The law of the matter, viewed in relation to its ethics
My Lord President, my lords, ladies and gentlemen, 'the matter' referred to in the title of this 49th Stephen Paget Memorial Lecture is, of course, the use of living animals in medical, biological and scientific research, and in industry for the validation and production of drugs, vaccines and pharmaceuticals; in pursuance of which they are held in captivity, sometimes - but nowadays much less often than was at one time the case -made to suffer, or appear to suffer, pain or distress, and in a much greater number of cases destroyed without any indication of their having been made to suffer at all.
For well over a century this matter has been passionately controverted. There is a voluminous literature dealing with every aspect of it. One would hardly suppose that there can be anything new to be said upon it; and least of all with regard to its ethics, for it is a supposed moral wrongness in this usage of animals that has most consistently agitated the minds of thoughtful and compassionate people.
Those who condemn the activity without qualification base themselves on a moral principle - substantially of their own coining, for there is little or nothing in the way of classical or theological authority to support it - that man shall not, for purposes of his own, inflict suffering or harm on his fellow-creatures, to whom (it is said) he owes a consideration approximating to that which he thinks it right to accord to other human beings. That view of the matter is entitled absolutely to the respect of those who do not share it, or who accept only a modified version of it. But it can still be rejected, consistently with being opposed, as every decent-thinking person must be opposed, to the wanton or avoidable infliction of suffering on animals of any species, whether protected by the law or not.
Not everyone has any particular feeling for animals, or for animals of any particular species. There are wide differences in personal attitude, and in degrees of scientific or natural curiosity. I myself am strongly in favour of animals in their natural habitat, meaning the wild state, so far as they are not a positive nuisance; about them in the domestic sphere I am lukewarm. Others empathise more easily than I do with chimpanzees and gorillas. Actual communication with animals seems to present difficulties, except to the most advanced students. There is no law requiring one to be a zoophile, any more than there is a law against misanthropy. Yet anyone who would be unkind to animals, casually and to no purpose, let alone deliberately and sadistically unkind for nothing but the satisfaction of it, must be, for most of us, an unpleasant person to know or associate with. Whether or not he is prosecutable under the Protection of Animals Act 1911, we are at liberty to regard his company as unwelcome and to urge him to more commendable behaviour.
And it is, of course, this commonly-felt dislike both of the offence and of the offender which is at the heart of the whole law on the subject. In a society possessed of free institutions and committed to the preservation of liberty and order, law evolves from a rational assessment of the way in which people think and behave, and of their attitudes towards each other. It is those attitudes which sustain the law when it is made, secure effectiveness in its enforcement and public trust for those who administer it, and legitimise the imposition of penalties on offenders. When public attitudes change, the law changes also. But it is unlikely to change immediately, because the change of attitude may be long in coming and slow to be noticed; the forces of conservatism are invariably more powerful in the short term than those of reform; and it may not become clear for some time exactly what changes have come about, and how new law can be framed to accommodate them. Law cannot exist effectively for longer than it is supported by public opinion; and it is always vulnerable to the determination of any considerable number of people to defy it. When enough people do that, it soon ceases to be of any use.
A well-made law is one whose principle either has been effectively adopted by the generality of people beforehand, so that the legislator is merely giving formal expression to an already existent public will; or else its principle has been in dispute - perhaps violent dispute - and the governors of the state present it for public acceptance as one which is agreeable to the majority, yet not so repugnant to the minority that they will continue after the new law's enactment to oppose and undermine it. It is the primary business of the lawgiver to promote and encourage the reconciliation of conflicting opinions, to an effect most favourable to the functioning of an ordered state and the efficient conduct of its affairs. Very little law, arid all of it bad, derives from the adoption of rigidly partisan views, though they may be the views of the majority, which are utterly objectionable to a significant and articulate minority. You cannot ram a law down people's throats when it chokes them. Imposed solutions are always a last resort, and seldom workable in practice. If the matter continues to be violently controverted after the law is made, that is in itself an indication of its being the wrong law - unless it be a sign that men have become incapable of reaching rational agreement, in which case we are in a very bad way indeed, this being the primary symptom of a dissolving social order.
The challenge to animal experimentation purports, as I have said, to be made on grounds of morality. But the sense of moral righteousness is not all on one side. The very existence of this Society is owed to men - and particularly to one man. Stephen Paget, whose distinctive qualities and superior talents we honour this evening — who must have felt that here was an issue on which a stand must be made. And that stand, although comprising an obviously utilitarian element, must in essence have been a moral one. They thought, and die successors to their tradition continue to think, that the limited use of animals in the laboratory, subject to careful oversight against- any treatment of them which should appear inhumane, is so productive of good for mankind that to abstain must be immeasurably less ethical than to proceed.
