Report (Continued)
Amendment 2
Moved by
2: Clause 1, page 1, line 4, at end insert—
“(1A) The function of the Committee is to determine whether, in the process of formulating policy, it is satisfied the Government is having, or has had, all due regard to the ways in which the policy might have an adverse effect on the welfare of animals as sentient beings.(1B) It is not the function of the Committee to comment on the policy decisions of Ministers or to recommend future policy or changes to existing policy.(1C) It is for Ministers to take into account any other considerations of public interest, including economic, cultural and religious considerations, as well as the impact on different species, in the formulation and implementation of any policy. (1D) Schedule (Animal Sentience Committee) has effect.”Member’s explanatory statement
This would clarify the Committee’s role and make clear the Committee is limited to commenting on process. It also makes explicit that Ministers should take into account any other public interest considerations. It gives effect to the Schedule, which sets out the Committee’s role and function.
Lord Marland Portrait Lord Marland (Con)
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My Lords, I shall speak to the amendments tabled in the name of my noble friend Lord Mancroft, who, sadly, has fallen to the Covid virus, and we of course wish him well. It falls to me to take on the challenge of trying to persuade the Government, who so far have been pretty unpersuadable, to take this Bill more seriously and put it into better shape. For the record, I do not consider myself, as the noble Baroness, Lady Jones of Moulsecoomb, suggested, a right-wing Tory, even though some of my colleagues do. This has nothing to do with right or left. I think that the general feeling in the House was that this is a badly constructed Bill. I know that some of the government amendments have the support of the Liberal Democrats and Labour, which means that it is not a well-supported Bill.

For those who have just joined this debate, I say the following: I do not farm, and I rarely fish. I am not an industrial fisherman or commercial farmer; occasionally I shoot—but what I really enjoy is our green and pleasant land, and living in the countryside. As far as I am concerned, it has been under responsible stewardship for a very long time, or it would not still be a green and pleasant land. If I am a Tory, which I am, I believe the well-known Conservative Party tenet that people do better when the Government do least. Here we have a Bill that seeks to interfere with people and how they run their lives. It is not just this Bill on its own, in isolation; we should look at the general onslaught of change that is happening to farmers in the countryside.

How do we arrive at this place? It is extraordinary. I may be totally wrong, but I can count four animal welfare-related Bills, three of which come under a new umbrella of animal welfare created by Defra. Ministers say that they want experts to advise them on sentience, but they are getting loads of advice. They could just come to the noble Lord, Lord Trees, and get terrific advice from him, or the noble Baroness, Lady Deech, and get fantastic advice from her, because they are well-known experts. It is why they have been appointed to this House—among many other reasons, I hastily add. It just demonstrates another way of Defra interfering with farming, the countryside and fishing. It is setting down standards and definitions of standards that many other countries do not support. Not even the European Union has gone this far in setting out standards, insisting that our farmers and fishermen adhere to a certain group of standards.

Yet on the other hand, the Government are signing trade deals with these countries and allowing imports of various goods from countries that will not adhere to the same welfare sentiments that we do. We will still get lobsters from Canada—we will be able to get lobsters from Scotland, by the way, as this relates to the United Kingdom. We will still be able to get octopus from Spain not killed in the same way as we think it should be. We will get langoustines from Scotland and France killed totally differently than the ones that we have—and prawns, as we know, come from Thailand and other countries like that.

There is no civilised way of killing animals, or anybody, for that matter—whether it is slitting their throat, catching them in nets and leaving them out of air on fishing boats, hooking them and shooting them, stunning them or boiling them. They are all terrible ways to die. We should bear in mind that that is the case. Yet Defra is going to appoint a committee that sits as judge and jury on how these animals and sentient beings should be killed—in the animals’ case, but also it will give the description of sentient beings. This will destroy the livelihoods of our fishing industry, which will not be able to compete on the same level field, and it will make farming very difficult.

Most people I know are welfare inclined towards animals. I certainly am, and I have not yet met any who are not. There are, I freely admit, 10% who are not—but this legislation will never protect us from the 10%; it just hurts the 90%. We will never stop illegal trapping, poaching or illegal netting, yet this Government seek to impose standards on us. One argument that has been used by Ministers is that social media is urging them to carry out these sorts of commitments, but social media is not the way in which to govern the country. Governing the country must be for the benefit of everybody, not those who decide to describe their views and impose them on Ministers. It is Ministers who are elected to opine rather than committees to tell them. In short, we end up with a series of new quangos, from a Government who in theory have been against quangos, another layer of costs on our farming and fishing communities, and an imposition on those who try to live in the countryside in an honest and fair way. I am sorry to spend more time on the general subject, but I see some new faces in this debate, and I wanted to alert them to the fallacy of large parts of this Bill.
In speaking to Amendment 2, I shall speak also to Amendment 48, which would give effect to Amendments 3 and 5, leaving out subsections (2) and (3) of Clause 1 consequentially. The amendments would clarify that the committee is concerned with the process by which current policy is being formulated, and that it is not concerned with policy decisions or policy changes, whether proposing new policy or changes to existing policy. The amendment also seeks to clarify that it remains for Ministers—amazingly—to undertake the balancing exercise between animal welfare and other public interest considerations. This also limits the likelihood of ministerial decisions being challenged in court. We have heard from a former Master of the Rolls that there will be umpteen challenges to these decisions, yet our current Government do not listen to those wise words from such eminent people.
The outstanding issue remains of whether a Minister can be said to have reached the appropriate policy decision when the Animal Sentience Committee reports that all due regard has not been had to animal welfare in reaching its decision. It is hard to see how a policy decision can be properly taken when the process by which that decision has been reached has been judged deficient. I fear that the result will be many uncomfortable appearances before Parliament by Ministers.
The proposed Schedule, which is given effect by the amendment, simply suggests some statutory structure for the committee—and how badly it needs statutory structure. Everybody has spoken about the importance of that, and I look forward to hearing my noble friend’s response on it. There is also no current requirement for departments to co-operate with the sentience committee; we are merely told that Defra expects government departments to do so. A department that fails to co-operate will simply be reported as having not co-operated. What use would that be in advancing animal welfare, having one department not co-operating but told, “Sorry, you haven’t co-operated, but it does not matter”?
Schedule 1 also sets certain criteria for appointments to the committee to ensure the necessary expertise and to exclude persons who are not independent or may have other agendas. Most of us are terrified of someone like Chris Packham, for example. The other day he took a petition supported by 10,000 schoolchildren to Her Majesty the Queen, which said that she must rewild her entire estate so that we can have bears and wolves back on it. Imagine going out of Balmoral with your corgis and being confronted by a bear and a wolf. I mean, what sort of people are we listening to?
There are so many holes in this, and there is such a lack of clarity, that I thoroughly despair for the countryside in the future. I very much hope that my noble friend the Minister—who, of course, is a practitioner, as a farmer and landowner himself, and a practical man—can give us assurances that we are not being overrun by an endless flurry of legislation where the countryside is being penalised every time it turns up and that actually the status quo can still be maintained.
Baroness Deech Portrait Baroness Deech (CB)
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My Lords, I am speaking in support of Amendment 2 and Amendment 27, to which I have added my name. In short, these amendments seek to restore so-called Lisbon treaty provisions, or balancing considerations, to our laws on animal welfare, old and new. The arguments in favour are substantial, relating to practices in this country, and legal, relating to the avoidance of judicial review—on which I hope the House will listen to the wise words of the noble and learned Lord, Lord Etherton.

Article 13 of the Lisbon treaty, which was apparently inserted by reason of pressure from this country, says:

“In formulating and implementing the Union’s … policies”,

et cetera,

“the Union and the Member States shall … 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.”

Far be it from me to want to continue any European law, but this particular provision did in fact mirror what was already the situation in this country. My concerns if it is not enacted relate to medical research and religious traditions in killing animals.

The Lisbon provision successfully kept issues out of court, and religious minorities were content with it. Not to include this amendment is to open the door to vigorous disagreements over traditional practices and to more judicial review—and if there is one thing this Bill was supposed to do, it was to corral the committee and the Minister in policy issues. Muslim spokespersons are likely to be as worried about halal as are the representatives of the far smaller religious Jewish community. In the past, they have lived comfortably with the Lisbon balancing factors, and we want this to continue.

