Animal law in the UK purports to protect animals from ‘unnecessary suffering’. It does no such thing. In reality, the test for whether a cruel practice is legal is whether it is an industry-wide accepted norm. As well as traditional animal advocacy focussing on dietary and individual change, we should do three things. First, campaign for an independent body accountable for animal welfare in the UK government. Second, advance animal law indirectly through other areas of law that are less ambiguous. Third, call upon judges to apply the usual principles of legal reasoning to animal welfare.

Thou shalt not suffer (unnecessarily)

On paper, animal welfare law in the United Kingdom looks rosy. The Animal Welfare Act 2006 makes it an offence to cause “unnecessary suffering” to an animal (and its predecessor, the Protection of Animals Act 1911, similarly prohibited “unnecessary suffering”). The Welfare of Farmed Animals Regulations 2007 states that all farmers must take “reasonable steps” to ensure animals are not caused “unnecessary pain, suffering, or injury”. Even the law governing animal experimentation, the Animals (Scientific Procedures) Act 1986, says that experimenters must protect animals from “avoidable suffering and unnecessary use”.

This begs an obvious question: How much suffering is “necessary”? The statutes listed above aren’t particularly helpful. The Animal Welfare Act, for example, directs the court to consider whether “the suffering could reasonably have been avoided”, or whether the conduct causing suffering was that of a “reasonably competent and humane person” (s4(3) AWA 2006). These vague guidelines do little to address the suffering that is routinely – and legally – inflicted upon the billion animals slaughtered in UK factory farms each year. The guidelines do not explicitly tackle the hard questions: Is meat consumption “necessary”? Are factory farms? Is starvation and mutilation “necessary”?

These practices appear only to be legal by some complicit understanding between the government and the judiciary. It seems the law of “necessity” is fatally underdetermined when it comes to animal suffering. For comparison, then, let’s see how it works when we are talking about humans.

When is murder (of human animals) necessary?

We need to go back to 1884. In the summer of that year, a ship set sail from Southampton with a crew of four, and sunk off the Cape of Good Hope. Luckily, all four crew members were able to get aboard a lifeboat. Unluckily, all they had with them was two cans of turnips.

Ten days later, the crew were drinking their own urine. The seventeen year old cabin boy Richard Parker was immobile, and possibly unconscious, from hunger and drinking seawater. On the nineteenth day, Captain Dudley and his shipmate Stephens cut Parker’s throat with a penknife. The remaining crew consumed his flesh, survived, and were rescued four days later by a German freighter.

Back in England, Dudley and Stephens confessed and were charged with murder. The only possible defence the court could consider was one of necessity: Should the pair be found not guilty because they had no other choice but to kill Parker? After much deliberation, the court ruled no. The policy implications were too dangerous; Lord Coleridge acknowledged that a defence of necessity could act as a “legal cloak [for] atrocious crime”. To this day, then, the case of R v Dudley and Stephens is authority for the fact that there can be no defence of necessity to murder.

Dudley and Stephens also marked the beginning of a string of case law developing the defence. Over the years, two key ideas have emerged. The first is that the test of necessity is very difficult to satisfy. This makes sense. If laws are to be respected, one cannot break them with impunity unless there is a very, very good reason.

The second is that we cannot say something is necessary if a reasonable alternative is available. Again, this is quite obvious. If there had been an abundance of water and food on that lifeboat, there wouldn’t have been much for the Court to consider.

While discussing this case, it is important to make clear that the doctrine of necessity is, strictly speaking, a defence to committing a crime. But the broader point is that the court is perfectly capable of understanding what ‘necessary’ means; no special legal interpretation is required. In short, ‘necessary’ means there are no other reasonable options available.

When is (non-human animal) murder necessary?

Let’s pause for a second to imagine we lived in an anti-speciesist world. That is, a world where the interests of all individuals are weighted equally according to their needs, not their species membership. In this world, the doctrine of necessity would be the same whether applied to human or non-human animals.

When faced with the suffering of a non-human animal (for example, an animal that had been raised for slaughter in factory farm conditions), the court would first remind itself that establishing the suffering was ‘necessary’ will be very difficult. Then, the court would consider whether there were any reasonable alternatives available.

Let’s see. The Academy of Nutrition of Dietetics, the largest nutritional organisation in the world, reports that “appropriately planned vegetarian diets, including total vegetarian or vegan diets, are healthful, nutritionally adequate, and may provide health benefits in the prevention and treatment of certain diseases”. Official health bodies around the world support this view.

In an anti-speciesist world, the legality of keeping animals in factory farm conditions would be an open-and-shut case. We should not harm animals unnecessarily; the consumption of animal products harms animals; we should not consume animal products. Case closed.

Clearly, we do not live in an anti-speciesist world. But what kind of world do we live in? If the legal system does not really prevent unnecessary suffering, how does it operate? We can get an idea of this by looking at a few case studies. Of course, the law does not operate in isolation, but is simply one of the many institutions that uphold speciesism and animal exploitation. What the cases reveal, however, is that when he law does step in, it is not to prevent unnecessary suffering, but rather to placate the interests of the animal agriculture industry.