I realise, too late, that it was injudicious to include in the title of this lecture any reference to ethics, it being a subject on which I am not well-informed. It is one for professional philosophers and theologians, not lawyers; and there is very little in it which has anything to say to the ordinary man looking for some guide, other than his own conscience, as to what he should do. He may consult his friends, or his priest, or the relevant ethical committee having jurisdiction in respect of his particular problem. But ultimately, it is to be hoped, he makes free use of his own judgement, relying on these others only to direct him to the considerations which must be present to his mind when he makes it up for himself. But I did consult certain of the great moral philosophers, and was confirmed in my suspicion chat they have nothing to say that might be of use in this evening's discussion. What they say about the elements of a moral action seems to me so bizarre, and so gloriously deficient in the most basic ingredients of horse sense, that I felt like the friend of Dr Johnson, who said that he too had tried to be a philosopher, but cheerfulness would keep breaking in.
Here, for example, is Kant on the 'categorical imperative', which is his name for that description of conduct which is absolutely dictated, irrespective of intention or consequence. 'Act', he says 'only on the maxim through which you can at the same time will that it should become a universal law.' He gives as an example that it is wrong to borrow money, because if everyone did so there would be no money to borrow. Applied by analogy, the rule would seem to impose a moral prohibition on doing almost anything, from injecting mice with a virus, to playing the trombone in a public place. As a guide to what a man should do, it is very little use. And there is something splendidly Teutonic about a rule that everyone should act in the same way as everyone else.
James Mill, a leading light of the utilitarian school and ally of Jeremy Bentham, read some of the works of Kant and remarked, rather acidulously, 'I see well enough what poor Kant would be at'. The utilitarians held that an action was good or bad, moral or immoral, according to whether or not it advanced happiness; and I think they must have had in mind the happiness only of humans, not that of animals, which the present-day zoophile would have us believe are the same as ourselves in most material respects. The maximisation of happiness was to be the determinant in any situation which appeared to raise moral issues; and they devised a peculiar formula called 'the felicific calculus', which enabled the moral worth of an action to be determined by reference to a system of points - so much for the happiness that should result from it (the happiness of the actor himself being, of course, brought into the calculation), and so much off for the unhappiness. I do not think, however, that these grave matters can be resolved by the techniques applicable to a rubber of bridge. More importantly, the system seems to affront the curiously persistent strain of puritanism which afflicts our national character, the belief that to abstain from being happy is halfway to being holy, and that if an activity is enjoyable it is unlikely to be also virtuous.
The vice of all these formulations, or so it seems to me, is that they imply a judgement by one person on the actual or hypothetical conduct of another, unsupported by anything much more than the subjective, and not necessarily well-ordered, opinions of the person making it. The assertion that an action by someone else is immoral is worthless except as a statement of what the speaker would not do himself, and would prefer that others should not do either. The declension goes something like this: 'I do not choose to do it myself; you will kindly oblige me by not doing it; he, she or it is immoral.' It is a kind of random authoritarianism. The word 'immoral' becomes a mere term of abuse, to be applied not only to the conduct of people, but to people themselves and their opinions, and finally to things and institutions. You can apply it to almost anything you fancy - or rather, don't fancy - a book, a picture, a state of affairs, a political or economic system, a limited company and its board of directors, and of course fox-hunting.
If one describes someone else's conduct as morally objectionable independently of motive and consequence, and it is not a mere expression of personal attitude, the charge can only be that the action is contrary to some law, commonly known as the moral law, in the same way as to drive a car without a licence is contrary to the Road Traffic Act. It must by hypothesis be a law of general application, binding on all men, in all ages and in all countries, and it would be reasonable to expect that there should long since have been made available some method of finding out what it says, in the same way as one looks up the regulations of the Department of Transport. Yet no one has ever succeeded in demonstrating the existence of this law, or even the probability of its existence: and the identity of the lawgiver remains a matter of uncertainty and doubt The law, if there is one, must be amendable: for what seems grossly immoral to one generation often appears quite harmless, even admirable to a later one. And it does not seem to apply in quite the same way to everyone; for apparently different modes of conduct are acceptable from Europeans, Hindus, Polynesians and Moslems.
