By Georgia Croucher
University of Sussex, year 3
“Animal suffering is fine if it is necessary.” Just how far does the law go to protect animals?
This article investigates the relationship between humans and animals in the eyes of the law, in relation to the difference in rights and protections afforded, the impact this has on the concept of equality and of “necessary suffering,” with respect to UK and EU legislation. Comparisons are drawn to US law and education regarding the field of animal welfare law. This essay attempts to establish whether it is possible to have a society we can truly call ‘equal’ if animals are continually mistreated in ways that would never be acceptable in relation to humans, by looking at rights available to animals in comparison to humans and assessing attitudes of the law towards animal welfare issues. Finally, I suggest ways in which attitudes and laws may be improved through better education and wider publication.
Animal rights law is a perfect example of how justice for all extends beyond human rights. This article’s main focus will be the idea of the ‘necessity’ in relation to animal suffering (UK Animal Welfare Act 2006 s4). This poses the following questions: What is ‘necessary’? What is ‘suffering’? and Who gets to make these decisions? In the UK, the Equality Act (at least tries to) cover equal treatment of people by other people, although there are occasions where this may appear blurred; for example, the fact that there is still a gender pay gap suggests that equality has still not been achieved even with such an act. Animals are not protected in the same way. They are eaten, beaten, tested on, worn, farmed, taken away from their mothers hours after birth and forced to perform for the benefit of humans. It is no wonder that there is legislation in place to stop humans being exploited in this way; the European Convention on Human Rights coming from the Council of Europe, HRA and the Equality Act as British legislation, and in the US there are inalienable human rights guaranteed by amendments to the Constitution, then there is the Universal Declaration of Human Rights – applicable to any nation which has signed it. But what is there for animals? I aim to answer this question and also demonstrate just how paradoxical the treatment of animals is in comparison to humans and suggest what could be done in order to truly guarantee equality for all.
Animal rights law in Britain
The tone of this piece is not intended to be ‘preachy’, nor is it an attack on the UK’s current legal system, quite the opposite – in fact, the United Kingdom was the first country in the world to implement laws protecting animals – it is merely to highlight that ‘justice for all’ should, in my opinion, include animals and the extent to which this is possible. In 1822, the Cruel and Improper Treatment of Cattle Act was passed by Parliament as one of the first pieces of animal protection legislation in the world, later replaced by the Cruelty to Animals Act 1849. In passing the 2007 Animal Welfare Act the government acknowledged that animals are ‘sentient beings, not merely commodities,’ confirming its commitment to the highest possible standards of animal welfare.1 This Act replaced the earlier Protection of Animals Act of 1911. It is a general piece of protective legislation as it covers protection of owned animals including pets, farm animals and certain primates, which was previously separate legislation. Other examples of animal welfare law in the UK are: The Performing Animals (Regulation) Act (1925), The Pet Animals Act (1951; amended 1983), The Dangerous Wild Animals Act (1976), The Zoo Licensing Act (1981). Even though there are laws in place to protect animals they fail to protect animals’ rights on par with those of humans.
