ON DECEMBER 22, Emma Reynolds, the Secretary of State for the Department for Environment, Food & Rural Affairs (Defra), published the government’s Animal Welfare Strategy for England.

It is full of meaningless platitudes and deliberately vague commitments such as, “The government is committed to a generational step change in animal welfare”; “We will take a dynamic systems approach to animal welfare”; and “The government will take an approach which considers animal welfare in the round.”

This round approach involves protecting the welfare of animals “in a way that considers potential impacts on the economy, UK businesses and the cost of living.” As Walter Mondale once put it, “Where’s the beef”?

The government’s only piece of primary animal welfare legislation in 18 months is a short Act that bans the export of livestock for slaughter. The four welfare Bills presently before Parliament are all private member’s Bills. The most important of them requires the Secretary of State to prohibit the use of animals in medical research by January 1 2035. It is unlikely to become law.

The legal relationship between humans and other animals has a complicated, sometimes strange, history. In his remarkable book of 1906, The Criminal Prosecution and Capital Punishment of Animals, EP Evans recounted how animals were prosecuted for crimes in European courts from the Middle Ages onwards and, if convicted, subjected to legal punishment, including public execution. In one case, a sow was sentenced to death, but her piglets were acquitted on account of their youth and their mother’s bad example.

The French jurist Chassenee made his reputation as counsel for an unspecified number of rats charged with having feloniously eaten and wantonly destroyed local barley. He successfully had the single summons set aside on the ground that it was insufficient to notify all of the defendants, who were dispersed across many villages and a large tract of countryside.

What is striking is not just that animals were prosecuted but that they had the full protection of the law, including the benefit of legal precedent, criminal procedures, legal representation and mitigation. If one looks back further still, in classical Athens a special court was convened to try inanimate objects involved in accidental deaths, such as stones and beams, as well as animals that had caused human death.

Our laws today do fully distinguish between animate and the inanimate creation and between humans and other animals, but confer no legal rights on the latter. This raises the question whether our legal system is fair and humane.

The current law regards animals as property and as objects. Occasionally, this can be used to their advantage. In the Court of Protection, when appointing someone to manage an incapacitated person’s property, I would add the following clause to the order: “The deputy is required to make arrangements to ensure that X’s pet receives at least the same quality of care that it received under X’s personal care and the said pet is not to be destroyed unless a veterinary surgeon advises that this is necessary on clinical grounds to spare the pet significant suffering.” In practice, this gave the animal legal rights.

In the main, however, treating animals as objects is a considerable disadvantage. Although the law places some restrictions on what humans can do to animals, it does not grant them legal rights or status. They are “objects,” not legal persons or “subjects.” They can be owned, used, sold and destroyed in ways similar to other objects.

They lack rights protecting their fundamental interests in the way that legislation and the European Convention protect human rights and fundamental freedoms. In particular, there is no absolute prohibition on torture and inhumane or degrading treatment or punishment. They cannot claim damages and other remedies through a litigation friend for harm inflicted on them.

A few countries do recognise that animals are not mere objects, but without giving them the status of legal persons. For example, Article 1 of the Polish Animal Protection Act 1997 provides that, “An animal, as a living being capable of suffering, is not a thing. Man owes him respect, protection, and care.”

Animal protection laws consist of laws prohibiting cruelty and “animal welfare laws” that not only prohibit cruelty but also impose obligations on owners and others to promote the well-being of animals.

A beautiful example of anti-cruelty legislation is the 1641 Massachusetts Body of Liberties, which provided that “No man shall exercise any Tirranny or Crueltie towards any bruite Creature which are usuallie kept for man’s use.”

In Britain, the Brambell Report of 1965 set out “Five Freedoms” designed to protect the interests of farm animals: (1) Freedom from hunger and thirst; (2) Freedom from discomfort; (3) Freedom from pain, injury or disease; (4) Freedom to express normal behaviour; and (5) Freedom from fear and distress.

Laudable as that was (it replicated Beveridge’s five human freedoms — freedom from Want, Idleness, Squalor, Disease and Ignorance), the fate of farmed animals and laboratory animals has worsened markedly since then.