The lawgiver can only be supernatural or, if you care to use the term, divine; and if you happen to believe in this kind of supernatural immanence, or you preserve, as I do, a kind of respectful agnosticism, where are you in relation to the moral law? Assuming God's existence, and also His omnipotence including full legislative capacity, He must be able to make laws binding on all the beings of His creation. But the question whether He has chosen to exercise the power, and for what cases and circumstances, and with what mysterious purpose, must remain a matter of speculation or personal conviction. The means of finding out what provision He has made, whether with respect to animal experimentation or anything else, do not exist, except insofar as you rely on one of three things: the light of your own reason, and your personal conception of God's nature and purposes: divine revelation (and, if you claim that, the chances are that no one will believe you); or the say-so of priests and theologians — and, I suppose, zoophiles - claiming or appearing to be more amply instructed and informed than yourself. But whatever your understanding of the moral law, I have to say — with regret - that it is at all times possible, even likely, that you are mistaken; and the margin of error is so wide that you are in no position at all to demand that all others shall observe the same standards of behaviour as you have set for yourself, or even concede that your standards are particularly admirable. The morality or immorality of an action taken or intended by someone else is a matter of a priori assertion, beyond the possibility of proof or even, except in purely academic terms, of argument.
My conclusion is that there are no moral absolutes in this affair, other than those which an individual may formulate for his own conduct, without application to that of anyone else. There is nothing new or remarkable about this doctrine, and I claim no patent rights in respect of it. Denying the objective existence of any moral law, and assigning absolute supremacy to the individual conscience, it has, I believe, become quite respectable among modern philosophers, although there was a time when an exponent of it would have been excommunicated by Rome and drawn at least dirty looks from Canterbury. But if not new, the doctrine is worth re-stating; in the present context, since it provides part of the substructure of all law-making.
Law, as I said earlier, is made on the basis of rational suppositions concerning man's attitudes and behaviour. It informs people of certain things which they are requested to do, and of other things which they are requested not to do; and the request is based on an already formed intention, common to all or most of them, that those things shall be done or, as the case may be, not done. It is very little concerned with what people ought to do, or refrain from doing, as a matter of external ethical prescription. And there are certain things which you cannot make a man do, either by passing laws at him, or by hiring some pious know-all to lecture him, with or without threats of hell-fire. One of the things you cannot make him do is behave - in your terms — well, when it is his settled intention to behave - in your terms - badly. Another impossibility is that of making him act on the supposition that a certain kind of behaviour is bad, when he is obstinately resolved to go on thinking it is good. We may also note how comparatively rare it is for a person of character and quality to be moved by mere argument or assertion to modify or abandon his profoundest convictions. To attempt to convert a Fellow of the Royal Society, or a Nobel prizewinner for physiology, into a radical zoophile must be a barren undertaking. If you cannot move him by argument, you are unlikely to do so by waving banners and jumping up and down at him. If as a last resort you try physical intimidation, he will simply telephone for the police. And finally it is no earthly use haranguing me, because it is only indirectly my concern, and no conduct of mine is in question.
InWestern Europe, attitudes towards the maltreatment of animals have changed over the last century and a half. The law against abusing them is, in this country, of recent origin; and so far as I have been able to ascertain, it is more recent still on the Continent. I cannot trace anyWestminsterstatute earlier than 1822, and that was directed to the protection of cattle: as economic assets, and beasts agreeable and useful to man, it was in the public interest that they should be considerately treated. In the 1830s the ancient pastimes of cock-fighting and bear-baiting were made illegal, at first in theLondonarea and shortly after in the country at large. This was less because the pastimes were cruel - although no doubt they were so - than because indulgence in them was associated with gambling and drunkenness, and the assembling together of vagabonds and disorderly persons. Only in 1900 was cruelty to wild animals made unlawful; and it was not until 1911, when the earlier Acts were repealed and consolidated into a general law for the protection of domestic and captive animals, that it became an offence to cause them unnecessary suffering. The Act of 1911, so far as it is possible to judge, has total public acceptance at the present day, and does not often have to be enforced, because deliberate and wanton cruelty to animals is contrary to the norms of public behaviour, and publicly reprobated to an extent which would have seemed eccentric when the first protective legislation was passed.