The committee might decide a particular point on this, but a Minister will have to take into account the wider considerations of cultural and religious organisations and form a view in accordance with them. Without the balancing factors that this amendment would introduce, both sides are wide open to judicial review.

The last time I spoke on this, I criticised the Bill as unnecessary and I worried about restrictions on medical research, inter alia. Living in Oxford as I do has meant witnessing protests by so-called animal liberationists. As recently as April this year, they were protesting just two miles away from the laboratory where the esteemed scientist Sarah Gilbert was working on the AstraZeneca vaccine—which, no doubt, some of them would be happy to take, and if not they would selfishly put others at risk. I hope that medical research is included in the term “public interest” in Amendment 2. The reference to legislative provisions in Amendment 27 is certainly meant to include the many laws we have about research on animals.

All our talk about inclusivity and diversity demands due respect for what is important to minorities and to others who have for centuries had a special relationship with animals and wildlife. We do not want today’s cancel culture extending to interference with medical research and peaceful coexistence, and Article 13 would be a safeguard. Moreover, the provisions of the European Convention on Human Rights could, through the Lisbon treaty, be brought to bear in this amendment.

On religious rites, particularly at issue in the present context is religious animal slaughter. The importance of expressly preserving in the Bill the right of citizens to adhere to their religious practices is perfectly clear. That right falls within Article 9 of the European convention and is reflected in Article 13 of the Lisbon treaty. The jurisprudence of the European Court of Human Rights in Strasbourg has highlighted in many cases the importance of the rights protected by Article 9 in a pluralist democratic society. Our own Human Rights Act 1998, which enabled disputes on convention rights to be resolved in our own courts, contains a specific provision, in Section 13, that:

“If a court’s determination of any question … under this Act might affect the exercise by a religious organisation … of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right.”

It is not necessary for present purposes to go into the nature of religious animal slaughter in the form of shechita or its Muslim equivalent. There is scientific evidence on both sides of the debate about the humanity of this. In fact, when one reads about the terrible cruelty, referred to earlier in this debate, that we routinely inflict deliberately or by accident—in the electrocution of chickens, the killing of pigs, the decapitation of rabbits, the suffocation of fish, the boiling alive of lobsters, et cetera, which we will get to—we really have nothing to be proud of in all our practices of killing animals.

It is clear that the protection of the right to manifest religious belief is enshrined in the treaty obligations we already have and our own domestic legislation. Therefore, there can be no good reason why, as in the case of Article 13 of the Lisbon treaty, the considerations and recommendations of the sentience committee should not be made expressly subject to respect for religious rites and medical research.

On 6 July, the Minister gave an assurance about respect for halal and kosher traditional killing, but in the same breath he reminded the House that anything could be changed. Therefore, it behoves the Government to proactively accept Amendment 27—and indeed Amendment 2—both to safeguard religious rites and medical research and to minimise judicial review challenges. I cannot think of any good reason why the amendment should be rejected.

We hope to change the Minister’s mind before Third Reading, and I shall continue to press for this safeguard today and later. As the Bill stands, the committee is not required to respect medical research and rites and traditions, yet the Minister will be bound to consider them when receiving the committee’s recommendations. Without this amendment, his decision and legal position will be much more vulnerable and difficult. I therefore urge him most strongly to accept the amendments which place the Lisbon treaty back where it should be in this country.

Viscount Ridley Portrait Viscount Ridley (Con)
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My Lords, I intervene very briefly to support what the noble Baroness, Lady Deech, has just said, particularly with respect to medical research. I have looked up which kinds of animals were used in the development of treatments and vaccines for Covid-19 in the last couple of years. They include humanised mice bred to have human ACE2 genes in them. Experiments on SARS-like viruses were being done on these mice in one city in particular for many years before the pandemic: Wuhan. The animals also included Syrian hamsters, because they have similar symptoms to human beings; monkeys, because vaccine safety always has to be tested in non-human primates; ferrets, because they have very similar symptoms when they get respiratory diseases; pigs, on which vaccines were tested; and sheep, which were used for plasma for purifying antibodies. All of these were vital to the extraordinary speed with which treatments and preventions for Covid-19 were pursued in the last year.

Nobody is suggesting that the existence of this committee will result in the banning of such research or anything like that. But it is possible that, in formulating a research proposal of this kind, you might find you run up against legislation that, in deference to the sentience committee, says that an extra step needs to be taken to check that it is really necessary to use animals in this way. Be in no doubt: all of these animals suffered, and they suffered deliberately from diseases that we gave them as a result of this work. I would hate to think that this Bill would result in anything that slowed down the urgency of medical research in a situation like this.

Lord Moylan Portrait Lord Moylan (Con)
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My Lords, I will speak in support of Amendment 27, to which I have put my name. I have the great privilege of following the noble Baroness, Lady Deech, in doing so. This amendment goes to the heart of what I see, perhaps eccentrically, as the problem with the Bill. The Bill seems to be about animals and their welfare, and it seems to be based on science, but really it is a Bill about humans and our moral standing. It is not about our moral obligations—all animal welfare legislation for the last 200 years either articulates or creates moral and legal obligations on us; that is what law does—but rather it is about our moral standing. It is the ambition of the people who are promoting the concept of animal sentience that it should be a common moral measure, putting humans and animals on the same moral plane, differenced only by the degree of sentience that they evince.

I find this a really false anthropology. So it is absolutely right that the Bill, which actually makes no reference to humans, should say something about them, if only to try to achieve a better balance in the moral architecture that the Bill seeks to create. Amendment 27 does that. It says that there are some things about human beings that should not be trampled on by this Bill, by the principle behind it, or by the animal sentience committee it creates. Those are quite basic things: they are to do with religion and religious practice, culture and your local region or locality—the place where you belong. All Amendment 27 does is ask that those things should be carved out and specially protected—not in an innovative way, because in fact they are already protected in the European Union treaty, in the language that we adopted before. It is simply about incorporating that language back, not in a copy-and-paste way but because we genuinely believe that those things about human life are important and should be protected. That is why I support Amendment 27.

While I am on my feet, I am going to make a comment on Amendment 48, in the same group. It is a slightly more procedural comment—it is really a question to my noble friend. We have been told since Committee, through the issuance of the terms of reference of the new committee—which are not statutory as I understand it, but of course I am always happy to be corrected—that it is to be set inside and corralled by, so to speak, a new Defra centre of excellence on animal welfare. Other committees that already exist will also be brought within that nest, but the other birds in this nest are not statutory committees—they are creatures or creations of Defra, whereas this new committee is a statutory committee. I simply do not understand—this may be because I am relatively new—how it is that, through some non-statutory terms of reference, a committee that we are today being asked to give statutory independence to, can be reliably told that it will be part of this centre. What if it decided not to be? It is going to have an independent board; what if the board decided that the centre trammelled it or interfered with its work? My question to my noble friend is this: if this committee is going to be on the basis he says, corralled inside the new centre for excellence, should that not be in the Bill?

Baroness Fookes Portrait Baroness Fookes (Con)
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My Lords, I understand the worries of the noble Baroness, Lady Deech, about including or not including matters that relate to medical science and the slaughter of animals by ritual, religious methods. But unless I am much mistaken—the Minister will correct me if I am wrong—the Act that deals with the slaughter of animals specifically exempts ritual slaughter from what would otherwise be illegal. By the same token, we have legislation that deals with medical experiments which already tightly controls what may or may not be done. I cannot see, therefore, that the amendment being advocated can have any real substance to it, given those restrictions, and also bearing in mind that the committee that is being set up, although it is being set up by statute, does not have legal powers of any kind whatever. It will be entirely up to the relevant Ministers whether or not they accept any recommendations from that committee. In order to change the rules about medical science or the slaughter of animals, I believe there would have to be primary legislation. I hope my noble friend can confirm this.

Viscount Trenchard Portrait Viscount Trenchard (Con)
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My Lords, I intervene briefly to support Amendment 2 in the names of my noble friends Lord Mancroft and Lord Marland. I also wish my noble friend a speedy recovery from Covid. As my noble friend Lord Marland, who spoke so convincingly to the amendment, said, the animal sentience committee will be both judge and jury. My worry is that it will also be legislator, since it seems to me almost certain that, in the way the Bill is currently drafted, it is likely to stray into the area of scrutinising policy as well as process.