Human rights in Britain (European Convention on Human Rights Human Rights Act and Equality Act)
The European Convention on Human Rights (ECHR) is a treaty that member states of the Council of Europe signed to guarantee human rights and freedoms of their citizens and democracy of their society.3 Human Rights Act is a UK law passed in 1998 which came into force in 2000. It means that you can defend the rights and fundamental freedoms detailed in the ECHR in the UK courts, these rights belong to everyone regardless of nationality and everyone must be treated equally, with dignity and respect. Prior to the Equality Act there were a number of acts that covered areas that affected human rights and equality, so the 2010 act was introduced to cover everything in one solitary piece of legislation. The act outlines nine particular characteristics which you cannot discriminate people by: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex/gender; and sexual orientation.4
Relationship between animal and human rights law
Now, to contrast this with animal rights law, there are laws to protect animals from harm and exploitation, but they are not as well enforced as are those for humans. In certain situations, acts that we may categorise as ‘cruel’ in the case of humans, we choose not to view as cruel to animals, such as removing a calf from its mother within 48 hours of birth. With this example in mind, I want to draw attention to the difference between our protective words and our abusive actions as humans towards animals. It was noted by barrister and Association of Lawyers for Animal Welfare (ALAW) policy director, Alan Bates that, “the reality gap between the broad protective language used by much of the legislation enforcement and the paucity of the protection actually afforded to animals”5 needs to be closed. There cannot be such a paradox between laws and actions. Interesting points were made throughout R (Compassion in World Farming Limited) v Secretary of State for the Environment, Food and Rural Affairs (2004), which used phrases such as “responsibility for animals,” “prevention of harm” and “unnecessary suffering.”6 Such protective language is a direct contradiction of “unnecessary suffering” is that undergone by animals being trained for circuses or tested on for cosmetics (this will be discussed in greater depth later); this illustrates the gap between what is being said and what is being done. Bates then goes on to discuss the idea that the legislation we have in place implies that it is perfectly fine to cause the suffering of an animal if it is “necessary,” and mentions s1(1) of the Animals Act (1911) as being the piece that purports this situation.7
If we were then to contrast this idea of necessity with our own human rights, is there legislation in place that states it is acceptable to cause a human suffering as long as it is necessary? To a certain extent yes, in times of war, it is not unlawful to cause harm. The English definition of murder is: “Unlawful killing of a human being under the Queen’s peace,”8 meaning that in wartime, when the Queen’s peace is disturbed, it may not always be deemed unlawful to have caused the death of another (with the exception of war crimes). A doctor or surgeon, for example, is allowed to cause someone suffering due to necessity – this is true, but as humans are intelligent beings, we are aware (usually) of what is happening to us and we know that it is for our own good. What would usually be a criminal offence, i.e. OAPA s20 ‘wounding’ (breaking of all layers of the skin – Eisenhower),9 now becomes a necessary means to a desired end—healing. However, the ending reached after an animal has been suffering is rarely a happy one. In a manner of speaking one may draw a parallel here with the death penalty in the US, where of course for the one confined, the ending is similarly not a happy one. With the exception of the death penalty, there is not much that compares to the organised suffering animals have to endure in procedures such as animal testing, or when wild animals are broken in as circus performers, and they are detained to the same point we would expect a human to be after committing a criminal offence. The difference is that the animal has done nothing wrong, and has no concept of why they undergo such mistreatment at the hands of humans. My point here is that the threshold for what is “necessary” suffering appears much lower for animals than humans. It should not be this way.
That being said, we are getting closer to the point where animals’ rights are starting to be brought in line with our own. For example, there was a ground-breaking Brazilian case that actually recognised an animal as a legal subject and not an object for the first time in history. The case is discussed in Ciro Brigham’s article, Historic Decision Recognizes Chimpanzee As Legal Subject.10 It demonstrates that it is now starting to be acknowledged that animals are not as separate from humans as some like to believe. If this can happen in Brazil in 2005, then 11 years on we should be seeing this kind of case all the time, but we are not. The case, Suiça vs. Zoological Garden of the City of Salvador 2005, involved a female chimpanzee, Suíça, whose mate had suddenly died. Suíça had been displaying symptoms of depression – it was recorded in 1992 that chimps can feel and show emotion, they have been witnessed to laugh when they play and cry when they grieve11 – and was visibly suffering whilst she was being held captive at the Salvador zoo in Brazil. The case was to become a petition for Habeas Corpus (A writ of habeas corpus is used to bring a prisoner or other detainee…before the court to determine if the person’s imprisonment or detention is lawful).12 This creative solution would only work of course if Suíça could count as a prisoner or even a legal person who is entitled to bodily integrity. There are a number of different definitions of prisoner, such as: “A person captured and kept confined by an enemy or criminal.”13 The key word used in all definitions, however, is ‘person,’ which obviously was up for debate in this case as Suíça was a chimp. In the end, Judge Edmundo Lúcio da Cruz ruled in favor of the chimp, establishing not that she was a person as such, but that she constituted a legal subject. Sadly, this ruling came the day after she passed away, but it was a huge step in the direction of human-animal equality. It is my hope that we will see more and more of this kind of case, as this would show that the law is trying to guarantee justice for all.