The campaigners against cruelty did not at one time take too much to heart the killing of any animal, so long as it was done humanely. There has, of course, always been prejudice against the killing of wild creatures for sport: but it is rooted less in sympathy for the pheasant and the fox than in social and political antagonisms and that strain of puritanism to which I earlier referred. But the animal protectionists have now been joined by new allies - the idolators of conservation. Whereas it was formerly thought objectionable that an animal should be made to suffer pain, now there are species — in growing numbers, because of human depredations - which because of their rarity must not be harmed at all. This too would have been an unfamiliar notion in the 19th century, when it was the practice of ornithologists to shoot rare birds for their collections, and the egg of the great auk - later to become extinct - was as valuable and prestigious a possession as a Ming vase. Now this protective attitude extends to almost any species which is not positively noxious, for no other reason than that it exists and therefore must be provided with facilities for survival. The idea that any species should cease to exist, or be diminished, because of some rapacious activity of man has come to seem intolerable. But this sentiment - I use the term in its favourable sense - is also a quite recent one, and derives from a newly developed wonder at the beauty and diversity of living creatures, their hitherto unsuspected usefulness and the marvellous ingenuity of their creation. It is much more that than any so-called reverence for life, an expression coined by certain moralists as a pretentious synonym for vague and generalised benevolence towards the living world. The desire to preserve animals because of their scarcity or charm has been extended - across a vast gap in the logic — into a prejudice against doing injury to any creature, however plentiful or unpleasant.
I would argue that the attitude of men towards animals is little more than a function or aspect of the relationships obtaining between themselves, of their regard for each other and of their current view of the world which they inhabit. We desire the preservation of a species, and its protection from harm or exploitation, as soon as we see it threatened; because implementation of the threat, though posed by man himself, would do injury to our environment and lasting damage lo the heritage which we leave to our descendants. To exterminate any species would be, in the estimation of people we should regard as right-thinking, an uncivilised act. To deal unrighteously with any creature, for no reasonable cause, is equally an uncivilised act, be it a whale or an earwig. It is an affront, in a range of magnitude from the appalling down to the trivial, to other men's sensibilities, and to the concept of good which is an essential ingredient of all civilisation, however faint and irresolute we may be in accepting its full logical import.
But at least in Western society, man is a pragmatist for much more of the time than he is a moralist. The law ofEngland, which dislikes cloudy abstractions more than does that of its continental neighbours, is instinct with the pragmatic spirit. Thus it has for some years been a rule of the law of trusts that a bequest for purposes tending to protect animals from cruelty, or to assure them humane treatment, qualifies for the privileges attached to a legal charity. The reason of the rule is that the discouragement of cruelty to animals tends to promote humane sentiments in mankind towards the animal world, and therefore involves moral benefit to the community. I have never myself been convinced of the merits of this rule, considering the number of cases in which testators leave all their money to the cats' home as a means of spiting their near relatives: many wills are charitable in law, although the very opposite in spirit. But it is a practical rule, since it recognises the spirit of kindliness towards animals that is to be found among people of all qualities, and the importance of giving it encouragement - not so much because the law cares for animals or affords them any rights as such, as because people who are unkind to animals are an offence to others and therefore difficult to live with; and to settle the terms on which people can live harmoniously together is one of law's most vital and intimate concerns.
In 1895, at a time when there was much anti-vivisectionist fury in the air, it was ruled in the High Court that societies for the suppression of vivisection were also legal charities. On the face of it this would seem to be a natural extension of the same principle. But fifty years later the decision was challenged right up to the House of Lords — not, be it noted, by those who were opposed in argument to the anti-vivisectionists, but by the Inland Revenue on the question of charities' immunity from income tax — and was there reversed. It had long been established that, in order to be legally charitable, the objects of a trust must be such as to benefit the community; and the Lords held that a campaign directed to the restriction of medical research could not in its nature satisfy that test.
Wanton unkindness to animals has in recent times come to seem coarse and unmannerly. Most of us would not practice or be associated with it ourselves, although not many of us are entirely consistent - least of all in matters relating to diet - or are so free of other preoccupations that we can devote much time to smelling out unkindness in others and campaigning to stop it. If not more moral than a century ago, we are certainly more fastidious, and more considerate in respect of the consequences and implications of our own behaviour. This trend is unlikely to be reversed, although it may not advance at quite the pace which the radical zoophiles would set for it.
