professionals who appreciated the transformative potential of using

law to promote veganism.’


34

original violence of exclusive human rights for nonhuman animals and what needs to be done to give expression to natural, inclusive justice. In the absence of a much needed reorientation of the ethics of human rights, however, the right to freedom of conscience, as represented in the international Bill of Rights6 and in Article 9 of the European Convention on Human Rights7, has utility for vegans because it is the ground upon which the moral standing of nonhuman animals is brought to bear upon the idea of exclusive human rights and human rights practice. Claiming vegan rights under the right to freedom of conscience foregrounds the existing social acknowledgement of the moral standing of nonhuman animals and re-presents their basic right to be free from imposed arbitrary power and oppression.

So, what are the human rights philosophy and the international human rights principles that ground the idea of rights for vegans? And what can we hope to achieve internationally and regionally?

Grounding ‘vegan rights’ in philosophy

We can conceptualise rights for vegans by acknowledging our shared concern with the amelioration suffering. Philosopher Emmanuel Levinas explains, in a complex philosophy, how the authentic expression of suffering others impacts on us before we employ reason. He argues that we are not primarily rational, autonomous and self-legislating, but that we are essentially predisposed to acknowledge and respond positively in the face of suffering. Levinas argues that we have no choice but to respond to the authentic expression of precarious, mortal others. The ’suffering other’ speaks an unspoken question ‘here I am, how will you respond?’ It is a moment of awareness that motivates us to ethical action: as is clear in the idea of human rights.

Levinas suggests that the idea of human rights could only ever have come about because human beings

highlights the importance of an Article 9 right to freedom of conscience to provide protection for animals in the absence of other, formal recognition of their basic rights. 6 The International Bill of Rights is the combination of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR) and the

recognise duty in the face of the precarious, mortal other. The first right is not the right of the self but the right of the precarious, mortal other not to suffer further from the acts or omissions of subjects. This original duty to others is said, by critical human rights scholars,8 to have been derailed in the development of ‘individualised’ human rights. They argue that human society has become obsessed with individual claim rights for selves, rather than emphasise duty to others. In contrast, however, I would argue that the ‘individual’ claims of vegans are not claims for the self; they are claims made in recognition of the original moral imperative to respond to suffering others. In my view, the legal claims of vegans represent the original idea that grounds protective rights: that we are naturally motivated to ethical action in the face of suffering.

But modern human rights are, of course, confused. They respond to the immeasurably horrific events of World War Two in recognition of duty in the face of universal suffering, but they have retained the powerful enlightenment idea that the primacy of human reason is why nonhuman animals cannot be beneficiaries of protective rights. For Emmanuel Levinas, human reason is but secondary to the ethical event intrinsic to becoming aware of the authentic expression of mortal others. This philosophy inspires the conclusion that in the first instance, we are profoundly affected by the suffering of nonhuman animals, but we have created oppressive themes and categories to justify prejudice and deny them their basic rights.

In the absence of a framework for protective rights that includes nonhuman animals, vegans can, however, take advantage of the primacy of reason in human rights. The provision, in the international bill of rights, for the right to freedom of conscience, allows everyone the absolute right to work out their own religious or nonreligious ethical convictions. It prohibits coercion into a belief system that is not of ones’ choosing and

International Covenant on Economic, Social and Cultural Rights (ICESCR). 7 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) Article 9. 8 For examples, see the various human rights works of Costas Douzinas, Upendra Baxi, and William Paul Simmons.


35

lays the foundations for the rights of parents to institutional support to raise their children according to their own convictions. The right to freedom of conscience imposes strict limitations on interference. Interference can only be justified if there is a law that is necessary in a democracy for a very good reason, such as for public order, health or morality, or in recognition of the rights and freedoms of others. This right is honoured by Article 9 of the European Convention of Human Rights and made accessible in the UK in the Human Rights Act 1998.9 Importantly, manifestation of belief, free from unlawful interference, under the right to freedom of conscience applies to anyone whose lives are directed by compelling convictions, whether religious or non-religious in nature.

What can we hope to achieve internationally and regionally?

Globally, the application of the right to freedom of conscience is, of course, inconsistent Even in Europe, in Austria for example, vegans are excluded from legal provisions that would ensure that their children have access to suitable food at school.10 Vegans around the world are contesting their exclusion from protective measures that would ensure they receive, for example, equal advertising rights or appropriate food in public authority contexts, such as schools, prisons and hospitals. Actions are currently underway, for example, in England, Canada, Turkey, France, Germany, Austria and Italy, and all are grounded by the primary principle of the right to live according to life-directing ethical convictions.11

Regarding the importance of right to freedom of conscience, the European Court of Human Rights has been very consistent in its approach when deciding

