AN ANIMALS' DEFENDER:
A Watchdog for the Underdog
'Property includes money and all other property, real or personal...
Wild creatures, tamed or untamed, shall be regarded as property...' Theft Act
1968 Section 4.
It is and always has been their lot to be exploited.
They have been abused, burnt at the stake, hanged at the gallows, tried and
executed as criminals, vivisected and used as weapons of war. They have been
subjected to every cruelty imaginable for reasons of economics, hedonism, politics,
science, sport and war. They have been and remain the perennial victims enchained
in bondage by law. Their rights extend to the right to be killed at will and
eaten too. As to who and why the reason is the same : animals because they are
animals.
 Although
it has not always been so, most human beings now have 'rights' because they
are human beings. These rights have not been limited to humans who are rational
and sentient. They apply to all within the category of homo sapien - but that
is the limit. We have chosen to deliberately deny such rights to animals. Our
choice rests on two assumptions both borne of self-interest : we have a moral
claim because of our superiority and animals are not deserving of moral rights.
Animals are legally classified as a commodity or chattel. So there is little
or no difference between a plastic duck, a porcelain hen or a wooden rocking
horse and a real one. This property-concept led to the introduction of the Ill-Treatment
of Cattle Act 1822 which was the first English statute prohibiting cruelty to
animals. However it became law despite opposition precisely because its primary
aim and purpose was to protect the rights of the owners. That prejudice is prevalent
throughout English law.
The highest English court, the House of Lords, has endorsed that precise position:
'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 he 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 Aristotelian spirit places each and every animal below anyone within the
category of homo sapien. But is there really only 'one single issue'? Is it
not pure prejudice to consider without question that that which you have control
over is thereby morally and legally inferior?
Lest it be thought his words were limited to the issue of vivisection, the
judge made his position plain, boldly stating : 'however it is looked at, the
life and happiness of human beings must he preferred to that of animals'. He
further speculated that the law accurately reflected the indifference of the
public : 'if that (vivisection) involves some measure of pain at times to some
animals ... they feel it is due to a regrettable necessity. Similarly a man
-who has beefsteak for dinner if he thinks at all about the slaughter of the
beast reflects that it is inevitable in the present constitution of society.'
Really this is legal speciesism writ large.
 Animals
are exploited because in law their status actually allows for it. The misnamed
Protection of Animals Act 1911 defines an animal as one who, 'is tame or has
been sufficiently tamed to serve some purpose for man'. Thus, the animal is
not deemed to count in its own right. Its status is dependent on its use to
us.
In the Hull Prison Riot Case Counsel for the Defendant submitted that a society
was to be judged by how it treated its lowest members. The Judges in the Court
of Appeal agreed. Although they were prisoners they still had rights : 'the
courts are in general the ultimate custodians for the rights and liberties of
the subject whatever his status and however attenuated those rights and liberties
may be as a result of some punitive or other process' [per Lord Justice Shaw
in Rv Hull Prison Board of Visitors ex parte St Germain[1979]]. The principle
is right. The premise is wrong. For animals not prisoners are the lowest members
of our society. Moreover they have committed no crime save for simply being
born. How a society treats its weakest members reflects its own strength. Are
the weak to perish or be protected by the strong? It is a question to be resolved
by compassion and conscience and given wings by law.
Significantly, given their inability to resist injustice, they have no one
to speak for them against humans. For them to have a future in our society they
need animal rights with a human face. Essentially they need what we have : a
legal representative, an Ombudsman, or preferably an Ombudswoman!
In the early 19th century the citizens of Sweden were concerned that the Chancellor
of Justice - who should have looked after their interests - 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 he protected by a guardian appointed by Parliament. His
powers gave the ordinary people vicarious strength and 'guaranteed their civil
rights'. Before he was appointed the citizens suffered in the only way open
to the helpless, in silence. Thus his primary purpose was to be the power of
and for the powerless.
Since then many other countries have followed suit. On 4 August 1966 the English
Parliamentary Commissioner for Administration, popularly known as the 'Ombudsman',
was appointed. His extensive investigative 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 change the position by legislation. The vital
characteristic of the Ombudsman is his independence. That makes him a powerful
spokesman for the weak in their dealings with the strong. Effectively he is
no less than a Citizen's Defender.
