Followers of online commentator David Allen Green will be familiar with his (increasingly exasperated) observation that constitutional law is supposed to be dull; if constitutional issues dominate the front pages or otherwise seem exciting, this tends to mean that something is going wrong. It’s a take that has its appeal – but I’ve recently come round to the view that it isn’t always true. Sometimes, exciting things can slip under the radar – and it appears that, amid the political noise emanating from Westminster, this may have happened earlier this year. For on 28th April a potentially far-reaching piece of legislation entered into law, one that I believe has yet to garner the scholarly or media attention it deserves.
The Animal Welfare (Sentience) Act 2022 is a short piece of legislation of only six sections. The main purpose of the Act is the creation of a new Animal Sentience Committee (s.1; hereafter ‘ASC’). Comprised of independent, non-partisan experts from a range of relevant fields, their role is to scrutinise the extent to which the formulation or implementation of government policy has paid ‘due regard to the ways in which the policy might have an adverse effect on the welfare of animals as sentient beings’ (s.2(2)). Although the actual impact of the Act is as yet uncertain – to be expected given that, at the time of writing, the membership of the ASC has yet to be formally announced by the Department for Environment, Food and Rural Affairs – I hope that this post will show why the future operation of the ASC is not only of interest to Animal Lawyers, but to Public Lawyers more broadly.
The Scope of the Act
Before I locate the legislation in the broader constitutional landscape however, I would like to begin with a few words on its scope. Although not quite as counter-intuitive as the recent decision of a California Court that held bees were fish, the Act’s name remains misleading; for rather than applying to all animals, or even all sentient animals, the legislation only applies to a limited list of beings provided for in s.5 (1), namely:
- any vertebrate other than homo sapiens,
- any cephalopod mollusc; and
- any decapod crustacean.
Whilst vertebrates have come out of this section well, far fewer invertebrates are within the scope of the legislation – with only cephalopod molluscs (octopus, squid or cuttlefish are common examples of cephalopod molluscs found in UK waters) and decapod crustaceans (such as lobsters, crab, shrimp, prawns and crayfish) considered deserving of inclusion. Good pragmatic reasons may exist for this limitation; should insects or marine invertebrates be included within its remit, the ASC may find itself overwhelmed and less able to spend time scrutinising policy that affects animals considered of greater moral – or even economic – significance. But given invertebrates are the most common form of life on earth, research increasingly suggests evidence of sentience, and their existence is vital for the protection of the ecosystems on which we depend for our own survival, their exclusion remains notable.
Discretion and the ASC
This is doubly so given the wording of section 2(1) of the Act, which discusses the scope of the ASC’s role. It does not require them to scrutinise all government policy; it merely gives them the power to scrutinise, which appears to be functionally equivalent to a wide discretion to select specific policies they feel are deserving of their attention.
Further discretion appears to be built into their role with regards to their interpretation of the key inquiry they are empowered to make. ‘Due regard’ is not defined within the legislation, meaning the ASC themselves may have a significant role in interpreting the term – and by extension, determining how the executive ought properly to pay ‘due regard’ to animal welfare concerns.
A broad reading of the term is possible; given the purpose of the Act is to consider the adverse impact policy may have on nonhuman animal interests, a functional reading of the legislation may allow the ASC to ask whether the policy in question is the one that has the least detrimental impact possible. This would have the potential to severely limit the range of permissible policy options available to the executive. Yet, although perhaps unlikely given expert panels tend to want to discuss what they perceive as pressing aspects of policy within their mandate, a narrow reading seems equally plausible: one in which a more deferential ASC membership merely asks whether these interests were acknowledged, even if ultimately disregarded. Much here appears to depend on the ASC’s composition.
Reports of the ASC
However the term comes to be interpreted, if the ASC feel due regard has not been paid they are entitled to issue a report that contains recommendations on how it can be paid in future formulation and implementation of the policy (s.2(3)-(4)). Reports are to be published in a manner the ASC sees fit (s.2(6)), and cannot address issues relating to devolved competencies (s.2(7)-(8)); a discussion of the merits (or otherwise) of a joined-up, UK-wide approach in collaboration with devolved legislatures is beyond the scope of the present post). The Secretary of State is then required by section 3 to lay a response before Parliament no later than three months after the report is issued, though the clock ceases to tick when Parliament is in recess, prorogued or otherwise not sitting.
