David Thomas is an animal protection lawyer and a judge. A voice for the voiceless, he has taken many cases for Cruelty Free International and other organisations. He is also a current trustee and past Chairman of the RSPCA. Here he explains how the law, along with campaigning, can be employed for the protection of animals.
To begin with a reality check: there is, indisputably, exponentially more suffering visited by humankind on animals today than 200 years ago when there was no animal protection law, when a person could beat their horse to death just because it was theirs. Attitudes are generally more enlightened, and there is less domestic cruelty, but the growth in technology and international trade has meant that humans can exploit animals in ways hitherto not possible. Governmental and industry secrecy aids the process.
And animal protection law is partly to blame: gratuitous cruelty aside, protection is conditional on non-interference with some human interest deemed more important, whether cheap meat, clothing, medical science, product safety, recreation or cultural tradition (such as bullfighting). The law, where it exists at all, generally prohibits only unnecessary suffering, which means that necessary suffering is allowed, and of course it is human beings who decide where the lines are drawn. With legislation safeguarding people, by contrast, the protection is unconditional: we don’t balance the desire of slaves for freedom with the economic interests of slave-owners.
So, we need a change in legislative philosophy, so that animals, too, are accorded unconditional protection from cruelty, with sanctions sufficient to deter.
Legislation is nearly always the goal of animal protection campaigners. But the law can be utilised much earlier in the campaigning process; indeed, at every stage. Let me explain.
First, what is campaigning? Campaigning involves influencing those with power: politicians, the media, officials, courts and, of course, consumers and the general public. It is usually designed to achieve desirable change, for example to ban a cruel activity, such as an intensive farming technique, trade in wild animals or a type of experiment. Sometimes, however, it is to resist change, such as the repeal of the Hunting Act. One can never assume that positive change is set in stone: the forces of reaction will forever chip away.
The embryonic stage of any campaigning journey is obtaining information, to educate oneself and then targeted audiences. Without information, nothing is possible. This is why freedom of information legislation around the world is so important. Inevitably, there are many exemptions to the right to information from public bodies, and those bodies sometimes resist release beyond the realms of reason. Newcastle University spent an astonishing £250,000 (unsuccessfully) contesting the disclosure of information about controversial neuroscience research on macaques. The information once obtained enabled Cruelty Free International (CFI) to bring a judicial review, which led to the Government assessing suffering in these kinds of experiments more realistically.
Undercover investigations, too, are a key tool for obtaining information, unmediated by reassurances from Government and industry that all is well. Investigations have played a key role in educating public and legislators about the reality of the fur trade, dog fights and badger baiting, mink farms, pig farming, the live exports trade and many other areas of animal exploitation, and have facilitated successful court challenges. For example, following CFI’s undercover investigation at Wickham Laboratories, a judicial review led to improvements in the application of the law requiring alternatives to be used where available and the prohibition of conflicts of interest (the lab owner was the nominated veterinary surgeon).
Armed with information, the battle for hearts and minds can begin. The objective is the securing of a level playing field in public debate. This may involve threatening and even bringing, or defending, libel proceedings and using press regulators. The right to peaceful protest should not be taken for granted: there are those who would silence protesters and legislation restricting protest is sometimes draconian. One may need to make or defend a complaint to the Advertising Standards Authority, press regulators, the Market Research Society (about opinion polls) and various ombudsmen (who police maladministration). It is important to keep within reasonable bounds charity law constraints on campaigning.
Legal skills have a place, too, in the political process, for example in drafting parliamentary tools and European Union citizens’ initiatives. Responses to governmental consultations can highlight the shortcomings of existing law and propose coherent solutions. Sometimes, it is necessary to persuade legislators that they can legislate, consistent with international obligations. For example, sustained legal argument eventually persuaded the EU that bans on the import of animal-tested cosmetics, dog and cat fur and seal products would pass muster under World Trade Organisation (WTO) rules, and indeed a WTO challenge by Canada and Norway to the seals products ban failed. Attempts by pro-hunters to use EU law and European Convention on Human Rights to undermine the hunting with dogs ban were successfully resisted.
It takes a long time to achieve legislation, and even then it is likely to be an unsatisfactory compromise. If the legislation is EU, it is important to ensure that it is properly transposed into the law of member states (often it is not). Enforcement is frequently inadequate, either because of parsimonious resources or the failure of governments to interpret legislation as intended. The task of animal protection lawyers is to secure the best interpretation and ensure enforcement. In this country, judicial reviews are an important tool, and even their availability can have a salutary effect on ministers and officials. Sometimes, it is possible to intervene in cases brought by others, for example at the Board of Appeal of the European Chemicals Agency (hearing cases about the chemicals legislation REACH, which requires a huge amount of animal testing).
Where the state will not prosecute, organisations may need to. Prosecutions under the Hunting Act, for example, have shown that, contrary to the claims of opponents, it is workable, which in turns provides political ballast for its retention. Equally, some cases have highlighted the need to plug loopholes in the Act.
There are myriad other areas where the law can help to advance animal protection. The public does not generally realise that it is possible to patent the ‘invention’ of animals (through genetic engineering), and thereby obtain a lucrative monopoly: it is at least possible to limit the use of patents through public morality exceptions. With creativity, one can use planning law to object to new developments, such as mega-dairies, where animals will be forced to live unnatural lives. Misleading labelling, for example of products containing fur, can be exposed and challenged.
There is a correlation between the development of legal argument and of ethical principle (often itself based on religious tenet): each can potentiate the other. In a properly-functioning democracy, the law should reflect prevailing morality, although sadly frequently does not.
Using the law for animals is no panacea. But I am convinced that it has a crucial part to play in securing and maintaining meaningful protection, when integrated with all the other campaigning techniques: education, robust science, ethical argument, creative use of traditional and social media, protest, harnessing public opinion and lobbying. Successful campaigns deploy all these techniques synergistically.
Recent weeks have seen encouraging green shoots in political discourse, with the Conservatives and Labour engaged in an auction of measures to garner public support, especially from the young. But there remains a chasm between the reality for too many animals and the aspiration of most citizens. Judicious use of the law can contribute to the filling of that chasm. Animals need all the help they can get.