 Animals
are in a worse position and so even more in need of a legal 'Defender'. In a
democracy there are bulwarks which guarantee people's freedom. In a dictatorship
people have the final means of resolution by revolution. In both people can
communicate the misery of their own state and act to change it. So by vote and
voice they can persuade or force a Government to change. Conversely, be it a
democracy of a dictatorship, animals are always equally unequal and denied the
means of dissent. All they can do is await their fate at the gate of the abattoir
and occasionally kick against the pricks.
Whilst law normally moves slowly to reflect the changing moods and mores of
society, it can also lead the way. In 1965 the Race Relations Act and allied
Board was introduced. The Act, which has been amended over the years to give
greater protection, aided minority groups who were subject to prejudice because
of their colour or caste or creed. Whilst racism still exists, the change in
law has changed views and attitudes. Prior to 1965 it was not uncommon for handwritten
notices advertising accommodation to proudly display the landlord's naked hatred
: 'no coloureds, no Irish, no dogs'.
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 great strides in curbing many forms of discrimination which are suffered
mainly by women. Even sexual harassment once so common though not really recognised,
can be remedied by law. The House of Lords has recently taken a lead from such
decisions and consolidated the position of women by abolishing the rule that
a husband could not rape his wife. In Rv P(1991) 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'. That case
and their Lordships rejection of the perception of women as chattels - (derived
from the word 'cattle') - has changed the role of women in law forever.
On 14 October 1991 the Children's Act was introduced to give children new legal
rights. Lord Mackay, the Lord Chancellor, called it 'the most comprehensive
and far-reaching reform of child law which has come before Parliament in living
memory'. The Act was necessary because children are vulnerable and need protection
from other humans who could or would harm them.
 Following
a summer of riots and unrest in prisons throughout the United Kingdom in 1990
Lord Justice Woolf reported on the problem and the solution. He recommended
a Prisons' Ombudsman so the 'Prison Service pays more than lip service to its
responsibilities to treat them with humanity'. On 19 April 1994 the appointment
was announced when the Home Secretary claimed 'I welcome this as a significant
step in further safeguarding the fair and just treatment of prisoners'. This
was not a purely political act.
Blacks and women and children and prisoners are all potential victims whose
position has changed for the better. The law has acknowledged and lessened their
vulnerability by granting them extra rights. Animals by their very nature are
more vulnerable and weaker than all of these : they are the underdog's underdog.
Consequently as all animals need a special protection from all humans they especially
need a legal voice.
So a Minister of Justice for Animals should be appointed to :
1. Promote and protect the rights and interests of animals;
2. Initiate court proceedings on their behalf when necessary;
3. Represent them in court where any action affects their future;
4. Liaise with the Law Commission to introduce a new Act or Bill of Rights with
the paramount principle of protecting the life and well being of any animal.
Although at first glance these reforms look revolutionary, in truth they are
not. The only unusual aspect is that they relate to animals. These reforms are
essential if animals are to have a legal personality. For without that there
can be no progress towards jus animalium : justice for animals. Philosophical
discussions about rights will fade into verbal smokerings unless and until animals
have a defined legal status. For that alone guarantees the concept of natural
justice that rights run with the life itself.
 Animal
welfare is concerned with altruism whilst rights are concerned with justice.
It is never enough to simply feel empathy or sympathy for the victim. Rights
only have real meaning if they are recognised and enshrined in law. Lord Scarman,
one of the greatest Judges of this century, knows that all too well. He has
long been a champion of Society's pariahs. On October 10 1991 he was advocating
the cause and value of a Bill of Rights for Bangladeshis in England.
Lord Scarman said the Bill would give them 'the protection of an enforceable
law, itself protected by the constitution... their minority status would not
expose them to discrimination to their disadvantage in the countless ways in
which they currently suffer'. Animals need legal rights for precisely the same
reason. The sword and shield of law would change their fate and fortune and
future forever.
An Ombudswoman would be able to advance the case for animal rights rather than
animal welfare. For perversely animal welfare can be retrogressive and inimical
to the long-term interests of animals. The ever-present danger is in concentrating
on the size of cages and humane stunning and the reason for experiments you
can forget the victim's fate.
Animal welfare may lead to killing with kindness but the victim
is still dead. Making a slave more comfortable does nothing to end slavery.
The past and present and likely future is that we continue to be capriciously
cruel to those in our custody and control. We deny justice to those hamstrung
by the lack of a human tongue. Perforce an Animals' Defender would be concerned
with animal liberation. For liberation is the only future for animals and to
that end we are their only enemy.
© 2000 N C Sweeney
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