There is no statutory duty for the minister to accept the recommendations of the ASC, meaning how binding these reports are viewed to be once issued remains to be seen. Perhaps the ASC may find itself in a position similar to the Advisory Council on the Misuse of Drugs – often disregarded, yet working quietly and unseen in the background until it tackles an issue of contemporary political controversy and the spotlight is shone on its existence. But we cannot completely disregard the possibility that the executive may instead view their reports as possessing a high level of political bindingness, and thus creating an important additional check and balance on executive power. The very fact that this latter option is on the table at all is itself notable; but it seems hard to overstate how revolutionary it is that it might emerge from the interests of nonhuman animals.
An Extra Layer of Legislative Scrutiny
But the view from the executive is only one half of the story. As with select committee reports, there is no obligation to devote Parliamentary time to debating the findings of the ASC. How the legislature will treat their reports therefore remains to be seen; will they be taken up only by individual MPs who already have an active interest in nonhuman animal affairs, or will they instead feature as a new and valuable tool for select committees in their scrutiny of government business?
Again, we can only speculate at this stage. No obligation exists on select committees to follow up on ASC reports, meaning their impact may be subject to the usual political machinations of Westminster – thus limiting the potential for cut-through to broader legislative debate; but there is a possibility, however unlikely, that they may come to be seen as a new and apolitical means through which to scrutinise draft legislation and policy formulation.
Of particular interest for animal lawyers here is the impact of reports on an apparent hierarchy of animals that appears to exist in present legislation, whereby the extent to which their interests are protected or otherwise considered depends on their status in human society. A good example of this is the high proportion of legislative time spent increasing protections for companion animals – such as the new offence of ‘dognapping’ proposed by the Pet Taskforce last year – compared to the comparatively minimal time spent addressing the needs of farmed animals. This hierarchy is not acknowledged in the Act, and ought not to feature in reports of the ASC – so the weight that the legislature gives to it when using said reports is certainly one to watch.
Though there is scope for significant impact here, my inner realist is more cautious when viewing the legislation alongside that of other jurisdictions. For example, Art 20a of the Grundgesetz (amended 2002) declares the protection of the natural bases of life and all animals an objective of the German State, to be achieved in accordance with both law and justice and through both executive and judicial action (translation my own – apologies for errors). Though non-justiciable, this is of great symbolic significance insofar as nonhuman animal interests are granted explicit constitutional protection, which necessarily informs both the creation and interpretation of all other legal rules.
Although the Animal Welfare (Sentience) Act does not go this far explicitly, it has the potential to go further insofar as, for the first time, the interests of nonhuman animals have been given express consideration as part of the UK’s legislative processes. The breadth of the drafting of the Act means that both the ASC and Parliamentarians have wide discretion to determine both the scope of their remit and the weight given to subsequent reports, but once their approach has settled we will see the protection of nonhuman animal interests embedded in our constitutional order. That due regard must be paid to such interests during both the formulation and implementation of governmental policy institutionalises their consideration procedurally as well as substantively, and this approach is very different to that chosen by other jurisdictions.
Much remains to be seen in terms of the success of this approach. My colleague Dr Rachel Dunn (Twitter) and I hope to be able to answer some of these questions in due course, as we are hosting the 2023 SLS Annual Seminar at Newcastle University with the aim of assessing the impact of the Act one year on. But until then, one thing is certain – the shift to actively consider nonhuman interests as part of our legislative process is, at the very least, proof that constitutional law need not be dull.
My thanks to Prof Colin Murray and Dr Hélène Tyrrell of Newcastle Law School, and Zoe Tongue of the School of Law, University of Leeds, for their comments on an initial draft of this post. All errors remain my own.
(Suggested citation: J. Jowitt, ‘Some Thoughts on the Animal Welfare (Sentience) Act 2022’, U.K. Const. L. Blog (7th September 2022) (available at https://ukconstitutionallaw.org/))