Is the world ready to treat animals as equals if it can’t treat people who hold that very belief as equals?
This may seem an unrelated tangent but it is actually more relevant than even I first thought. During the course of my research, I came across a UK case concerning the discrimination of a man who had supposedly been dismissed from his job for his anti-hunting and animal rights beliefs. The case in question is Hashman v Milton Park (Dorset) Ltd t/a Orchard Park (2011).14 Joe Hashman was a professional gardener and “lifelong animal rights campaigner” contracted by Orchard Park Garden Centre for long-term design work. He alleged that he was dismissed on the basis of his animal rights beliefs and because of the fact that he used to be a hunt saboteur, which made him unpopular with board members of Orchard Park because of frequent disagreements with their recently deceased farm manager, who was an avid hunter.15 It also became apparent that the board had a dislike for Hashman after evidence he provided as an investigator into animal cruelty led to the conviction of another fellow huntsperson. It was established that beliefs such as Joe Hashman’s do in fact count as “philosophical beliefs” and are therefore protected under the Equality Act of 2010.16 This demonstrates that the law will intervene when a person’s beliefs mean they are discriminated against, and is an example of where the Equality Act does provide justice for all by acknowledging that Animal Rights beliefs are perfectly justifiable and legitimate, and should in no way be criticized, just as religious beliefs should not be. So far, issues like this have really only been resolved once they have been taken to court but what now needs to be solved is the prejudice itself. There is no hope for equality between animals and humans if some people are willing to discriminate against people who believe in the mere idea of human-animal equality.
Finding the balance
From what can be seen above there is some justice, but not for all. Cases such as Hashman’s and Suíça’s suggest that the law is taking steps towards guaranteeing justice for all, but there is more that needs to be done. If animals deserve rights beyond what they have, this takes us back to my earlier point about “necessary suffering.” Who decides what is and what is not “necessary”? For humans, the European Court of Human Rights guides us in assessing whether interference with human rights is necessary. For animals, what is there? Actions which constitute unnecessary suffering are outlined in Section 4 of the Animal Welfare Act of 2006. The research into the effects of potentially lifesaving treatments for sick people is an incredibly important process and lamentably, at this moment in time, cannot be done without using animals, which of course suggests that an animal life is not equal to that of a human; and so the right to life of a human ( is directly brought up against the right to life of an animal. In this situation it can be deemed necessary to potentially end or lessen the life of the animal for the sake of the human.17 This brings us to whether it is necessary to test cosmetics on animals. One may argue that there is legislation governing animal testing in the same way there is legislation governing how prisoners can be treated. Small animals such as rats, mice and rabbits are effectively tortured in the process, yet under the ECHR, humans are protected against this kind of torture and degrading treatment.18 Cosmetic testing is not a pressing issue; no human life hangs in the balance and, above all, cosmetics themselves are not necessary for human survival, so how can the animal suffering be considered necessary? This is why the EU ban under the Cosmetics Regulation in July 2013 on the sale of animal tested cosmetics is another step towards justice for all; it recognizes that the rights of animals are as important as the rights of humans.
Another balance that needs to be struck is that between the rights of the hunter and those of the hunted. What is more important? The hunter’s right to do as he pleases on the basis of culture and tradition or the right to life of the animal? It is not a matter of life and death for the hunter – he is not going to perish due to lack of food if we were to take away his right to shoot an animal. There are laws to limit when and where hunting takes place and to restrict which animals are hunted19 but the fact remains that hunting is used as a leisure activity, not a means of survival, and therefore the end result of a dead animal is not a necessary one. There is yet to be a law passed that bans hunting altogether, and until this is done the law is not guaranteeing equality and justice for all.
What more needs to be done?