I remain worried that the committee will also overlap with the work of the Animal Welfare Committee, as the Countryside Alliance and other institutions that actually understand nature and animal behaviour have pointed out. This committee is likely to be comprised of people who may have a huge understanding of matters of science and parts of the countryside but lack the experience to really appreciate the relationship between the countryside and the animal kingdom.

What about this animal welfare centre of expertise? I understand it is supposed to settle points of dispute with other committees. Which other committees is the new committee likely to be in dispute with? Obviously, it will be the Animal Welfare Committee. I cannot, for the life of me, understand why we would wish to create an animal sentience committee which is obviously going to cover points that are already covered by the Animal Welfare Committee. I thought that, under this Government, we were likely to see some rationalisation and reduction of the number of committees and quangos being established. I regret very much that it looks as though we are likely to see the reverse.

I would also like to comment on Amendment 27, in the name of the noble Earl, Lord Kinnoull, spoken to very well by the noble Baroness, Lady Deech. My noble friend Lady Fookes has just pointed out, quite correctly, that there are already exemptions for medical science in some legislation, but I think those exemptions are very much narrower than the exemptions that would be achieved by the amendment in the name of the noble Earl. The amendment is quite welcome, and I strongly support it, particularly as, having spent many years in Japan, I came to be very partial to Japanese cuisine. I fear that most methods used, including in this country by Japanese restaurants, to kill fish might fall foul of the opinions of the animal sentience committee. I think it could easily lead to a lot of unwelcome interference.

I also very much welcome the speech by my noble friend Lord Moylan, who explained so well that the sentience of animals is different from that of us. It is relative, and nobody would argue that the sentience of a dog is the same as that of a lobster.

I also strongly support Amendment 48, because to set up a statutory committee of this kind without including a schedule clearly setting out the committee’s role and functions is bound to lead to trouble.

Lord Etherton Portrait Lord Etherton (CB)
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I express my support for Amendment 27, in the names of the noble Earl, Lord Kinnoull, the noble Lords, Lord Moylan and Lord Trees, and the noble Baroness, Lady Deech. The noble Lord, Lord Moylan, and the noble Baroness have covered much of the ground that I wished to cover, and I agree with everything that they said.

Article 13 of Title II of the Lisbon treaty was not only binding on the UK before Brexit but—as the noble Lord, Lord Goldsmith, himself stated in a letter to Members on 13 May—the UK was one of the key EU members that lobbied for it, and it has not been suggested at any stage of the Bill that prior to Brexit the UK had any objection to the balancing factors in Article 13.

As I pointed out in Committee, the balancing factors mirror rights under the human rights convention. There is a powerful argument that the right to sporting and other recreational activity that are part of cultural traditions and regional heritage are protected by Article 8 of the convention as an aspect of the right to respect for private and family life. Like a number of other convention rights, it is a qualified right and is subject to interference if, among other things, it

“is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

None of those grounds has been identified by the Government as potentially applicable.

Most perplexing of all, however, is the Government’s failure to exclude religious rights from the purview of the sentience committee. This ground has been substantially covered by what my noble friend Lady Deech said. She referred to Article 9 of the convention, which expressly provides for freedom of thought, conscience or religion; that article expressly states that the right to manifest one’s religious belief is a right protected in practice and in religious observance.

The European Court of Human Rights, as the noble Baroness, Lady Deech, has said, has highlighted the importance of rights protected by Article 9 in a pluralist democratic society. Like Article 8, Article 9 of the convention confers a qualified right and is subject to many of the limitations that I have just listed with regard to Article 8. Again, none of those limitations has been suggested by the Government at any stage of the passage of this Bill.

Why, then, is the provision in this amendment, which simply seeks to incorporate the balancing factors in Article 13 of the Lisbon treaty in the Bill, not accepted? As far as I can see and have heard, only two explanations have been given by the noble Lord, Lord Benyon. The first, which was stated most clearly, I think, in Committee, is that it is for the Government to decide on policy, and that in doing so they will take into account all relevant considerations.
The second explanation came today, when the Minister, when asked expressly why these balancing factors under Article 13 of the Lisbon treaty had been added to with bells, replied: “Well, we now have a sentience committee.” I say to the Minister that, with respect, that does not make much sense to me because all these balancing factors are matters of policy and are reserved to the Government. The three factors that are specified as balancing factors here are matters for the Government to decide, not the sentience committee, and it is therefore entirely appropriate for them to be in the Bill.
In fact, certainly in relation to religious slaughter of animals, the Government’s policy is to permit such slaughter. Jews and Muslims are exempt from the scope of domestic regulations concerning the stunning of animals, though I should add—so that there is no doubt about the matter—that the organisation with oversight of Jewish religious slaughter, Shechita UK, maintains that shechita conforms with the EU definition of stunning, as supported by scientific evidence.
Moreover, in answer to the noble Baroness, Lady Deech, in Committee, the Minister is recorded in Hansard as saying:
“this Bill is about the government policy-making process. It is not about some method of changing the slaughter of animals for religious belief. I want to make that absolutely clear.”—[Official Report, 20/7/21; col. GC 5.]
That is a statement about policy and the balancing factor of preserving religious rites.
I respectfully suggest that all this shows that there is no reason whatsoever why the Government should not exclude from the remit of the committee, as policy matters, customs relating to religious rites. Indeed, as proposed by Amendment 27, the same balancing factors that were accepted by the UK under the Lisbon treaty should be inserted in Clause 2.
That, however, is not the end of the matter. There is no statutory restriction to what the committee may consider, advise and make recommendations on. The committee could take it upon itself to consider matters that are subject to the balancing factors—and could reach a different view to that of the Government. If the Government decided not to implement the recommendations, on the basis that they were policy matters, not infringements of these balancing factors, it seems almost inevitable that somebody would institute a judicial review against the Government for failing to follow whatever the sentience committee had decided.
What would those proceedings be about? They would be about three matters. The first question is whether the committee had acted within its remit. Secondly, had the committee reached a decision consistent with scientific and other evidence? Thirdly, were the Government justified, taking into account all other considerations, in rejecting the recommendations and advice of the committee?
It is unrealistic to expect that leave would not be given to bring such proceedings, which would be expensive and time-consuming. All of this could be resolved in a way offered by the Lisbon treaty, by having these policy balancing factors in the Bill. This is also the answer to the noble Baroness, Lady Fookes. The advisory committee—the sentience committee—may decide to take on a matter that currently falls within the exemption—such as religious slaughter—and come to a decision that is different to that accepted by the Government. If the Government wished to deviate from—not accept—those recommendations, judicial review would follow as night follows day. We should support this amendment.
Lord Trees Portrait Lord Trees (CB)
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My Lords, I support Amendment 27, which carries my name. I have some difficulties with parts of it, which I will come to in a minute, but first I will make some remarks about medical research and the threat to it. The concern is very understandable, but in this case probably unwarranted. The question is not whether medical research will be exempted; there is very specific and substantial regulatory legislation in place to control medical research precisely. If there was a challenge as to whether the Government had considered the implications of their policy on medical research, they could answer, perfectly honestly, “Yes, we have the Animals (Scientific Procedures) Act, which is extremely detailed and requires persons involved in medical research to be licensed, the place in which that research is being carried out to be licensed, and each and every specific project, of a particular nature, to be subject to scrutiny and licensed”. I was a Home Office licence holder under the Animals (Scientific Procedures) Act for something like 25 years; one can argue very persuasively that due consideration and regard have been paid to medical research.

It is a great honour to follow my noble and learned friend Lord Etherton, who exquisitely explained the reasons for incorporating these exemptions, which are included in Article 13. My noble friend Lady Deech knows that I differ with her in that I wish all animals to be stunned and rendered unconscious before slaughter. There is a huge weight of scientific evidence to support that. That is why it is illegal for most people, except those of particular religious persuasions—it is illegal for me as a veterinary surgeon—to cut the throat of a conscious animal without rendering it unconscious first.