The first Royal Commission on Vivisection, appointed in 1875, heard evidence of things being done - both here and in other countries -which a humane public opinion could not possibly be expected to tolerate. It is not that scientists and research workers were monsters, although it is permissible to surmise that one or two of them may have been. Dr Emanuel Klein made an especially unfavourable impression, with his bland account of experiments performed without anaesthetics in the very rooms in the Brown Institution where he lived and worked for the Privy Council. The Commissioners found that experiments were being carried out — if not on any great scale - by the wrong people, in undesirable places and unsuitable conditions: it appeared, for example, that there were cases in which students dissected live animals in their lodgings out of idle curiosity, or for a kind of degenerate amusement. For centuries living animals had been used in anatomical investigations; and there was nothing remarkable about putting them to corresponding use in the emergent science of physiology. The discovery of chloroform had revolutionised human surgery, and with it animal experimentation. Most witnesses testified that they were totally opposed to operations on live animals otherwise than under complete anaesthesia; but, reading this evidence, I admit that I found some of it not entirely candid or convincing. It is possible that some experimenters had been inclined to take short cuts with the anaesthetic, and to convince themselves too easily, in some cases, that it was effective in the elimination of pain. Moreover anaesthetics were crude and primitive compared with those of today. To be casually or incompetently chloroformed was a ghastly experience, as I know, having myself had that experience at the age of 8; and I knew a man who was blind from boyhood because of it. But the attitude of the medical and scientific community as a whole was responsible, if one leaves out of account a certain insensitiveness - not so much to the suffering of the animals, as to the feelings of horror and outrage which any description of laboratory procedures, crude as they then were, must have aroused in anyone to whom they were unfamiliar. That insensitiveness was certainly characteristic of those days. It is almost entirely uncharacteristic of ourselves a century later.
The establishment of the day has been accused of trying to stifle the reforms initiated by the Royal Commission, which were given effect in the Cruelty to Animals Act 1876. But I doubt if this charge is well-founded. The legislation passed quickly and easily, with only minor amendments proposed by them. The Commission's report was in any case a conservative one, and the scientists had no particular reason to resist its proposals. Already in 1871 the British Association had proposed reforms which were not greatly dissimilar, and these had been endorsed by a galaxy of eminent men, including Darwin and Huxley, whose authority in these matters was almost papal. Far worse things were being done on the Continent, and especially inFrance: some dreadful experiments performed -before audiences - in French universities and medical schools must have seemed even then to be useless and unscientific, as well as appallingly cruel. It would have been pleasing to Englishmen to have it officially confirmed that they were more humane, as well as being better scientists, than the foreigner. The Commission's central conclusion, that animal experiments should be state-regulated by means of a system of licensing, and be performed only in approved premises, was calculated to assuage public anxiety. But the idea of prohibiting them altogether by law had been dismissed, and the scientists had every reason to expect that, subject to the removal of obvious abuses, they would be able to carry on much as before.
That expectation seems to have been justified by the experience of the next 30 years; for in 1912 the second Royal Commission, so far from hearing that the scientists had been hampered by the operation of the 1876 Act, reported complaints that vivisection was proceeding virtually unhindered. In 1882 the Home Secretary had taken to receiving advice on the administration of the Act from the Association for the Advancement of Medicine by Research, which I suppose must have been the predecessor, or one of the predecessors, of this Society: and, not surprisingly, the antivivisectionists claimed that he had allowed himself to be nobbled by the hard men. Some of the experimentation carried out under licence was still of a horrendous character, and shocking to those who were of a mind to be shocked, although the use of anaesthesia was now by law mandatory in most cases, and the conditions of the Act against infliction of pain were applied and enforced. The campaign of the anti-vivisectionists had not been abated. It was carried on with the use of strident language and hyperbolic assertion, their charge being now, firstly, that anaesthetics were being misused, and were not always effective, and for particular experiments were not usable at all; and secondly, that the Home Department's administration of the Act was culpably lax. On both counts the case was rejected by the Commissioners; and when they came to examine the then almost academic question, whether in any circumstances animal experimentation was morally justifiable, the case against vivisection as such showed signs of collapsing. The Secretary of the National Anti-Vivisection Society said that, so long as experiments could be carried out painlessly, under complete anaesthesia and without the animal being allowed to recover, he was not only not opposed to them, but he actually welcomed the medical and scientific discoveries that might result.
It must therefore have been at about this time that there emerged what was, and remains, the central dilemma of the antivivisectionist position. The proposition that to do injury to animals for the utilitarian purposes of man is abominable and against conscience, and a violation of the laws which God (or someone) has prescribed to govern the relationships between the creatures walking the earth, can at least be understood. It is much more widely maintained now than it was a couple of generations ago; and this may be due in some degree to the empathy which, in our time, some Westerners have discovered for the religions and life-styles of the East. It accords, after all, with the beliefs of millions of Buddhists, and with their doctrine of loving-kindness for all living things. The proposition is neither ignoble nor lacking in internal logic. It runs with the perfectly reputable belief that to eat animal flesh, or to kill for sport, is in its nature impious. The suggestion that not even to evolve a cure for leukaemia in children, or rabies, or polio, or cancer, is it justifiable to cause the death or discomfort of a few rats and mice is an astounding one for most of us; but it is still difficult to fault on any ground of principle, other than that in all circumstances and for all purposes the interests of man are superior to those of animals — and that is a proposition which also goes too far. As Canon Dunstan said in his Paget Lecture last year, man's dominion over the animals is a limited one, and he cannot but exercise it with restraint.