The principles of reason no longer apply: How the courts condone unnecessary suffering

Roberts v Ruggiero (QBD, 3 April 1985)

This case concerned the use of veal crates (which was legal at the time of the trial, but has been banned since 2007. The UK continues to shoot around 100,000 calves per year for veal, however.)

Veal crates were tiny, individual wooden stalls into which calves were crammed to spend the duration of their short lives. These crates caused tremendous suffering to calves, who received nothing but a liquid diet, were provided with no bedding, and were not even able to turn around. A claim was brought arguing that the use of these crates caused unnecessary suffering to the calves. So far, so reasonable.

The court, however, decided otherwise. As the calves didn’t suffer “beyond that which was general in animal husbandry”, the argument went, their suffering could not be unnecessary. This perverse reasoning is a catch-22 for farm animals; suffering is prohibited, but suffering inherent in the farming process doesn’t count. In other words, as the use of veal crates was a standard industry practice, the court simply didn’t dare to rule it illegal. This reluctance to disrupt industry norms has tragically persisted for decades.

Compassion in World Farming v Secretary of State for Environment, Food, and Rural Affairs [2003] EWHC 2850 (Admin)

Globally, we breed and kill around 44 billion chickens a year. That’s 1,400 per second. Think about that. In the time it will take you to read this sentence, more chickens will be killed than all the victims of Ebola in Sierra Leone.

This case, brought by Compassion in World Farming, concerned the way we treat them. In the UK, we have selectively bred chickens to grow much faster and much larger than they ever would naturally. As a result the birds suffering from a host of crippling health problems, from broken bones, to bleeding blisters, to internal organ failure.

Remember, there are two ways in which the UK farm industry exploits these birds. First, to consume their bodies. Second, to consume their eggs. Now, the rapid growth of birds raised for chicken meat is not a problem for the industry. They are simply left to grow beyond what their brittle bones can bear, suffering the painful consequences, and be slaughtered in their infancy. Rapid growth is a problem, however, when it comes to egg laying hens. Chickens are only able to lay eggs when they reach sexual maturity at around 18-24 weeks. But if the egg-laying hens were fed normally, their fast-growing genotype would mean that they would barely be able to stand, let alone lay eggs, by the time they got to 18 weeks.

The industry solution was to starve the egg-laying hens for the first twenty weeks of their lives. Birds were routinely fed less than half the food they needed, and in some cases as little as twenty per cent. Unsurprisingly, a study found that the birds were “chronically hungry”.

The court was presented with all of these findings at trial. The relevant law required that all animals “must be fed a wholesome diet” and in “sufficient quantity to promote a positive state of well being” (Paragraph 14 of the Annex to Council Directive 98/58/EC).

If you were being fed around 20 per cent of your daily caloric needs, which is around two slices of bread per day, a court would not need much convincing that you were not receiving a “wholesome” diet. Yet once again the court rejected the blindingly obvious conclusion that the practice was unlawful, and once again deferred to industry standards.

At the Court of appeal, Lord Justice May decided that the restricted diet was “appropriate”, even if the birds were persistently hungry, as it was taken as a given that the legislation allowed the intensive farming of chickens of fast-growing genotypes. The idea that the court could intervene to prevent nonhuman animal suffering, at the expense of industry profits, was not even entertained.

Ford v Wiley 23 QBD 203 [1889]

There is certainly reason to be despondent. It seems that any farming practice, if sufficiently widespread, will be upheld by the court, and preventing “unnecessary suffering” does not seem to be part of the equation.

But even this dire situation presents a sliver of hope. If we can work towards changing industry practices, then it is possible the legal system will step in and declare abuses to be illegal when they are on the decline.

Admittedly, we do have to back a long way to find a case in support of this. All the way to 1889, in fact. In the case of Ford v Wiley, a farmer in Norfolk used a common saw to remove the horns of 32 young cattle. This caused the cattle excruciating pain, which the farmer sought to justify as it was more profitable and convenient for him.

Importantly, at the time of the case sawing off the horns of calves was a dying practice that had been recently re-established. It was no longer the widespread norm that it had been in previous decades. Accordingly, the court did not simply write-off the suffering of the calves as “no more than usual” for the farming industry, but rather considered that there must be some proportionality between the suffering inflicted and the objective achieved.

Judge Hawkins didn’t mince his words: “[T]o put thousands of cows and oxen to the hideous torments described in this evidence in order to put a few pounds into the pockets of their owners is an instance of such utter disproportion between means and object, as to render the practice as described here not only barbarous and inhuman, but I think clearly unlawful”.

The point is this. If an industry practice is on the way out, it is possible that the court will conduct an analysis that actually considers the suffering inflicted. This conclusion can lead us two ways. First, we should work on changing industry practices, rather than waiting for the courts to declare them illegal. Second, we should consider changing court practices, rather than waiting for industry to sacrifice its profits to animal welfare. The third option, of course, is attempting to turn our speciesist institutions upside-down. This is the most difficult, most long-term challenge, and one that will involve a fundamental shift from viewing animals as objects to be used to viewing them as individuals to be cared for.