However, I am a realist. I recognise all the points that my noble and learned friend Lord Etherton and my noble friend Lady Deech have made; religious freedoms are enshrined in our laws and internationally. That reflects current government policy to respect religious freedoms. I accept that point and am happy to support the amendment in the name of the noble Earl, Lord Kinnoull.

Earl of Kinnoull Portrait The Earl of Kinnoull (CB)
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My Lords, I apologise to the House for having been detained in the Moses Room earlier in another debate. Much of what I might have said has been put far better by my colleagues who have signed this amendment, in the shape of my noble friend Lord Trees, the noble Lord, Lord Moylan, and my noble friend Lady Deech, who has been incredibly helpful. I thank them very much. I also found the speech of my noble and learned friend Lord Etherton very persuasive on the basic and essential point.

I remind the House of a question I put directly to the Minister in Committee, right at the end, about what happens next. He said:

“I do not want to create a feeding frenzy for lawyers by putting anything in legislation that will increase opportunities for judicial review or any other legal measure.”—[Official Report, 6/7/21; col. GC 294.]

That is what set me thinking about whether or not, in the true construction, this provision increased or decreased the possibility for judicial review. We just heard from my noble and learned friend about that, and about how the European Convention on Human Rights would work. I will not rehearse all the arguments or restate what others have said but it is my settled view that, if we do not restore something that was the law of the land until midnight of 31 December last year and then stopped, there is a strong probability—particularly with the arrival of this committee—of increased action in judicial review and increased action under the ECHR. That seems to me to trip the very test the Minister set himself in Committee. That is why I put the amendment down again and why I strongly believe we need to accept it.

A very interesting point was made by the noble Baroness, Lady Fookes. I need to think about it, but in my bones I do not feel it is a problem and, obviously, nor do my colleagues. I am annoyed with myself for not having had the time to talk to colleagues on the Labour Front Bench to explain more carefully why this is not some sort of attempt to wreck anything but is a genuine point; we are trying to make sure that the Government can govern and are not dragged to the courts the whole time on what are, after all, a series of very emotive issues. We heard from the noble Lord, Lord Sheikh, about that in Committee.

My simple hope, having discussed this at length yesterday—I am very grateful for the Minister’s time—is that we can have a meeting after Report, and I very much hope the Labour Front Bench will be there, where we can discuss this carefully, including taking into account the good point made by the noble Baroness, Lady Fookes, and come to some sort of resolution. As I said, the advice from people who care about this and genuinely know about it is that the very test the Minister set himself in Committee would be tripped if we did not accept this amendment. I hope that, if he cannot accept it immediately today, we will not have a messy vote but agree that this is the one issue to be taken away and discussed between now and Third Reading.

Lord Strathclyde Portrait Lord Strathclyde (Con)
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My Lords, I support very much my noble friend Lord Marland in his amendment, both the principles behind it and its detail, and the amendment from the noble Baroness, Lady Deech, which was extremely well argued by her and supported by the noble and learned Lord, Lord Etherton, the noble Lord, Lord Trees—modestly—and the noble Earl, Lord Kinnoull.

It strikes me that the Government have got themselves in a bit of a muddle on all this. The more I have listened to noble Lords behind me who obviously think the Government have got it wrong, the more I wonder why they are legislating in this way. If he had wished to do so, could the Secretary of State not simply have set up a committee by declaration, to do everything the Government want it to and try out some of these extremely complicated and difficult issues which have been raised not just today but in Committee? I feel it would have been a much better way to progress thinking and policy on this Bill and would not have made the sort of mistakes which I have a horrible feeling the Government are heading into by putting forward primary legislation in this manner, when we all know that changing primary legislation is incredibly difficult.

I hope my noble friend the Minister has listened very carefully to the noble Earl, Lord Kinnoull, who made a very fair offer of discussion on this extremely complicated policy matter, with the aim of coming forward with some rationally thought through amendments at Third Reading, which I would very much support.

Lord Hamilton of Epsom Portrait Lord Hamilton of Epsom (Con)
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Can I just add to my noble friend Lord Strathclyde’s remarks? The Government certainly have the capacity to create this committee, but why are they bothering to create a new one? I raised this in Committee and was told, “Oh no; the Animal Welfare Committee and the animal sentience committee are doing two totally different things.” If you took that outside and asked people in the street, “Do you think there’s an enormous difference between animal welfare and animal sentience?”, they would slightly wonder what you were talking about. It is extraordinary that, as a Conservative Government, we did not take a well-respected committee—the Animal Welfare Committee—and extend its remit to include animal sentience. Surely that would have been the most sensible, straightforward way, without creating new bureaucracy, as well as massive expense and giving it a statutory basis.

Let us consider what this committee will do. We are told that it will be independent, so it can produce reports on anything that it wants. My noble friend Lady Fookes says that it cannot produce a report on the whole question of ritual slaughter, basically because that has already been taken care of in legislation. Is that true? If the committee is completely independent, presumably it can produce a report on anything that it wants. It could put pressure on the Government to say, “Actually, the existing legislation that covers ritual slaughter is inadequate, therefore something should be done about it.” This committee is either independent or it is not. Presumably, it can produce a report on the poisoning of rats. They are sentient creatures—the Bill covers both animals in the wild and domestic animals. Their poisoning is not very pleasant in the absence of terriers which, let us face it, kill rats rather more cleanly and humanely than any other way. Nowadays they invariably get poisoned; presumably, a report could be produced on that. We are creating a monster here and in the long term we will live to regret it.
Baroness Mallalieu Portrait Baroness Mallalieu (Lab)
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My Lords, can I add to what the noble Lord, Lord Hamilton, has just said? I remind those in the House who have not looked closely at the terms of reference of the relationship that is anticipated between this new committee and the excellent existing Animal Welfare Committee. They are to have a joint secretariat with Defra, a joint website, a joint point of contact and the same Defra budget. Both will give views and advice about the effects on animal welfare of policy decisions, including prospective future policy and policy currently being formulated, and they will consult one another. The same people can be members of both committees and on occasions give joint advice and attend one another’s meetings. I repeat: I still do not understand why, with a powerful and excellent committee already in existence, we are spending time on the Bill in this House today.

Earl of Caithness Portrait The Earl of Caithness (Con)
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My Lords, I have listened with care to what has been said and find the arguments convincing. However, I am slightly concerned about the proposition put forward by the noble Earl, Lord Kinnoull, and supported by my noble friend Lord Strathclyde. As I understand the procedure now, if the Minister agrees to such a meeting but then decides to do nothing, we can do nothing at Third Reading. I would like clarification that we could not bring forward an amendment at Third Reading unless there was an indication from the Government today that it would be accepted. I think that is the new procedure.

I have two questions for my noble friend that are relevant. Does he agree with the situation north of the border and the attitude taken by NatureScot that:

“The death of an animal, at an individual level, is not a welfare issue but the manner in which an animal dies is”?

If he agrees with that, will he give an instruction to the committee to follow that same principle? Does he also agree with the thoughts of the National Animal Welfare Advisory Committee in New Zealand, which distinguishes between societal ethical values and public opinion? Again, if he agrees with that animal sentience committee’s thoughts, would he give the same instruction to the committee that he proposes to set up?

Baroness Bakewell of Hardington Mandeville Portrait Baroness Bakewell of Hardington Mandeville (LD)
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My Lords, this small group of amendments, moved by the noble Lord, Lord Marland, deals with the work of the animal sentience committee and touches on the issue of religious rites in Amendment 27, spoken to by the noble Earl, Lord Kinnoull, and the noble Baroness, Lady Deech. It is obvious from the contributions made that everybody feels very passionately about this.

Medical science is important and should be confirmed wherever possible. As the noble Lord, Lord Trees, said, lots of safeguards around licensing of medical science are already in place. There is obviously a need to ensure that those for whom religious rites are an important part of their lifestyle are respected, as set out in Article 13 of the Lisbon treaty. Despite the fact that this was before Brexit, I believe the Government should and do respect this right, upholding the values of those for whom the method of slaughter of those animals which form part of their staple diet is protected.

Amendment 48, which has not had a huge amount of debate this evening, is consequential on Amendment 2 and sets out the detail of the way in which the committee will be constituted and work. The noble Lord, Lord Marland, has just set out a bit about that and there is detail in the amendment. However, I am afraid I do not agree with either him or the noble Lord, Lord Mancroft, on parts of the amendment.