Paradoxically, it is the less extreme case against animal experiments which makes the least sense. It is said, in effect, that to cause pain in animals is morally and aesthetically indefensible: that all experimentation causes pain; therefore all experimentation is wrong and should be prohibited. But once demonstrate that, so far from all experiments causing pain, most of them nowadays are performed painlessly; and that those who perform such procedures have every inclination and incentive to see that they are painless, as well as the technical means at their disposal for realising that intention and the sanctions of law to constrain them, the case falls to the ground. Those who are ready to accept the painless killing of an animal for some utilitarian purposes - those, for example, who ate bacon for breakfast this morning - cannot logically object to anything done to an animal for a not obviously indecent purpose, which is either done painlessly without anaesthesia, or is done under complete anaesthesia indistinguishable from a painless death. The only case left to objectors in this category is that these things cannot be demonstrated, and are not in fact true.
Such, then, were the circumstances in which a comprehensive law first came to be enacted; and such was the state of the argument 36 years later, when the experimenters of the 1870s would have been mostly in their graves. Since then, new men and new ideas have taken over. The laboratories of the 1980s are as far removed from those of a century ago as the microchip is from the steam engine. Not only has the whole technology of medical and biological research undergone a revolution, along with every other kind of technology; the personal attitudes of the people engaged in it have suffered no less a change than those of the rest of us. There is no reason to suppose that, because a man is a scientist or a laboratory worker, he is more insensitive to animal suffering than is the common-or-garden dog-lover indeed it is just as likely that the opposite is the case. It would be wrong to assume that everything is in order all of the time. It very seldom is so in any field of human activity. Always there are things which might have been done differently, if someone else had been there to do them, or to oversee what was being done. But we should still repudiate the assertion that the same sort of horrors are still being perpetrated as were described to the Royal Commissions of 1875 1906. Dr Klein is not any longer operating in his quarters in the Brown Institution; nor are cats and dogs dissected, without anaesthetic, in the middle of the night, by demented scientists answerable to no rational or humane authority. In face of assertions that things are much as they were, we should be insistent that they are nothing of the kind.
Considering how little of the statute law of the late 19th century has survived into the 4th quarter of the 20th, it may be thought astonishing that the Act of 1876 still stands unamended, and is applied and administered from day to day much as it was in the months and years following its first enactment. There are reasons for this, and I will mention three of them.
Firstly, the subject being so emotive and apparently intractable, there are few political prizes to be gained from introducing new legislation for the consideration of Parliament. There have, of course, from time to time been Bills introduced by private members in both Houses, but never so far a Government Bill. In practice no legislation passes otherwise than with the positive support, or the benevolent acquiescence, of the Government of the day. No private member's Bill - at least until Lord Halsbury's of the present Session, to which I shall refer - has ever looked like passing, or had a chance of qualifying for Government approval; accordingly, no such Bill has been productive of anything but chatter and bewilderment.
The reason for Government inactivity in the matter is that there is not, and has not for a long time been, any obvious public abuse or mischief which is capable of being remedied by new legislation. The Government of the day is never short of excuses for putting off legislative action on a subject which it has no political or electoral interest in broaching: it simply declares that there is no space available in its programme of legislation for the corning Session. This particular subject is, in the language of professional politicians, a can of worms. To raise it at any time is liable to bring up questions which Ministers would be incapable of answering with confidence that the answers given would settle anything in the public mind. No Government will introduce a Bill into Parliament when uncertain of its ability to make it pass. The appearance of animal experimentation on any political or legislative agenda causes strong men in all parties to tremble for the possibility of the constituency cast-vote being cast against them at the next election. To present a Government-supported Bill and either see it thrown out, or be forced to abandon it under party or constituency pressure, is an embarrassment which Ministers will do almost anything to avoid.
A second reason for the Act's longevity is that, though well-intentioned, it was drafted with a good deal of ineptitude and without the possibility of anticipating the course of scientific and technological development in the next hundred years. In order to be workable at all - and it has to be made to work somehow, else the whole of medical and veterinary research might be brought to a halt - liberties have to be taken with its interpretation. But fortunately those liberties are taken by sensible men, conversant with practicality and anxious to ensure that the obviously right thing is done more often, and more consistently, than the obviously wrong one. In realising that aim, they are - it must be said - mainly successful. When anyone draws public attention to something which he thinks is obviously wrong (sometimes, but not always, having taken care to confirm the precise facts of the case), there follows an unholy row; and this the public tends rather to enjoy, because it is always more satisfying to be assured that the wrong thing is being done, than to believe that things are more or less in order. The row doubtless makes its impact on the minds of those responsible for administering the Act, and of those who conduct the business of scientific laboratories, but with what practical consequences, after the row has died down, it is impossible to say with certainty. The dogs bark, but the caravan moves on. The general public makes no extraordinary effort to inform itself dispassionately of the true facts, and is not much encouraged to do so by the Press, for which the invented facts are invariably more interesting. And the subject matter of the row, when there-is one, is never one that brings in question the terms of the Act itself, only the way in which it is administered and the judgement - or lack of it -of the people concerned.