The law does play a role in protecting the rights of animals, and steps are being taken to ensure fair treatment, but where possible animals should have all the same rights as humans (obviously provisions such as the rights to religion20 and marriage21 etc. are not transferable, but the right to life and freedom from torture are). So what else can be done? An article written for Criminal Law and Justice Weekly entitled “Why we need an animal abuser registry” by animal lawyer Noel Sweeney may have the answer; he proposes that we should have an animal abuser registry just as we have a child abuser registry.22 This would protect animals in the same way humans are protected and would mean that they are treated as equals. In fact, some states and cities in the US, such as Tennessee and New York City, have animal abuser registries, making animal abuse part of the criminal law.
Another thing the law needs to enforce to give animals justice is more stringent checks on zoos and farms; phrases such as “free range” and “organic” are used all the time but do not always mean the animal had been treated with any more respect than a badly-farmed animal. This leads to thinking about lifestyle choices of individuals. Clearly the law cannot have too much of a role here without taking away our freedom of expression.23 Veganism is a way of putting an animal’s needs in line with our own and therefore viewing them as equal to us. This is an example of justice and equality extending beyond the law of any land; it is a matter of morality. Although veganism is a matter of choice, not law, it reflects the possibility of valuing animals rights as equal to those of humans.
Could education be the answer?
The fact that there is now an Association of Lawyers for Animal Welfare (ALAW) in the UK, whose mission statement is “to promote interest in animal protection law and campaigns to improve the law relating to animals…and to secure more comprehensive and effective laws, based on a coherent philosophy”24 suggests we have come a long way in the last 10 years. What can be taken from this is that the law is not doing all it needs to in order to enforce animal protection laws, if it was there would be no need for ALAW, however, having an organization like ALAW shows that there are legal professionals that are recognizing the problem and fixing it. In saying that, much more could be done, particularly in relation to education in this field. Education is the key to change, and currently in the UK there are only four25 – one is as recent as 2016 – courses in Animal Law, Welfare and Ethics and of these, only one is in England (the rest are in Scotland). Some aspects of animal welfare law are taught as topics within some modules in UK law schools. Sussex University, for example, touches on it in its environmental module, but as this is an optional subject, not all law students will come across it in their time at university. This is the same in most of the universities in the UK. In the US however, there are a variety of animal law courses as it is viewed as a more widely accepted practice area; the UK definitely needs to invest more time, money and effort into this ever pressing area. Having better access to relevant education and information is a key step in encouraging a whole generation of animal welfare lawyers, meaning the subject is brought out of its niche shell, hopefully leading to it being considered a core topic.
As this article has been written from the perspective of UK student, naturally it calls upon many UK and Council of Europe laws. When Britain voted to leave the European Union in the recent 2016 referendum26 the continuance of EU animals protections were brought into question. Article 50 aims to be triggered by March 2017 and it is estimated that it will be a 2-year process, so potentially by March 2019 the UK will no longer be subject to governance by the European Union. What then, will animal welfare law look like for Britain in 2019? There has been talk of the government translating all existing laws from Europe that already apply to us into domestic law, which should mean animals don’t lose any protection. However, the same government just (September 2016) gave the go-ahead for fracking operations to begin in towns and countryside,27 which will of course have an impact on the environment and the habitats of many wild species. It would seem that still more protection is needed, let’s hope this is taken into account in the drafting process.
As we have seen the law tries to reflect concerns for animal welfare, but regrettably in reality it doesn’t happen; at best it can be described as halfhearted, and at worst feeble. As I hope to have illustrated, we are heading in the right direction, with thinkers such as Hashman and organizations like PETA campaigning for animal rights and equal treatment of animals, more attention is drawn to the subject, and it is campaigns such as these which prompt legislation like the EU ban on animal tested cosmetics. Cases and campaigns such as those above force the law to be evaluated, and this in turn leads to the requirement for more animal law specialists.