Limiting the term of office to four years could lead to a loss of expertise on the committee, especially if all members were appointed at the same time—which could happen, since it will be a new committee—and, therefore, rotated off at the same time. Further, I find the list of who may not sit on the committee very restrictive. It could lead to someone with the necessary expertise and knowledge being excluded from being a committee member. However, I agree with this amendment in that there should be transparency and independence. That is the direct opposite of the first group of amendments, which sought to fetter the committee’s independence.

The detail in Amendment 48 is extensive. However, the draft terms of reference document is also comprehensive and indicates that Defra has thought carefully about how the committee is to be constructed and how it will carry out its functions. On balance, I am inclined to go with the Defra guidance on this issue but will be interested in what the Minister has to say on this subject and on the knotty issues around Amendment 27.

Baroness Hayman of Ullock Portrait Baroness Hayman of Ullock (Lab)
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My Lords, I will talk first about the first part of Amendment 2, which looks at committee remit and policy. That has not really been discussed much in this debate so far. I draw attention to the terms of reference, because they include a lot of information about the role of the committee and policy. I put on record that we welcome a number of formal recognitions that the committee will have. It will: consider positive effects on animals as sentient beings in the policy-making process; report on any policy for which UK Government Ministers are responsible; examine policy decision-making by previous Governments where this has a significant bearing on ongoing policy-making. It is also important that the selection of the policy decisions it will choose to scrutinise will lie within the committee. I will make a final point on policy before moving on. I draw attention to the fact that it is not for the committee to reach a value judgment on whether a given policy decision balanced the welfare of animals with other matters of public interest.

On Amendment 48, the noble Baroness, Lady Bakewell of Hardington Mandeville, has pretty well covered all the areas I wish to draw attention to, so I will move on. The second part of Amendment 2 and Amendment 27 refer to having regard to cultural and religious considerations, as we have heard. Clearly, this is extremely important; the noble Baroness, Lady Deech, in particular, demonstrated that passionately in her speech. As we have seen, Amendment 27 seeks to sustain an aspect of the sentience responsibility that applied when we were EU members: the derogation to Article 13 of the Lisbon treaty, which exempts cultural practices from animal welfare considerations.

Again, I draw noble Lords’ attention to the fact that this derogation was negotiated during the Lisbon treaty by a very small number of EU Governments particularly looking to preserve practices such as bullfighting. I believe that we now have the freedom to widen our ambitions for animal welfare while still respecting cultural and religious practices. Indeed, the restrictions in Article 13 have frequently been cited as one of the key flaws in EU sentience policy that post-Brexit UK sentience policy can improve on. In fact, the then Secretary of State at Defra Michael Gove said in 2017:

“The current EU instrument—Article 13—has not delivered the progress we want to see. It does not have direct effect in law—in practice its effect is very unclear and it has failed to prevent practices across the EU which are cruel and painful to animals.”

Article 13 has not stopped any of those practices, but leaving the EU gives us the chance to do much better. This matter was discussed at length in Committee and the noble Baroness, Lady Fookes, made some good points about existing legislation. In Committee, in response to noble Lords’ concerns, many of which were exactly the same as those expressed today, the Minister assured us that any Minister would have to take into account the wider considerations of cultural and religious organisations and form views in accordance with them. I hope that he can similarly reassure noble Lords today.

Finally, I say to the noble Earl, Lord Kinnoull, that I am always happy to meet to discuss policy and legislation with anybody.

Lord Benyon Portrait The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)
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I start by wishing my noble friend Lord Mancroft a speedy recovery, and I am sorry he is not here. I am grateful to my noble friend Lord Marland for moving his amendment and the noble Baroness, Lady Deech, and others for speaking to it.

The amendment seeks to clarify the role and detail of the animal sentience committee. I reassure my noble friend Lord Marland and the noble Baroness, Lady Deech, that the Bill already makes it absolutely clear that the only role of the committee is to provide an assessment of the extent to which policy decision-making has considered whether a policy may

“have an adverse effect on the welfare of animals as sentient beings.”

We are sure that the Bill already makes it clear that the committee will not be authorised to stray into making value judgments, as the noble Baroness, Lady Hayman, just said, on how well a given policy decision balanced the welfare of animals with other matters of public interest. There is no need to specify explicitly in the Bill that it is for Ministers to take other public considerations into account when formulating and implementing policy, because this requirement applies as a matter of course.

Amendment 48 concerns the structure of the committee, criteria for appointments to it and how it is to operate. My noble friend’s amendment raises a number of points about the design of the committee, which I will address in turn. I agree with him about the optimal size of the committee. That is why we have already made it clear that there will be eight to 12 members, working part-time. We want the committee to have everything it needs to do its job well, and its members will be its most important asset. We are committed to ensuring that the committee is large enough to have a suitable breadth of expertise among its members, while not making it so large as to be unwieldy. Of course, the committee will always be able to consult outside experts when needed. Defra’s hosting allows it to be affiliated to the animal welfare centre of expertise and, as I have said, this means there will be enhanced liaison and co-operation between experts.

The committee has the statutory power to issue reports giving its opinion on whether, or to what extent, the Government are having, or have had, all due regard to the ways in which a policy might have an adverse effect on the welfare of animals as sentient beings. The Bill already places a legal duty on Ministers to respond to the committee’s reports within three months of their publication. Once established, it will be for the committee to determine how it fulfils its statutory functions. The draft terms of reference set out how we expect it to work.

Our approach strikes the right balance between offering clarity about the committee’s role and powers in legislation and allowing it sufficient flexibility. It provides flexibility to update the terms of reference when needed without the need to take up parliamentary time unnecessarily. Our other animal welfare expert committees, including the Animal Welfare Committee and the Zoos Expert Committee, have provided valuable advice to the Government for years without the need to set out their terms of reference in legislation.
Finally, I turn to Amendment 27 from the noble Earl, Lord Kinnoull. I am grateful to him for his explanation and the conversations we have had about this. This amendment would require the animal sentience committee to have regard to certain other matters of public interest, such as cultural traditions. It bears repeating that the purpose of the committee is not to make value judgments on the weight that animal welfare should be given in relation to other matters of public interest. That is for Ministers, who are rightly held to account in Parliament. I listened very closely to the noble and learned Lord, Lord Etherton. He is obviously well practised in the law and someone to whom I defer, but the balancing factor that existed in European legislation now lies with Ministers. They have the right to say, “We hear what the committee says, but we are going to take other factors into account”, and they could be exactly the concerns voiced by the noble Baroness, Lady Deech.
The reference to certain factors in Article 13 reflects the particular legal order of the European Union, with its complex division of Union and member state competence. The noble Baroness, Lady Hayman, referred to this. There is simply no need to make reference to the same factors in the Bill. The committee would have to make a value judgment on what it is or is not, and that is not the job of the committee and the Bill does not give the committee such powers. Ministers are responsible for determining the weight to be given to competing considerations when formulating policy in accordance with the rule of law. Nothing in the Bill will affect their ability to do so in the future. The Bill will not require Ministers to give greater weight to animal welfare considerations over other considerations in the public interest.
My noble friend Lord Marland referred to this somehow damaging the livelihoods of fishermen or farmers. It absolutely will not. Ministers are determined to make sure that there are good livelihoods for fishermen and farmers. We listen to noble Lords, and the Bill has been the subject of detailed consideration in this House and outside it. I tried to listen to as many noble Lords giving as many opinions on this as possible. I say to my noble friend absolutely clearly that the Bill does not set standards. I repeat for the third time that it does not make a value judgment. If farmers, fishermen or any other practitioner of rural or marine employment or livelihood are conforming to the norms and good behaviours that lie within their professional activity, they have nothing to fear.
I have never said in this House, in Committee or wherever that the Bill somehow came about as a result of social media. We are concerned about limiting the chance of the legal feeding frenzy that I referred to in Committee. That is why there are only two duties on Ministers: first, to create the committee, and secondly, for Ministers in the departments to which the committee reports to provide an answer within a reasonable period. We will come on to talk about that on a government amendment later.
I say to my noble friend that when I came into Defra in the coalition Government in 2010 there were 93 arm’s-length bodies. When I left in 2013, there were around 33. I absolutely believe in streamlining government wherever possible, but I also believe in good policy, and Ministers are not experts. They require the right advice and the right support at any time.
I say to the noble Baroness, Lady Deech, that I absolutely understand her concerns and those that were so eloquently put by the noble Lord, Lord Sheikh, in Committee. However, the rights that she talks about are not going to be decided by the animal sentience committee; they will remain within the policy-making of this and future Governments and it will be the job of Ministers, scrutinised by Parliament, to change any of those forms of slaughter or access to the measures that are of concern to her.
I state clearly for the record that the Bill is about the government policy-making process. It does not change existing law or impose any new restrictions on individuals or businesses. The Government would prefer all animals to be stunned before slaughter, but we respect the rights of members of the Muslim and Jewish communities to eat meat prepared in accordance with their religious beliefs. That is the Government’s policy and it will remain so.
I am concerned that this matter is resolved today. The Government will not be moving any further on this issue or have any more to say ahead of Third Reading. If the noble Earl wishes to test the opinion of the House, it is absolutely his right to do so, but I say to him, regarding the offer of a meeting involving the Front Benches and my officials to try to resolve this issue, that this is only half the process of this Bill; there is of course the other place for it to go to. I will certainly work with his expertise and the concerns that he and others have brought to try to find a way forward, but I want to resolve this matter today. I hope I have been able to reassure noble Lords and that the noble Earl will feel able to withdraw his amendment.
Lord Howard of Lympne Portrait Lord Howard of Lympne (Con)
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My noble friend repeatedly emphasised during the course of his reply that the decision on these matters would be made by Ministers, but he will know, as we all do, that the decisions of Ministers are subject to judicial review. We have heard from no less an authority than the noble and learned Lord, Lord Etherton, that, without the language contained in Amendment 27 in particular, the risk of judicial review of those decisions by Ministers is increased, not reduced. What is my noble friend’s answer to that point?