A third reason why the Act has survived is as follows. Given that animal experiments may be performed under licence, and are not in themselves an abuse, provided that an eye is kept on them; and given that the abuses which the legislators of 1876 had it in mind to correct have long since ceased, and it is unthinkable that they should ever be renewed: and given that licences for experiments are issued subject to stringent conditions against the infliction of pain (which conditions are imposed administratively by the Home Office, and not by the Act - a special instance of its unsatisfactory drafting); given all those things, there is no immediate or obvious call to amend or replace the Act, except in so far as its details are productive of administrative inconvenience, or of public uncertainty or alarm. If in view of recent events it were public policy to restrict the range and number of licences, or even for that matter to extend them, that policy could be realised without amendment of the Act. Moreover, apart from defects in its drafting, and from any criticism that might be made of the way in which it is administered, the basic policy conclusion on which the Act is founded remains as it was a century ago, necessary, inevitable, rational and right. That conclusion, reached by both the Royal Commissions and endorsed by every impartial authority which has ever examined the question, down to and including the House of Lords Select Committee which considered Lord Halsbury's Bill earlier this year, is that there is no possibility of prohibiting altogether the use of living animals in medicine, science and industry; but it must continue under close public control.
Into the grounds of that conclusion, which are not exactly the same at the present day as they formerly were, it is unnecessary to enter on this occasion. It is sufficient to state that the social and economic pressures which dictate it are, beyond a certain point, irresistible; and that an overwhelming preponderance of people with full knowledge of the facts are persuaded that this is so. There are not enough people at the present time who hold the contrary opinion to make it prevail in public argument; nor does their opinion carry sufficient weight or authority to obtain the passage of legislation agreeable to their point of view. The views of the radical zoophiles, anti-speciesists and their allies will no doubt continue to be powerfully stated. It would not be surprising if, fifty years hence, they came to prevail altogether, considering the number of cases in which the heterodoxy of one generation has turned into the orthodoxy of a later one; and there is, as I have suggested, no inherent wrongness or vice in the proposition which the present minority maintains, only a certain muddle-headedness and a reluctance to recognise the facts of human life and behaviour as they are. But they delude themselves if they suppose that there is any possibility, in the foreseeable future, of their views being adopted, to the extent of effective political action, by any considerable number of people.
The necessary consequence of this is that the law will, for the time being, either under the Act of 1876 or a more sophisticated replacement for it, continue to permit the use of animals for research and other similar purposes. That which is not unlawful will continue to be done, for so long as there are people of a mind to do it, whether in the course of their professional activities; or out of a spirit of scientific enquiry; or because they are employed to do it by the state, for purposes which those in authority consider to be in the public interest; or simply because they think it is the right thing to do, and intelligent and dedicated men cannot - except in a totalitarian state — be prevented from doing that which is not unlawful and which they profoundly believe to be for the use and benefit of mankind.
But there is another fact of life: the public distaste for the idea of subjecting animals to procedures which turn them into mere instruments of research, or tools for the production of trumpery goods for the commercial market. The rational basis of such prejudices is not entirely secure; and they are to a great extent inconsistent with our practices and tastes in eating, agriculture, pest control and sport, and with our expectation of easy economics and unceasing improvement in medical care and prophylaxis. They tend to be exploited by the exponents of irrational doctrines, and harnessed to the forces of intolerance and unreason which present a permanent and growing threat to civilised values. But they are neither dishonourable nor unworthy of recognition. There is no possibility of over-riding or ignoring them. They cannot be argued away.
It is the task of the legislator to reconcile these conflicting views and assumptions; to hold the ring: and to ensure that none of them are set aside or held to be of no account in the argument. In those few countries whose law on the matter I have been able to investigate, it is-clear that they have come to substantially the same conclusion as we have. InWest Germany, inSweden, in Demark, and in most states of theU.S.A., it is laid down, firstly, that cruelty to animals, in the sense of causing them unnecessary suffering, is unlawful; and secondly, that the use of animals for specified purposes such as medical research and therapeutics is allowed under licensing systems of varying stringency. Try as one may, it is not possible to devise any alternative solution which steers rationally between allowing everything, and allowing nothing. It is the only method of providing an essential legitimacy for scientific work which is itself essential for human advance, and of enabling a balance to be struck between those procedures which by reference to their objects are necessary and desirable, and those which by reference to their character are neither necessary nor acceptable.