With all of this in mind, I do not know that it can be said that we will truly have equality among animals and humans until animal rights are recognised in line with our own as humans. The main reason for this as discussed towards the beginning of the essay is that the Equality Act, and various other tools of the law written with the intention of achieving some form of equality, neglect to mention animals at all, so how can it provide justice and equality for all, if we are to take ‘all’ as meaning humans and animals alike. It cannot. Even the law specifically written for the protection of animals, such as the aforementioned Animal Welfare Act (2006), though it affords them some protection, does permit suffering if it is “necessary,” which would not be acceptable if applied to humans (except in cases of national security as previously mentioned). What needs to change is the general attitude towards animal rights; if people are constantly being discriminated against for promoting animal rights, as in Hashman, we are never going to reach a point where animals are viewed as equal. However, with cases like Suíça the chimp being recognised as a legal subject, there is still hope.
1 Ethics Guides by the BBC animal welfare archive. Retrieved from http://www.bbc.co.uk/ethics/animals/defending/legislation_1.shtml on November 7, 2016.
3 “Making sense of human rights,” October 2006 DCA 45/06. Produced by the Ministry of Justice, October 2006.
4 Equality Act 2010 s4.
5 Alan Bates. R v Secretary of State for the Environment, Food and Rural Affairs (case note) ALAW Spring (May) 2005, p.12. Retrieved from http://alaw.org.uk/articles/journalspring05ciwfbr.pdf on November 7, 2016.
6 Animal Welfare Act 2006 s3.
8 Murder in the UK is a common law offence.
9 Eisenhower 1984 QB 331.
10 Ciro Brigham 2005. “Historic Decision Recognizes Chimpanzee as Legal Subject,” Correio da Bahia, October 6, 2005. ALAW Journal of Animal Welfare (case note). Retrieved from alaw.org.uk/articles/historicdecisionrecognize0601.pdf on November 7, 2016.
11 Rod Preston and Ken Mafham. “Primates of the World,” New York: Facts on File, 1992.
12 “Habeas Corpus,” Wex Legal Dictionary. Retrieved from https://www.law.cornell.edu/wex/habeas_corpus on November 7, 2016.
13 “Prisoner,” Oxford English Dictionary. Retrieved from https://en.oxforddictionaries.com/definition/prisoner on November 7, 2016.
14 Hashman v Milton Park (Orchard) 2011 EqLR 426.
15 Hashman v Milton Park (Orchard) 2011 EqLR 426 write up by Blackmore Vale Magazine on October 28, 2011. Retrieved from https://www.theguardian.com/uk/2011/mar/09/hunt-saboteur-joe-hashman-landmark-ruling on November 7, 2016.
16 Hashman v Milton Park (Orchard) 2011 EqLR 426. As written up by Blackstone Chambers March 9, 2011. Retrieved from https://www.blackstonechambers.com/news/case-hashman_v_orchard on November 7, 2016.
17 Animal Welfare Act 2006 s.4.
18 ECHR Art. 3.
19 Hunting Act 2004.
20 ECHR Art. 9.
21 ECHR Art.12.
22 Noel Sweeney, “Why we need an animal abuser registry,” Criminal Law and Justice Weekly.May 10, 2013. Retrieved from https://www.criminallawandjustice.co.uk/features/Why-We-Need-Animal-Abuser-Registry on November 7, 2016.
23 ECHR Art. 10.
24 Association of Lawyers for Animal Welfare. Retrieved from http://alaw.org.uk/about on November 7, 2016.
25 Universities in the United Kingdom offering Animal Welfare, Ethics and Law MSc as of November 7, 2016:
1) University of Edinburgh –
2) University of Glasgow –
3) SRUC (Scotland’s Rural College) – https://www.sruc.ac.uk/courses/169/international_animal_welfare_ethics_and_law_msc
4) University of Winchester –
26 on the 23rd of June 2016 Britain decided to leave the EU with a majority of 52%.
27 Approval of Cuadrilla plans (to explore beneath UK homes in Lancashire for shale gas).
Emily Gosden, “Fracking go-ahead: Government approves Cuadrilla plans, overruling Lancashire council,” The Telegraph. October 6, 2016. Retrieved from http://www.telegraph.co.uk/business/2016/10/06/fracking-by-cuadrilla-approved-at-one-lancashire-site-overruling on November 7, 2016.