Lord Benyon Portrait Lord Benyon (Con)
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My learned noble friend will know that there will be attempts to judicially review Governments at every stage of a process of policy, particularly in areas that are emotive and that carry great weights of public opinion in one way or the other. The question is not whether judicial review will be attempted but whether it will be successful. Last week Defra won a court case—as we do many times—against an attempt to take things to judicial review because the judge said it was not permissible to take the matter any further. That is why we have strictly limited the duties on Ministers that lie behind the Bill to only two areas. So I am not saying at all that there will not be attempts to judicially review, but I hope I can convince my noble friend that those attempts will not be successful because we have been so careful to limit the scope of the Bill.

Lord Hamilton of Epsom Portrait Lord Hamilton of Epsom (Con)
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Would the attempt at judicial review not be more likely to be successful if there had been a report from the animal sentience committee saying that there was something illegal about ritual slaughter?

Lord Benyon Portrait Lord Benyon (Con)
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With respect to my noble friend, no. As long as the Minister has set out that, “We have received this report and here is our response; we hear what you say but there are wider cultural and religious factors that I have to consider in taking my decision”, that will be absolutely within the terms of this legislation and will not be able to be successfully judicially reviewed.

Lord Marland Portrait Lord Marland (Con)
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My Lords, I thank those who have spoken so eloquently, including those who have supported my amendments.

The Government really are in a mess on this subject. They cannot defend the reason for the committee. They do not know who is actually running these decisions—whether it is Ministers or the Government. Most people, once torpedoed beneath the bows by the very eloquent and eminent noble and learned Lord, Lord Etherton, would have given up and said yes, especially when followed by my noble friend Lord Howard, who underlined the terrible mess that the Government are in. The very fact that Defra has defended itself from legal disputes shows us the onslaught that is going to happen. If that were not enough, the noble Baroness, Lady Mallalieu, made a brilliant intervention showing that committees are already in place to help them.

We on our Benches want to help the Government, not to hinder them—we want to make this better for them. But I fear they have lit a long fuse that is going to explode in our faces in five to 10 years’ time, and there will be nothing that we can do about it. It will traipse through the courts, there will be no defence to it and all the warnings that we have given will have been to no avail.

I am a loyal member of our party, so I am not going to invite the opinion of the House, but I sense that there is a strength of opinion in support of the amendment from the noble Baroness, Lady Deech, so I would certainly not want to interfere on any decision that she might make on her amendments—but I hereby withdraw my amendment.

Amendment 2 withdrawn.
Amendment 3
Moved by
3: Clause 1, page 1, line 5, leave out subsection (2)
Lord Robathan Portrait Lord Robathan (Con)
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My Lords, in the absence of my noble friend Lord Mancroft, I have been asked to introduce this amendment. I think he is either on his sick bed or on a horse; I am not quite sure which.

Before I start, I will pay tribute to the Minister. He is making a pretty good fist of what is almost indefensible. I congratulate him but gently remind him that, although this may not be the result of social media, if memory serves me right he told us in Committee that, while still a Member of the House of Commons, he had had something like 200 messages—probably mostly from Liberal Democrat opponents—saying that the Government had to introduce an animal sentience Bill. He will correct me if I am wrong, but I think he told me that.

Amendment 3 and other amendments wish to introduce some clarity regarding the Government’s intentions about appointments to the committee and the committee’s own role in those appointments. For instance, should the Secretary of State appoint people; if so, what qualifications should they have and for how long should they be appointed; and, to quote from subsection (3), what “terms” will determine the appointments? I know my noble friend Lady McIntosh, a fellow “extremist right-winger”, will speak on later amendments on this subject.

One of the concerns expressed repeatedly as the Bill has made progress is the lack of clarity about the role of the committee, how members will be appointed and how the committee will operate. In response, the Minister agreed to publish the draft terms of reference, which has now been done, but the draft terms provide little additional clarity, and there is little if anything binding current or future Ministers. Indeed, the shortcomings of the terms of reference seem to confirm the concerns expressed by noble Lords at earlier stages. The terms indicate the establishment of this animal welfare centre of expertise, bringing together the various animal welfare advisory committees already in existence, as well as the new committee. This seems to be a recognition of the potential overlap and conflict between the various committees yet, unlike other committees, the sentience committee will enjoy statutory status and a reporting function to Parliament.

Perhaps most concerning is the ongoing lack of clarity as to whether the committee will be looking at and advising on the process of making and implementing policy, or indeed of policy itself. The terms of reference state that once established, it will be for the committee to formally ratify its objectives and responsibilities. As a committee established by statute, its objectives and responsibilities should be found in the establishing Act of Parliament, which we are discussing now. It should not be for the committee to ratify its “objectives and responsibilities”. These amendments, together with proposed new Schedule 1, seek to give some clarity and certainty where this is currently lacking.

I do not wish to repeat things that have already been said or detain the House unnecessarily, but I believe that the terms of reference leave unresolved a great many issues.

Baroness McIntosh of Pickering Portrait Baroness McIntosh of Pickering (Con)
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I congratulate my noble friend Lord Robathan on stepping into the breach at such short notice and so eloquently moving Amendment 3. I will speak to Amendments 4, 6, 8 and 10 in my name, and I associate myself with earlier comments on the general thrust of this Bill put by the noble Lord, Lord Marland, in moving his Amendment 2 in the earlier group.

I share the general concern of those who are sceptical about the need for this Bill. I see it as a further onslaught on farming and livestock producers, particularly those in the uplands. I yield to no one in my praise and admiration for the way they go out in all weathers to produce lambs and suckler cattle at this time of year and, especially, in the spring. We are conscious of the fact that, in the north-east of England, there are some 12,000 people without electricity; presumably, the farmers are having to milk the cows by hand, which, of course, takes a lot longer than would normally be the case by other means.

As I mentioned earlier, I would prefer that we keep to the basics of the manifesto. I have now had a chance to reacquaint myself with Article 13, which states:

“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.”

This neatly makes the case for the main thrust of my argument—the reason why Clause 1 is not required is that it is adequately covered by Article 13. I look forward to hearing a strong argument and reassurance from my noble friend the Minister as to why that should not be the case.

