An Animals’ Ombudswoman

Law is our language of natural justice which we use to speak for the strong and the weak. Part of its purpose is to protect people from the arbitrary power of the State and the caprice of the police. Law is a living instrument that offers us protection before we are born and after our death. Many legal bodies we have help us to keep our hard-won freedom. Yet our past and present is tainted by our cruelty to those who we have under our control. We have targeted anyone who is different, deemed them to be inferior and made them victims of prejudice. While those chosen are treated unequally our bias is justified by the blind eye of the law. So we have easily identifiable targets like blacks, children, Jews and women.

Above all those, one group was and remains a victim. Consequently they have been abused, burnt at the stake, guillotined, hanged at the gallows and used as weapons of war. More than mere exploitation, their rights extend to the right to be killed at will and eaten. As to who and why the reason is the same: animals because they are animals.

Though it has not always been so, most humans now have rights because they are human. We have not restricted these rights to people who are rational and sentient. Rights apply to all within the species homo sapiens. That is our defined limit. No other species can climb the ladder of law. We have chosen to deny rights to animals based on a conspiracy: our self-ordained superiority means they have no claim to human justice.

Vivisection:

Property is important in law because it can be possessed and owned and consumed. Animals are and always have been our property. Vivisection is legal because animals have a value to us as experimenters’ tools. The House of Lords, then England’s highest court which was renamed the Supreme Court in 2009, put the position beyond doubt:

“The scientist who inflicts pain in the course of vivisection is fulfilling a moral duty to mankind which is higher in degree than the moralist or sentimentalist who thinks only of the animals. Nor do I agree that animals ought not be sacrificed to man when necessary. A strictly regulated pain to some hundreds of animals may save and avert incalculable suffering to innumerable millions of mankind. I cannot doubt what the moral choice should be. There is only one single issue:” per Lord Wright in National Anti-Vivisection Society v. IRC [1948]

This Aristotelean spirit places all animals below every human. However, is there only “one single issue”? Is it no less than prejudice to claim without doubt that animals under your control are bound to be morally and legally inferior to all “mankind”?

Lord Wright made his position plain, proving it was not limited to sacrificing animals for some questionable scientific purpose. He explained, “However it is looked at, the life and happiness of human beings must be preferred to that of animals.”

The Law Lords had adopted our apathy towards the suffering of animals as public policy. So Lord Wright used our indifference to endorse speciesism as the lodestar of our law.

Ombudswoman:

That principle remains the law because animals have no legal personality. Given their inability to resist injustice, they have no one to speak for them against those who harm them: us. For animals to have a future in our society they need rights with a human face. Essentially they need what we have: a legal representative, an Ombudsman or preferably an Ombudswoman, taking a lead from Baroness Hale, the only lady in the Supreme Court, whose motto is Omnia feminae aequissimae: ‘women are equal to everything’.

In the early 19^th Century the citizens of Sweden were concerned that the Chancellor of Justice was too closely linked with the Government. Consequently a new Constitution was adopted in 1809 and with it a Justitieombudsman was created. His role as a ‘Legal spokesman or Minister of Justice’ was to ensure that ‘The general and individual rights of the people should be protected by a guardian appointed by Parliament.’ His powers gave the ordinary people strength as it ‘guaranteed their civil rights.’

In 1966 the English Parliamentary Commissioner for Administration, popularly known as the Ombudsman, was appointed. His powers are similar to a High Court Judge. If he finds a person has been treated unjustly and those responsible refuse to remedy the wrong, he can report direct to Parliament. Then Parliament could intervene or ultimately compel a change by legislation. The vital characteristic of the Ombudsman is his independence.

Animals need a legal watchdog because they are the perennial underdog’s underdog. In a democracy there are bulwarks that guarantee people’s freedom. In a dictatorship people have the final means of resolution by revolution. So by vote and voice they can persuade or force a Government to change. Yet whether it is a democracy or dictatorship, animals are always equally unequal and denied the means of dissent. Like Saul’s persecution all they can do is await their fate at the gate of the abattoir and the clasped laboratory cage and occasionally kick against the pricks.

Reform:

Whilst law usually moves slowly to reflect the mores of society, it can also lead the way. The Race Relations Act was introduced in 1965 to help minority groups who were subject to prejudice. Whilst racism still exists, that Act has helped to change views and attitudes. Prior to 1965 notices advertising accommodation often displayed the landlord’s naked hatred: ‘no coloureds, no Irish, no dogs’. Now, to paraphrase Martin Luther King, the law may not make a white redneck love his black neighbour, but at least it is less likely he will be lynched.

In 1975 the Equal Opportunities Commission was created to ensure equal opportunity between the sexes. Using the provisions of the Equal Pay Act 1975, the EOC has made strides in curbing many forms of discrimination which are suffered mainly by women. Sexual harassment, as common as bullying at work, though previously not really recognised, can now be remedied by civil and criminal law.

Andro Linklater when analysing the legal status of married women accurately stated: “The Common Law recognised wives only as the creatures of their husbands – ‘something akin to his pet monkey’ ” [An Unhusbanded Life].  Finally in 1991 the House of Lords abolished the ancient rule that a husband could not be guilty of raping his wife. In R. v .P.  Lord Keith said, “Marriage was in modern times regarded as a partnership of equals and no longer one in which the wife was to be the subservient chattel of the husband.” Their Lordships’ rejection of the perception of women as chattels instantly changed their legal role and status forever.