It is certain that any Act to replace that of 1S76 will provide for a licensing system not already dissimilar from the one presently in force; but it is to be hoped that some of the more muddled concepts of the old legislation will disappear. One such is that which requires the Home Office Certificate B, being an exemption from the Act's general requirement of anaesthesia in all experiments, to be issued in respect of procedures for which anaesthesia is inappropriate and unnecessary - for example, injections and painless skin applications. Lord Halsbury's Bill, of which some features at least can be expected to survive as official policy, contains a much better provision: every licence without exception is to be issued subject to compliance with the pain condition and the anaesthesia condition, neither of which can be relaxed save by certificate granted individually and only in exceptional circumstances. If the Bill were to pass in that or similar form, it should provide very great comfort indeed to those for whom the primary considerations are that animals put to laboratory use shall not be made to suffer pain, that while they remain alive they shall be provided with tolerable living conditions, and that their end, when it comes, shall be as decent and painless as that which we should wish for ourselves.
But the key clause of Lord Halsbury's Bill, to my mind, is clause 2, which provides for the appointment of a statutory committee to advise the Home Secretary on licensing policy, and generally on the administration of the Act. The need for such a committee has long been felt, and urged upon those in authority. Its constitution is required by the Bill to be bipartisan, in the sense that both sides of the argument must be represented on it - the scientists who use the animals, and the animal protectionists who recognise the permissibility of some such use, but wish to limit it to a rational minimum and to ensure that humane considerations prevail. But it is important to be clear what such a committee can and cannot do. It cannot take over from the Home Secretary and his officials the statutory function of scrutinising licence applications and ruling upon them individually. It cannot administer; it can only advise. And the advice must be general as to the policy which the committee thinks right in the light of always changing circumstances, and not specific with respect to particular cases, other than such few as may be referred to the committee as being particularly difficult. Least of all can it dictate to the Home Secretary or his department. It can only convey general views, and mate sure that both are kept continuously informed of the state of the art and of the argument. Above all, it must be a committee of moderates, and they must be capable of such decisions as will command public confidence, whether or not the kind of decisions which any one of us would have made for himself.
It is not under our constitution a requirement on Ministers that they should always tailor executive action to what seems to be the preponderance of public opinion at any given moment. If that is a condition of democracy, then we are not democratic, and I devoutly hope we never shall be. Rather we have government by means of free institutions and the rule of law. Under that rule it is for Ministers to exercise the authority which the law gives them, and justify themselves to Parliament in the short term and to the electorate in the longer term. There have, in fact, been cases in which they have defied what appeared to be the public mood, yet carried the House of Commons with them: the matter of the death penalty is an instance of this. But it is a bad Minister who does not keep himself informed and aware of the public mood, since it must tend to set limits to the free exercise of his judgment, both with regard to executive action and also to the directives which he lays down for his officials. It would be an essential part of the statutory committee's functions to see that the Home Secretary's administration of the new Act does not go, in either direction, beyond what a rational and informed public opinion will tolerate.
But I have heard it said, and said moreover by people whose judgement of these matters may end having some importance, that the idea of a bipartisan advisory committee is doomed from the outset, because scientists and animal protectionists could no more agree, and could no more offer convincing and practical joint advice, than Protestants and Roman Catholics in Northern Ireland could jointly frame a constitution. That is a counsel of despair: and I do not believe it to be true. It is for chose who have for so long now been in passionate opposition to one another to show that they can and will combine to substitute rational decision-making for moralising and rhetoric. The time has now come for them to climb out of their trenches and reason together in what has for so long been no-man's-land. The rewards for both parries, if they can do this, will be great and lasting; and the outcome of the reconciliation will be greatly to the public advantage. There are encouraging signs already, and particularly since Lord Halsbury's Bill passed the House of Lords, its passage leading to the abandonment of the much more partisan measure which had been proceeding so miserably in the Commons.
These signs of detente would, I am sure, have been welcomed by Stephen Paget, if he were back with us now. My impression of him is that he was a rational man, as well as a compassionate and pragmatic one. Although he spent much of his life in opposition to extremists and hardliners, I find it difficult to believe that he was one himself.
Last edited: 26 May 2015 11:54