I echo the remarks of my noble friend Lord Marland; it would seem that the Government are drifting away from supporting farming, maintaining self-sufficiency in our food production and our high standards of food production. However, through this Bill, the subsequent regulations and, no doubt, the advice of the committee being set up by Clause 1, we are actually making life much more difficult, in particular for livestock producers. I put on record my regret for that, particularly with respect to tenant farmers—and 48% of farmers in north Yorkshire fall into that category.

In speaking specifically to my Amendments 4, 6, 8 and 10, I refer to the earlier arguments put by the noble and learned Lord, Lord Etherton, and pay tribute to the work done by the noble Lord, Lord Anderson, in private practice on what constitutes “an act” for the purpose of judicial review. I humbly submit to my noble friend the Minister that the animal sentience committee’s terms of reference—a final draft of which was sent to us on 17 November 2021—will indeed constitute an act that would be justiciable as regards a judicial review. Is there a strong reason why that would not be the case?

In Committee, when I moved similar amendments, I did not obtain the reassurances from the Minister that I sought at that stage. He argued that he did not want to put on the face of the Bill the length of time for an appointment. I argue in my Amendment 4 that appointments under Clause 1 should be

“for a period of three years”.

I argue in Amendment 6:

“The membership of the Committee is to include, amongst others … a veterinary surgeon; … an active farmer or person with knowledge of livestock production or land management; and … a person with knowledge of slaughterhouses”.

Abattoirs are, if you like, the final nail in the coffin for the animal, which is sent on its way. That is my plea for more detail in the Bill.

Equally, I have set out perhaps greater detail in Amendment 8. I lifted this text from an earlier Bill—it might have been the Trade Bill, now the Trade Act, with respect to the Trade Remedies Authority. I forget which Bill it was, but I am grateful for the help that I received from the Public Bill Office in drafting the amendment. In desperation, I have also retabled Amendment 10 to leave out Clause 1 in case I do not get satisfaction and reassurance from the Minister this evening.

The Minister’s argument is flawed. If he does not wish the detail to be on the face of the Bill since this would constitute an act that is justiciable in terms of a judicial review, I argue that it was equally inappropriate to put in his letter to us of 17 November, as well as in a separate printout of the terms of reference, what the remit and constitution of the committee would be. Even though it is a separate document, that is as justiciable as it would be if it were on the face of the Bill.

I am extremely proud to have been a student of constitutional law at Edinburgh University under the excellent tutelage of Professor JDB Mitchell, who was at the time a leading expert in administrative law. I keep his book in the kitchen. My husband sometimes thinks that I am confusing administrative law theory with my recipes, which is why I often leave the cooking to him. A more up-to-date authority that I turn to is the Public Law Project, which sets out, for example, what can be challenged. It says:

“Decisions, acts, and failures to act by public bodies exercising their public functions are all potentially challengeable by judicial review.”

I must be simple in not being able to follow my noble friend’s argument but, to be absolutely clear, why is it not acceptable to put in the Bill the level of detail that I am seeking, but acceptable to put it in the supplementary documents? These are easier to amend but, in my view, because they constitute an administrative act, they will be equally justiciable.

I end with a last request to understand why, when just about every other Bill introduced by the Government since 2017 has waxed lyrical as to the composition and remit of the committee it set up, that is deemed not to be subject to judicial review, yet this is subject to judicial review. With those few remarks, I look forward very much to receiving reassurances from my noble friend the Minister.

Baroness Bakewell of Hardington Mandeville Portrait Baroness Bakewell of Hardington Mandeville (LD)
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My Lords, this is an interesting group of amendments seeking to specify the membership of the committee. The noble Lord, Lord Robathan, and the noble Baroness, Lady McIntosh of Pickering, have set out the rationale for their amendments and there are some contradictions. Amendments 3 and 5 would remove the Secretary of State from the process altogether, whereas Amendment 8 would leave the power to appoint with the Secretary of State. Amendment 6 would ensure that certain levels of expertise were included in the committee’s membership.

I agree that certain skills and level of expertise are important, and can see immediately from the list that a single person can have more than one skill level and fulfil more than one function. For instance, the law currently requires that a veterinary surgeon must be present in a slaughterhouse. Therefore, he or she will have knowledge of the way a slaughterhouse operates.

However, whether such people will have time to sit on the animal sentience committee remains to be seen. A veterinary surgeon who no longer works in a slaughterhouse might do, depending on their current workload, but setting the membership in legislation could be something of a millstone around the neck of the chair or the Secretary of State, whoever is recruiting the membership.

The list of what the animal sentience committee can and cannot do under the amendment in the name of the noble Baroness, Lady McIntosh, is extensive and somewhat cumbersome. I believe it could be streamlined. I look forward with interest to the Minister’s response to these issues.

Lord Hannan of Kingsclere Portrait Lord Hannan of Kingsclere (Con)
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My Lords, this block of amendments goes to the heart of what is wrong with the proposal. We all have an idea of who “the expert” is and what kind of person will give us the answers we want, whether that is a vet, someone banned from being a member of an animal rights movement, or whatever. The idea that there is some disinterested, impartial, patriotic expert who can somehow rise above the rest of us and be the only objective person is one of the most pernicious ideas in modern politics. We all have our opinions and starting assumptions, the “expert” more than anybody, if by “expert” we mean someone has spent his or her career in one field. They are the last person to whom we should contract out our decisions as a parliamentary assembly.

I totally understand that the Minister will want some flexibility, but a later amendment in the name of my noble friend Lord Howard of Rising proposes a sunset clause. Maybe we could see whether the committee works out with the experts as proposed in the way the Minister assures us. If it does there will be no problem, and, if not, we will have another go at it. Perhaps that would be the wise amendment for the Government to accept.

Baroness Hayman of Ullock Portrait Baroness Hayman of Ullock (Lab)
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My Lords, the amendments in this group all refer to the make-up of the membership of the committee and how it is appointed. Noble Lords who were with us in Committee may remember that when we debated membership of the committee, a number of us, including me, put forward amendments about its make-up and who should be on it. By the end of that debate, I felt that it had become absurd to prescribe exactly what kind of expert we should have and what area they should come from, because by the time we had finished it looked like the animal sentience committee would have a membership of around 170. We have to be practical and make sure we get the right kind of people on the committee without being specific in the Bill about exactly what job or experience they should have, because where do you end? At what point do you draw the line?

So it is important that within the terms of reference we have a clear understanding of what the committee’s role is; that is, to underpin and enhance a fundamental constitutional principle—namely, ministerial accountability. It is also important that the terms of reference make it clear that the committee is expected to operate and promote a culture of openness. It is therefore important that we have the right and proper people on it.

I am sure the Minister will point it out when he speaks, but the terms of reference clearly state that appointees will be experts—I am disappointed that the noble Lord, Lord Hannan, is of the same opinion as Michael Gove that, we “have had enough of experts”, but there we are. Appointees will be experts with the appropriate experience relating to policy decision-making and the welfare of animals and the Secretary of State may seek to promote a diversity of expertise—which is important, as we need a proper diversity of expertise—so that the committee can offer high-quality advice on policy decision-making and its animal welfare implications.

From my perspective, and that of these Benches, the concerns that we raised in Committee about what the committee should look like and who should be appointed as a member have been answered by the terms of reference, and we are happy with what we see in that document.

Lord Benyon Portrait Lord Benyon (Con)
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I thank noble Lords for their valuable scrutiny of the Bill, and the envisaged structure and operation of the animal sentience committee. I will address the points raised in turn.

I start with Amendments 3 and 5 in the name of my noble friend Lord Mancroft and ably proposed by my noble friend Lord Robathan, concerning the membership of the committee. These amendments would limit the power of the Defra Secretary of State in appointing members to the committee. We believe that the Defra Secretary of State is very well placed to be responsible for those appointments.

Defra has a long track record of recruiting expert advisers to give balanced, reasonable advice on animal welfare issues. Appointments will be decided in accordance with the Governance Code on Public Appointments, and this is important. The aim of the code is to ensure the best applicants are appointed. Anybody suitably qualified and wishing to apply would need to be assessed alongside other candidates according to a rigorous selection procedure. Applicants would, in line with best practice, be required to declare any potential conflicts of interest to the recruitment panel. Your Lordships can be reassured that the process of recruitment of members to the committee will be rigorous and that members will be chosen on the merits of their expertise. This is what is needed for the committee to perform its role.