In 1991 the Children’s Act was introduced to give children wide-ranging legal rights. The Act was described by Lord Mackay, the Lord Chancellor, as “The most comprehensive and far-reaching reform of child law which has come before Parliament in living memory.” That Act was necessary because children are vulnerable and need protection from other humans who could and would abuse them. Allied to that Act a Minister for Children has also been appointed.

Sea Change:

The law is shaping society by using the intersection of humanity and morality as a gauge.  So it seeks to protect those otherwise prejudiced by age, capacity, race, religion and sex. These legal changes have transformed a burden into a benefit so their vulnerability is accounted for and counter-acted. Animals need a legal representative for precisely the same reason. Animals are by nature our victim’s victim. As a corollary an Ombudswoman should be appointed to:

1. Represent all animals in Court and Parliament where any action affects their future;
2. Liaise with the Law Commission to introduce a new Act with the paramount principle of granting animals a legal personality.

An Ombudswoman would lead to numerous positive practical consequences for animals. In 2008 The Leg Disorders in Broiler Chickens Report from Bristol University found that chickens are routinely “Almost unable to walk…”and concluded that, “The welfare implications of this study are profound. Worldwide approximately 20 billion broilers are reared within similar husbandry systems that are biased towards economics of production and detrimental to poultry welfare.” That result cannot be reconciled with the duty of care imposed on us for them by the Animal Welfare Act 2006. A Minister would investigate the position and if proven, prosecute those who breached their legal duty.

Similarly there is an arguable case that badgers should not be culled at all because the expert evidence is open to doubt and there are alternative humane options available. Even the final Report of Professor John Krebs in 2007, whose Group investigated the problem over a period of 8 years, concludes the cull is wrong in principle: ‘While badgers are clearly a source of cattle TB, careful evaluation of our own and others’ data indicates that badger culling can make no meaningful contribution to cattle TB control in Britain.’

Meanwhile the experts have endorsed their respective views with a clearer conviction. Krebs recently countered the criticism of those scientists who support the Government’s position by a succinct riposte: ‘I can’t understand how anybody who’s looked at the science would say this is a good idea.’ Further in September 2013 he stated that the politicians are wrong as the ‘scientific evidence is clear-cut…and cannot be used as a justification for killing badgers’.  That view is shared by Professor John Bourne. His comment on why it continues, despite the contradictory evidence, confirms the cynical politics right at the core of the cull: ‘I think the most interesting observation was made to me by a senior politician who said, “Fine John, we accept your science, but we have to offer the farmers a carrot. And the only carrot we can possibly give them is culling badgers”.’

During that discussion between the President of the National Farmers Union, Peter Kendall, and Chris Packham, a wildlife expert, the conclusion raises an alarming scepticism about this Government’s motive:

Kendall: How could a badger possibly be a carrot?

Packham: When it is a scapegoat. [ The Independent: 9/10/12 ]

Unlike politicians, a Jury is not moved by prejudice or presumption as their verdict depends on nothing less than positive proof. Why then is the same approach not used when politicians kill badgers if the evidence is at best doubtful and at worst inconclusive? Given the circumstances a Minister would have to act in the badgers’ legal interests.

On 8 August 2013 Home Office Inspectors found several staff at scientific laboratories had breached their legal duty as some animals had starved to death while others were experimented on without pain relief. As usual the ‘evidence’ was cloaked in bureaucratic secrecy. Was anyone prosecuted? Of course not as is the usual practice. However as by section 58 of the AWA 2006 the experimenter is not exempt if the act is ‘unlawful’, an Ombudswoman would have the power and duty to analyse the evidence and decide whether they should be prosecuted. Legally she would be the dead victims’ voice.

Sentience:

Some will argue that animals cannot have rights because they do not have responsibilities. Hence there is no legal contract, no reciprocity and no quid pro quo. While that has a superficial logic, the premise is palpably false. For people who are disadvantaged in some way, by infancy or insanity or being locked in a coma, are still protected from being harmed. Yet they cannot, whether from age or mental capacity, enter into a contract with society. They have no legal duty to or mutual responsibility for others. As a consequence it is illogical to deny animals similar rights simply because they are another species. Animals can and do suffer because like us they are sentient.

The crucial moral issue is magnified in sharp focus by a single question: what is the difference between (a) a cat in a laboratory cage ready to be used in a legal experiment and (b) a cat in a cage in a Chinese market ready to become a politician’s lunch and (c) a feral cat on a farm scavenging for food and (d) the pet cat curled up on Granny’s lap?

In 2012 Helen Newlove was appointed the Victims Commissioner following the murder of her husband, Garry, by three thugs who capriciously attacked and kicked him to death. She is now the voice for all victims within the whole of our criminal justice system. Her mantle should be extended to give life to animal rights within our jurisprudence. For while animal welfare may lead to killing with kindness, truth to tell the victim is still dead. We have the opportunity to take action to improve human rights and animal rights. For each is connected in a chain of compassion where life has value whoever is the victim regardless of the species. By choice we should use the law to make our voice their voice. Then sword and shield of our law would change their fate and fortune and future forever.

~  (c) N. C. Sweeney

Author: Noël Sweeney is a practising barrister who specialises in criminal law, human rights and animal law. He has lectured and written widely on the subject of animal law. In 2013 he has written the seminal work on animals and criminal law: Animals-in-Law.

An abridged version of this article appeared in Criminal Law and Justice magazine.