9 United Kingdom: Human Rights Act 1998 [United Kingdom of Great Britain and Northern Ireland], 9 November 1998. 10 Austrian Maj Iur Petr Kudelka has written about this and will speak at the IVRA 2018 Conference. See: https://www.youtube.com/watch?v=d1FgBX9W6Tk 11 See for example Jeanette Rowley, ‘Vivisecting veganism: the double-edged sword of dairy's exclusive ownership of words’ http://www.lancaster.ac.uk/law/blogs/staff/vivisecting-veganism/ and Barbara Bolton

cases from prisoner applicants who have been denied suitable food that aligns with their convictions regarding compassion to ‘all living beings’. Though, under new efficiency measures, the Court has the power to throw out ‘trivial’ matters, it regards the provision of food according to ethics an important matter for human rights, has considered these cases and decided consistently in favour of applicants on the grounds that providing suitable food can be critical to ensuring the right to freedom of conscience.12

In the United Kingdom, vegans have some institutional support. Lord Walker, in R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246, commented that vegetarianism is an uncontroversial example of a belief coming within the scope of law. The Equality and Human Rights Commission explicitly includes veganism in the dissemination of information about duties under human rights provisions,13 and it is very likely that vegan convictions, though as yet untested, will be found to be within the scope of current equality law: veganism has already been cited as relevant in a successful equality case concerning an applicant who lost his job because he was against fox hunting.14 My colleague, Barbara Bolton, has contributed further discussion on vegan equality in the

‘Dairy’s Monopoly on Words: the Historical Context and Implications of the TofuTown Decision’ https://effl.lexxion.eu/article/EFFL/2017/5/7 12 See Jakóbski v Poland App no 18429/06 (ECtHR, 7 December 2010) and Vartic v Romania (no 2) App no 14150/08 (ECtHR, 17 March 2014). 13 Equality and Human Rights Commission: https://www.equalityhumanrights.com/en/human-rights-act/article-9-freedom-thought-belief-and-religion 14 Hashman v Milton Park Dorset Limited [2011] EqLR 426 (ET)

‘Importantly, manifestation of belief, free from unlawful

interference, under the right to freedom of conscience applies to anyone whose lives are directed

by compelling convictions, whether religious or non-religious

in nature.’


http://www.lancaster.ac.uk/law/blogs/staff/vivisecting-veganism/

http://www.lancaster.ac.uk/law/blogs/staff/vivisecting-veganism/

36

UK in her article addressing a recent discriminatory job vacancy, posted by the National Health Service.15

The idea of using law to promote veganism and protect vegans is important in order to liberate a dogmatic society that has entrenched arbitrary power and prejudice against other living beings; nonhuman animals that are oppressively thematised, commodified and subjected to unimaginable, off-the-scale violence for human profit. It is a fact that human society has already acknowledged the authentic, unspoken expression of nonhuman animals that says ‘I am here’: we see them; we know they are living in community with us and we have observed and recognised their ‘sentience’ in treaties and domestic laws. But we have failed to respond ethically to the question posed in that moment of recognition: ‘what will you do now?’

The inclusion of vegans in human rights and equality provisions is a productive paradox. Inclusion creates a space for vegans to re-present the authentic expression and natural moral standing of nonhuman animals to human justice to obtain the ethical response, ‘yes your claims are uncontentious, nonhuman animal suffering matters and justice will be done in the light of their moral standing’. We may not yet know the extent of the utility of the legal claims of vegans, but in the absence of a framework for animal rights or inclusive protective rights on the grounds of universal suffering, the demands and successful claims

of vegans, despite being adjudicated as individual matters of conscience, can contribute to dismantling speciesist prejudice because they help shift the balance of power by bearing heavily on exclusive human rights.

About the IVRA

The International Vegan Rights Alliance is a grassroots, not-for-profit network of individuals, and the foundational and leading authority on the subject of veganism and law. The principles and facts that ground the existence of the IVRA have been promoted since 2012 to encourage the growth of a network that can advocate in a new way for nonhuman animals. This knowledge base is enhanced by network members from around the world, who have unique and specialist knowledge of the relationship of veganism to law in their respective countries. The ethos of the IVRA is that veganism is the lived expression of ethical responsibility to nonhuman animals. Under international law vegans are entitled to a social order that respects their right to live according to the ethical conviction that it is morally wrong to appropriate, abuse and exploit nonhuman animals. The IVRA is the first vegan rights pressure network that aims to raise awareness of the legal recognition of veganism and how vegans can be accommodated under the terms of international and European rights and equality legislation.

15 Barbara Bolton, ‘In the Courts: Vegan Rights in the UK’ https://l2b.thelawyer.com/vegan-rights-uk/


A-law, c/o Clair Matthews, Monckton Chambers, 1&2Raymond Buildings, Grays Inn, London WC1R 5NR Email: [email protected] Visit: www.alaw.org.uk Follow us on Twitter, Facebook, Instagram & LinkedIn

the uk journal of animal law€¦ · 307802 - england). registered charity: 113462 the views...

Documents