I thank my noble friend Lady McIntosh of Pickering for her Amendment 4, concerning term limits for members of the committee. Before I get into the meat of her point, I will say that our commitment to supporting farmers is total. I ask her to read, if she has not already, a copy of the speech made by the Secretary of State on Thursday; it sets out our commitment to support farming and farmers, particularly in the upland areas that I know I know are dear to her.

I agree with my noble friend that the committee should benefit from fresh thinking and new perspectives, but this should be balanced against the risk of unnecessary churn and loss of talent. Setting inflexible term limits could prove disruptive to the committee’s work. It would be regrettable if a member’s term ended mid-report, for example.

Additionally, we should allow some room for manoeuvre in exceptional circumstances; for example, the ongoing pandemic. This was a point well made by the noble Baroness, Lady Bakewell, who may not have been referring to the pandemic, but her point was right. The pandemic disrupted recruitment to several organisations, and I would not want to take away the ability of the Secretary of State to apply short extensions to members’ terms if necessary.

We have sought to strike a sensible balance in the approach outlined in the draft terms of reference—I am grateful to the noble Baroness, Lady Hayman, for her points about that. Members would, in general, be appointed for terms of four years, renewable once. This is the standard approach for public appointments of this nature. These are the same terms on which we appoint members of other animal welfare expert bodies such as the Animal Welfare Committee and the Zoos Expert Committee. It is tried and tested.

Of course, there will be safeguards. As set out in the terms of reference, the Secretary of State reserves the right to terminate appointments if he or she considers that a committee member’s performance, attendance or conduct has been unsatisfactory, or if there is a conflict of interest which threatens the integrity of the committee. I hope my noble friend will agree that our proposed approach strikes the right balance.

I turn to Amendment 6, also in the name of my noble friend Lady McIntosh, concerning the membership of the committee. I agree with my noble friend that vets and livestock farmers have a lot to contribute when considering animal welfare. We recognise the importance of having experts with hands-on experience of working with animals on the committee. Anyone who is an expert in the fields of animal behaviour, animal welfare, neurophysiology, veterinary science, law and public administration who wished to apply would be assessed alongside other candidates via a rigorous selection procedure based on fair and open competition. We want to ensure that the committee benefits from a diversity of expertise, and we hope to encourage applications from a wide range of specialists.

That is one reason why we have sought to avoid being too prescriptive about the make-up of the committee, be that in the Bill or in the draft terms of reference. Also, the expertise required by the committee may change from time to time as the scientific understanding of the welfare needs of animals continues to evolve. It is important that the Bill leaves scope to adjust the committee’s membership as required. It is also important to avoid creating requirements in the Bill that are so specific that they lead to appropriate candidates being unable to fulfil the criteria. For these reasons, I would prefer an approach that encourages the recruitment of a diverse range of experts to the committee, rather than setting out too-rigid specifications in statute.

I turn to another amendment in the name of my noble friend Lady McIntosh, Amendment 8, concerning the governance and operation of the committee. When we last discussed this amendment, my noble friend stressed that it is

“intended to be entirely helpful”,—[Official Report, 6/7/21; col. GC 298.]

and I am grateful for the constructive suggestions that she has offered. The draft terms of reference reflect many of the points raised in the amendment. As I have said, they make provision for the Secretary of State to remove underperforming members, and they also propose term lengths and performance management procedures.

My noble friend has said that her amendment is based on the text used in the Trade Act to describe the Trade Remedies Authority. I would argue that the committee’s role and remit is very different from the authority’s, and so provisions appropriate to the latter are not necessarily suitable for this committee. For example, there is no need to create executive and non-executive classes of membership for the committee. It will be the members themselves who prepare reports, with assistance from the committee’s secretariat. There is little need to codify any delegation of functions. In the committee’s case, it is the Secretary of State who should ultimately be responsible for its good governance and effective recruitment. The draft terms of reference make this responsibility clear. I would be reluctant to dilute this accountability by delegating such responsibilities as the amendment proposes.

We have proposed an approach that makes Ministers accountable for ensuring the committee is run well, while avoiding excessive red tape. We want a timely, targeted and proportionate accountability mechanism. This requires the committee to have sufficient confidence and independence to offer meaningful scrutiny, but without conferring legal powers and responsibilities on it which are not appropriate for a body of this size and remit.

Finally, I turn to Amendment 10, also in the name of my noble friend Lady McIntosh. I understand that my noble friend and other Peers have queries regarding the need for such a committee and suggest its functions could be subsumed into the Animal Welfare Committee—a point made by the noble Baroness, Lady Mallalieu, earlier. The two committees have different roles. The animal sentience committee needs to be established in statute to provide for effective parliamentary accountability. The Animal Welfare Committee operates very effectively as a non-statutory body that provides expert advice on specific issues set out in remits issued by the Government. While both committees hold expertise in a similar area, their roles are distinct. For the legislation to require Ministers to publish a written response to a report by the committee, and to lay the response before Parliament, the committee must be referred to in the Bill. It is on this basis that the committee has a legal persona, and this role could not be undertaken by a completely non-statutory body such as the Animal Welfare Committee.

The animal sentience committee and the Animal Welfare Committee will be affiliates sitting within the animal welfare centre of excellence. We expect that, within the centre, the committee will have a particularly close working relationship with the Animal Welfare Committee. The two committees may refer issues to each other as required. However, the function to issue reports on how well central government policy decisions have taken the needs of sentient animals into account can be undertaken only by the animal sentience committee, in accordance with the parameters set out in the Bill.

I hope that I have been able to reassure noble Lords and that they will feel content not to press their amendments.

Baroness McIntosh of Pickering Portrait Baroness McIntosh of Pickering (Con)
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My Lords, before my noble friend sits down, he has not explained why he argued so vigorously in Committee that, if the details that are now in the terms of reference appeared in the Bill, they might be subject to judicial review. His view must be that, because they are in the terms of reference, they are not subject to judicial review. In my view, they constitute an administrative act, so how is he going to get round this and avoid judicial reviews?

Lord Benyon Portrait Lord Benyon (Con)
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If, as my noble friend suggests, we put details in the Bill that incorporated the types of people who had to be on the committee, and then if, for example, someone were off sick or had not been appointed or for whatever reason was not available at the point at which the committee wrote a report, that would leave the Government open to a successful judicial review. These are matters that we think sit absolutely in accordance with other committees that are set up across government, where the terms of reference are amendable without having to go back to legislation. This is a fast-moving area of policy and, in future, we may feel, after thinking about it for a while, that the terms of reference need to be amended. This allows, in an entirely normal way, the Secretary of State to make those amendments in consultation with others. I do not think that it would be wise to put it in the Bill because that would increase the risk of judicial review.

Lord Hamilton of Epsom Portrait Lord Hamilton of Epsom (Con)
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I have two questions for my noble friend before he sits down. Does he accept that the Animal Welfare Committee could have been put on a statutory basis and its remit expanded to take in animal sentience? Secondly, if there were a change in Government after the next election, could a Labour Secretary of State put totally new people on the sentience committee?

Lord Benyon Portrait Lord Benyon (Con)
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Let us deal with the second question first, then I will see if I can remember the first. A future Government can bring in legislation, if they have a big enough majority to get it through, to do anything they like within the law. We are a sovereign nation and they could take those decisions—indeed, they could populate arm’s-length bodies and expert committees with who they like.

On the first question, no we could not, because the Animal Welfare Committee has a different remit. For starters, it is a UK-wide committee and it is not a creature of statute; it gives expert advice as and when required. We wanted to have a body that is a creature of statute, so that there is parliamentary accountability in the process of policy-making.

Lord Robathan Portrait Lord Robathan (Con)
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My Lords, for one glorious moment I thought that the noble Baroness, Lady Hayman, was going to support the amendment that I moved—she disappointed me, but then what do you expect?

I do not wish to detain my noble friend the Minister any longer. I will let him off the agony and let him go and have some dinner. Notwithstanding the fact that I remain convinced that there is very little clarity either in the Bill or the terms of reference, I wish to withdraw my amendment.

Amendment 3 withdrawn.
Amendments 4 to 6 not moved.
Sitting suspended.