In Britain, over one billion animals are killed for food annually, 70 per cent of which are kept in factory farms. There are around 800 US-style intensive mega-farms that can hold up to 125,000 broiler chickens, 82,000 laying hens, 2,500 pigs, 700 dairy cows or 1,000 beef cattle.

It is obvious that the physical, emotional and social needs of these animals cannot be satisfied by a capitalist system of production and exploitation in which they live and die as cogs in an industrial production line.

This industrialisation of farming also contributes significantly to global warming, changing the planet’s climate in catastrophic ways, and reduces the food available to feed a growing world population. The position of laboratory animals is no better. In Britain in 2019, 437,124 scientific procedures were performed on animals, of which 80,371 involved the infliction of moderate pain and 47,574 severe pain. We tolerate cruelties inflicted on other species that would outrage us if performed on members of our own species.

The anthropocentric argument that humans are superior to other animals and for that reason entitled to use them for their own ends is unsustainable. Many of the animals we inflict suffering upon have greater sentience and intellectual ability than a newborn human baby or a severely brain-damaged human adult. Jeremy Bentham made this point in his Introduction to the Principles of Morals and Legislation (1789): “A full-grown horse or dog is beyond comparison a more rational, as well as a more conversable animal, than an infant of a day, or a week, or even a month, old.” Nevertheless, we use the one and protect the other.

The famous philosopher Peter Singer refers to this as “speciesism.” His position is that if we consider it wrong to inflict a certain amount of pain on a human then we should consider it equally wrong to inflict an equal amount of pain on another animal. There is no moral justification for treating the same pain of other animals as less important than the felt by humans. In his view, a laboratory experiment cannot be justified unless the experiment is so important that the use of a profoundly brain-damaged human of equal intellect and sentience would also be justified.

The novelist Isaac Bashevis Singer put it more strongly in Enemies, A Love Story: “As often as Herman had witnessed the slaughter of animals and fish, he always had the same thought: in their behavior toward creatures, all men were Nazis.”

In The Descent of Man, Charles Darwin wrote that “the various emotions and faculties, such as love, memory, attention and curiosity, imitation, reason etc, of which man boasts, may be found in an incipient, or even sometimes in a well-developed condition, in the lower animals.”

The animals we intensively farm and experiment on experience pain and pleasure. As sentient beings, they can be happy and content or distressed. In the main, their shortened lives are lives of distress. We are the cause. If we are indeed superior moral beings, this requires us to identify a valid moral justification for such widespread cruelty.

Some traditional justifications are obviously spurious. The Book of Genesis says that God granted humans “dominion” over every creeping thing that creepeth upon the Earth. However, “dominion” is also translated as “rule,” “reign” and “stewardship,” and there is nothing in the Old Testament to suggest that humans were divinely authorised to be cruel or indifferent masters, rulers or stewards. This point was powerfully made by Pope Francis in his encyclical Laudato si’, in which he held that “the Bible has no place for a tyrannical anthropocentrism unconcerned for other creatures.”

The argument that most of the animals would not have had a life at all unless bred and kept for slaughter is disingenuous; it sidesteps the fact that as moral beings we could have chosen to provide suitable conditions and care, and assumes that a life of unchosen pain and misery has significant value. As the philosopher David Hume concluded in An Enquiry concerning the Principles of Morals, we are in fact “bound by the laws of humanity to give gentle usage to these creatures.”

The position that animals have nothing to lose by death because they lack the ability to anticipate and plan for the future is absurd. Even when killed painlessly, animals are deprived of future life and the opportunity for a longer, happier and more fulfilling life.

It is possible to put forward a reasoned argument in favour of eating animals, based on the proposition that we are natural predators and part of a food chain, and it is our biological nature to kill and eat other species of animal. This argument is undermined to a degree by the fact that we are omnivores, not carnivores, and nowadays rarely need to kill to survive. Because it is not necessary to kill to live, it could be said the moral choice is to abstain from doing so.

Nevertheless, the “conscientious omnivore” position — eating only animals and animal products produced humanely — is certainly arguable.

