Animal sentience after Brexit

Red Sea Octopus
Politicians can’t agree on which animals are sentient enough to be protected after Brexit. A more philosophical approach might help.


The looming threat of a no-deal Brexit is a major concern for the wellbeing of animals. 

Of headline-grabbing concern is the threat that livestock may be slaughtered en masse if farmers fall foul of tariffs and lose access to the European market. If this happens, it will be a tragedy for many livestock farmers which raises questions about the future and confirms that the market has always come before animal welfare.

Beyond economics, however, Brexit has also forced us to consider some far more philosophical questions: Are animals sentient? Which ones? And is that the grounds on which they should be entitled to protection? Whilst the political debate has always focussed on what science has to tell us, it may be time to look again at the philosophy. 

Relating to animals

Legal relationships between humans and animals in the UK currently hinge upon two pieces of legislation. The first is the 2006 Animal Welfare Act, which creates a legal relationship between individuals and animals. The second is Article 13 of the Treaty of Lisbon, which creates a legal relationship between the state and animals.

These documents do separate work. Crucially, the Animal Welfare Act exists to protect against the mistreatment of animals by their carers or owners, whilst Article 13 constrains policy makers to consider animal sentience in their decisions. 

Without Article 13 or something similar, the well-being of animals will not need to be considered when laws are being made after Brexit. 

These documents are narrow, concerned with animals which are under human control. On the question of what an animal might be they are unscientific and almost surreal.

The Animal Welfare Act opens with a definition of an animal as “a vertebrate other than man”. While it does make a provision that “the appropriate national authority may […] extend the definition of ‘animal’ so as to include invertebrates”, this “may only be exercised if the appropriate national authority is satisfied, on the basis of scientific evidence, that animals of the kind concerned are capable of experiencing pain or suffering”.  

Political uncertainty

The interpretation of suffering has been the starting point for the debate on the human responsibility to animals at least since Bentham, and it continues to inform the more abstract dimensions of this debate today.

In the view of politicians, there are many animals for which there is no scientific evidence that they suffer. For anyone who has ever seen a snail recoil and hide, this makes very little sense. However, with factory-farmed insect protein looming, it could become a matter of vested interest.

Michael Gove claimed whilst Environment Secretary in 2017 that the UK would continue to recognise animal sentience outside of the European Union. A draft bill was introduced that year to explore bringing such a recognition into law. After a consultation which closed in 2018, it concluded that further refinement is necessary for a proper definition of sentience, as the draft rests on the ordinary meaning found in the Oxford English Dictionary, where to be sentient is only to be “able to perceive or feel things”.

 As yet, this issue has not been resolved. Now, with a recent change of prime minister, a new cabinet, and the potential of a general election soon to come, it seems increasingly possible that we may find ourselves outside of the European Union without any such legal recognition in place. 

By mixing up “scientific evidence” on the one hand and common-sense ordinary meaning on the other, the debate on sentience has reached a rather absurd point. At present, the critical position put forward by Kerry McCarthy MP in her ten-minute bill would extend sentience to “all vertebrates, cephalopods and decapods” but still exclude many others.

Against science?

Why should it be that, for animals lacking a spine, their welcome into thinking society is contingent instead on having a specific number of feet, or an unspecified number of feet placed in proximity to their heads? McCarthy intends for the list of included animals to be expanded in the future, but again, the mechanism by which this happens will depend on scientific evidence.

So what’s wrong with scientific evidence? And why might we need to pay closer attention to the philosophical work which has been in dialogue with the science?

As was brought up in a debate in parliament last month, a rising number of animal experiments are being carried out. There can be persuasive arguments for animal testing but, outside of the European Union, Britain may well find itself duplicating experiments already carried out by EU scientists, doubling the harm caused to animals.

Article 13 recognises that animal sentience is a matter which must be considered in research; without Article 13, we find ourselves needing to conduct research simply in order to recognise sentience at all.

For anyone who is willing to believe that animals are sentient, it is rather frustrating that the only way to prove it scientifically is to cause them pain in laboratory conditions. And, although this is not the case for all researchers, there may well be scientists who would feel emboldened without constraints such as Article 13.

Fallible definition 

The insistence upon a scientific definition of sentience is inherently fallible, because it’s built on the same sandy foundation which has caused problems since the start.

Philosophers, sociologists and anthropologists have been working to show how science often tells us more about the people who commission, carry out, and make use of the research than it does about the object of research itself. One important strand of such work is to help us to understand how our scientific thinking is anthropocentric – using humans as the measure against which everything else is compared.

The question of animal sentience and welfare is a case in point. The Animal Welfare Act is deeply anthropocentric, as it is concerned with animals which are used by humans, and, more to the point, animals which resemble humans by having a spine. 

Even if there is finally found to be a class of animal which does not appear to have sentience, this will, once again, have a far greater implication for our definition of sentience than it does for the animals under experiment. 

As has been shown by philosophers of biology such as Peter Godfrey-Smith, the octopus – a member of the cephalopod class – has a mind which is totally unlike that of a human, such that considering octopus life can help us to expand and refine our understanding of minds. It’s besides the point for us to ordain which animals are sentient or not when the world can be experienced in ways which are so unlike our own.

Embracing doubt

The UK government’s persistent scepticism about invertebrate sentience may offer another approach to the question of how to treat animals.

As it stands, the debate is at a point where an increasing variety of animals are set to be recognised, and it is clearly anticipated that the science will continue to find more sentience over time. If we turn from science to philosophy, we can see how this expectation can be made the basis for how we treat animals.

Whilst at the moment we consider a lack of evidence for sentience a reason to exclude an animal from consideration, the environmental philosopher Kai Chan argues for the exact opposite. For Chan, we’ll always be uncertain, so “we cannot justify excluding any entity”.

Chan argues strongly that recognising sentience in other life-forms involves reaching beyond evidence becauseit is never certain. And, he says, “to assume no sentience in the face of some (inconclusive) evidence is to fail to imagine”.

Indeed, the animal studies theorist Anat Pick goes further, arguing that “the neural or mental fact of sentience is hardly the point”. Pick focusses on the term “vulnerability”, which she says “shifts the terms of the debate”. Vulnerability is something which is at once shared by all living (and therefore mortal) things, and peculiar to animals because they so often have violence inflicted upon them by humans.

Moving forward

Chan and Pick’s arguments come together in something which Chan calls the “Golden Rule”, and Pick identifies with “feminist care ethics”. In Chan’s phrase, this is quite simply that “we should ‘do unto others as we would have them do unto us’”. 

We can never say with absolute certainty that another living thing is sentient. Taking a philosophical stance, we can embrace that uncertainty, and extend our empathy instead.

In order to ensure animal welfare, we must make the mortality we share with non-human life our starting point, and ensure our laws don’t only protect animals which look and act like us, or which we keep as pets or on traditional farms. And, as Brexit drags on, we must keep this debate alive.

This Author

Alex McDonald is a writer, film-maker and curator, interested in social and cultural relations between human and non-human life. 

Image: Prilfish, Flickr. 

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