What is to be done

It is important to realise that (despite what some lawyers might think), the law is not the be all and end all of how our society is run. The law is just one cog – and a pretty small one – in the speciesist system that enables routine abuse of animals. That said, the judiciary has a unique place in our political system, in that it has the ability to rule certain abuses illegal, and effectively force the executive to make the practices they are condoning explicit. For example, if the judiciary ruled that starving birds was illegal, the UK government would have swiftly enacted new laws stating that it was. However, at least the government would have had to be explicit in saying starvation is acceptable. As it stands, they don’t even have to do that much.

With this in mind, let’s look at some of the things we could do to make our justice system more just. We’ll start with some non-legal measures, and then look at what lawyers and judges should do.

Non-legal measures

Many animal advocacy groups in the UK urge people people to turn vegetarian or vegan. This is important; the average meat-eater in the UK consumes around 7,000 animals in their lifetime. However, it does not directly tackle the problem that our political and legal institutions primarily view animals as resources to be exploited, rather than individuals capable of morally-relevant suffering.

In order to change this paradigm, we need to restructure institutions to make them accountable for representing the interests of animals.

Other European countries have measures in place to this effect. Switzerland, for example has an Animal Welfare Committee in Government, a Parliamentary Group for the Protection of Animals, and a (small, but existent) Animal Party. The Netherlands has the Animal Welfare Police; Germany has a Minister for Animal Welfare, and an Animal Welfare Committee and Commissioners; and Denmark has an Animal Welfare Minister, Special Committee, and Councils.

Admittedly, this collection of buzzwords has not overturned the speciesism that pervades national policy-making, and their direct impact may be difficult to measure. In principle, however, these initiatives acknowledge the need to have some independent body accountable for animal welfare within government. Lobbying for an Animal Welfare Ombudsman or Commission in the UK therefore seems like a worthwhile strategy for many animal advocacy groups.

Legal measures

There are two things to be done here.

First, lawyers should work on animal law indirectly through other areas of law. One of the biggest problems with animal law is that is it so vague. Judges are left to decide what amounts to “unnecessary suffering”, or what a “positive state of wellbeing” means. They are not sufficiently directed on what this should translate to in reality, and as a result largely defer to the animal agricultural industry on what is a common and acceptable practice.

Other areas of law are much clearer. Key cases in patent law, environment law, and freedom of information law, for example, can all have animal welfare implications. Take patent law. The case of Upjohn involved the patenting of a mouse who had been modified to lose all of its hair and serve as a test subject for balding treatments. The European Patent Office had to consider whether the patent would be contrary to “ordre public or morality” (article 53(a) European Patent Convention). The EPO ruled that the mouse was not patentable. In the case of Octomouse, however, which involved a mouse who was genetically modified to develop cancer for the purposes of medical research, the patent was granted. Cases such as these help to provide a benchmark that animal welfare law can learn from. They also expose the inconsistency in our treatment of animals: If it is unethical to breed a mouse for curing baldness, why is it ethical to breed billions of animals for slaughter?

Second, let’s tackle the application of animal law directly. We need judges who are willing to stand up and state the obvious when current practices are clearly illegal. When the law says animals should be fed a “wholesome diet”, for example, it makes a mockery of our legal system that routine starvation is declared lawful.

Of course, there are enormous barriers to making this happen. We are speciesist. We favour the status quo. Animal welfare is not a vote-getter, and subsequently not a law-maker. Not only huge corporations, but almost all individuals, have a vested interest in keeping animal products cheap and factory farms out of our minds. And – importantly – the principle of judicial deference indicates that judges should avoid trampling over Parliament’s intentions when they interpret the law.

Yet despite these hurdles, the judiciary remains in the business of dispensing justice. They remain separate from the executive and the legislature precisely to make sure that impartial justice remains possible. The court cannot be in the business of ruling that black is white, no matter how many vested interests are at stake.

Lord Mansfield, the Chief Justice of England in the case of Rex v Wilkes in 1768, wrote that,: “The constitution does not allow reasons of state to influence our judgement […] We must not regard political consequences, however formidable they might be […] Justitia fiat, ruat coelum – Let justice be done, though the heavens fall”. Lord Mansfield’s words seem to speak directly to the dilemma judges face when asked to rule on animal law. They also recall times when justice has been done, even in the face of overwhelming political pressure.

In 1610, it was the judiciary who decided that Acts of Parliament can be struck down if they contravene “common right and reason”. In 1772, it was the judiciary who declared slavery so “odious” as to be illegal. In more recent times, it was the judiciary who declared that deep interrogation is torture, that being gay is not a crime, and that police must investigate rape claims. Perhaps, in 2020, 2040, or even 2060, it can be the judiciary who declare that factory farming is the worst crime in history.

This won’t happen overnight, or even in the foreseeable future. It also won’t happen without a fairly radical shift in our political and judicial system. But it is important we take steps in the right direction. Take one small step now, and consider learning more about, or supporting, Sentience Politics.