The distinguished academics Fasel and Butler have identified three main approaches to animal welfare. The classical welfare approach, taken in the Brambell Report, is that animals should be treated humanely and their suffering minimised but they may nevertheless be owned, used and killed because human interests are morally weightier. The abolitionist approach states that using and killing animals cannot reasonably be characterised as necessary if other sources of nutrition are readily available.

A paradigm shift is required. Humans should stop regarding animals as ownable things that they can use for their own ends with only a few limitations. Abolitionism also demands an end to having pets, an objective that is likely to be viewed with horror by cats and dogs contemplating an idle life on a warm sofa.

The third approach, New Welfarism, is based on the belief that not all human interests are morally weightier than those of animals. Even the painless use and killing of animals for certain purposes must be limited, by giving animals rights where possible. This, at least for now, is probably the way forward.

What principles can we draw that can form the basis of the government’s animal welfare strategy and future legislation?

Firstly, all animals have an interest in continued existence and in not suffering. Therefore, their lives have moral value.

Secondly, pain inflicted on humans and animals is of equal importance if the pain is equally intense. As Bentham put it, “The question is not, Can they reason? nor, Can they talk? but, Can they suffer?”

Thirdly, it is morally necessary to refuse to buy or eat the flesh or other products of birds and mammals who have been reared in factory farm conditions. The industrial capitalist model, in which output and profit are worth more than minimising animal suffering or maximising animal welfare, is an anathema. If we eat meat on the ground that we are omnivores, the animals must be cared for in a manner than satisfies their physical, emotional, and social needs; the RSPCA Assured standard must be mandatory.

Fourthly, it is necessary to outlaw laboratory experiments on animals. Peter Singer’s favoured utilitarian approach — choose the action that produces the greatest good for the greatest number — necessarily leads us into a dark moral corner. Thus, he writes, “I do not think that it is always wrong to experiment on profoundly brain-damaged humans or on animals in ways that harm them. If it really were possible to prevent harm to many by an experiment that involves inflicting a similar harm on just one, and there was no other way the harm to many could be prevented, it would be right to conduct the experiment.”

A moral rule-based (“deontological”) approach, which forbids certain acts in any circumstance, is always preferable. While killing an animal for food may be justifiable on “conscientious omnivore” grounds, there is no justification for painful experiments on humans and other animals who are unable to consent to the infliction of pain or harm.

It cannot be justified on the basis of our evolution as omnivorous predators. If that leads to fewer or slower medical advances, so be it. We can consent ourselves to being experimented upon if we are that concerned, but if we are unwilling to do this let us not be cowards and bullies and put forward other animals to suffer in our place.

Fifthly, we need to begin to unpick our laws and move to a position whereby animals are not objects but have legal status and rights, and are viewed as persons with intrinsic moral value. They could possess a variety of legal rights, including rights to be cared for, to have a place to live, not to be used for certain purposes or be harmed, and even a right to own property themselves. As Bentham observed, “The day may come when the rest of the animal creation may acquire those rights which never could have been withholden from them but by the hand of tyranny.”

A Royal Commission is the way forward here, given the complex web of existing laws.

There is precedent for this. In 2016, an Argentinian court considered the case of Cecilia, a chimpanzee kept at the local zoo who had been living in solitude since her two companions died. The judge granted the habeas corpus petition filed by the Argentine Association of Animal Rights, declaring that Cecilia was a “non-human legal person,” and ordering her transfer to a great ape sanctuary in Brazil.

Reform will advance not just animal welfare but our personal welfare. William Blake in Augeries of Innocence beautifully expressed the connection between an unfeeling attitude to animals and an unfeeling society:

A dog starv’d at his master’s gate
Predicts the ruin of the state.
A horse misus’d upon the road
Calls to Heaven for human blood.
Each outcry of the hunted hare
A fibre from the brain does tear.

The question today is no longer “Can they feel?” but “Can we feel?”

Anselm Eldergill was a judge in the Court of Protection until 2024. He is a solicitor, an honorary professor of law and an academic associate at Doughty Street Chambers.