Normalising-the-Unthinkable-Report

to-day care of the protected animals’ who should be specified (Home Office, 1986, s.6[5][a]), and a veterinarysurgeon or ‘other suitably qualified person’ should be on hand (but not necessarily full-time) (Home Office, 1986,s.6[5][b]). Furthermore, a number of additional safeguards were added to the original text of the act throughamendments to the Regulations of 1998. In particular, section 10 requires that persons charged with the day-todaycare of animals be suitably trained and sufficient in number (Home Office, 1986, s.10[5A], s.10[6B]), that theaccommodation be fit for the purpose of satisfying the captive animals’ basic health and well-being requirements,and that arrangements be in place to prevent, detect, and expeditiously eliminate avoidable pain or distress(Home Office, 1986, s.10[6B][a–e]; these provisions correlate almost exactly with those listed in article 5 of the thenparent Directive, Directive 86/609/EEC, the 1986 Directive). So that the Home Secretary is informed of whether theconditions in any establishment are ‘appropriate’, section 10(6C) requires that regard be paid, during any licensingapplication, to the provisions of Annex II of the 1986 Directive (European Commission, 1986).8.10. Although it is clear that the Home Secretary must give ‘appropriate’ consideration 11 to Annex II, it is notentirely clear in all cases how much weight the Home Secretary should afford to an individual establishment’sability to comply with Annex II. The Annex itself, however, clarifies: the object of the Annex is to ‘help authorities,institutions and individuals in their pursuit of the aims of the Directive …’ (European Commission, 1986, AnnexII, introduction, para 4) but to go no further than simply acting as ‘recommendations to be used with discretion,designed as guidance to the practices and standards which all concerned should conscientiously strive toachieve …’ (European Commission, 1986, Annex II, introduction, para 6). While regard is paid to Annex II duringthe licence application stage, The Home Office Code of Practice for the Housing and Care of Animals Used inScientific Procedures (Home Office, 1989), which largely replicates the principles contained within Annex II, governsthe ongoing aspects of animal welfare 12 . Under section 21 of ASPA, these codes of practice are given a degree oflegal force by virtue of s.21(4), which states that a breach of the code by any licensee ‘shall not of itself render thatperson liable to criminal or civil proceedings but – (a) any such code shall be admissible in evidence in any suchproceedings, and (b) if any of its provisions appears to the court conducting the proceedings to be relevant to anyquestion arising in the proceedings it shall be taken into account in determining that question’.8.11. As the analysis of ASRU practice has revealed, however, the ‘nuts and bolts’ safeguards are not, inthemselves, sufficient to guarantee that individual animals do not succumb to those ‘incidental and inadvertent’harms that Russell and Burch warned against back in 1959. This may be precisely the point, however. Thosepersons charged with the implementation and enforcement of the 1986 act (in its pre-2012 incarnation) clearly didnot view harms against the individual animals referred to previously as serious enough to warrant any significantcensure, and for this there are two possible reasons.8.12. First, the individual inspectors themselves might be insensible to the issue of animal suffering. Second, andmost likely, the parameters of suffering at an institutional level rule out, on the basis of some quasi-utilitarianaggregation, instances of individual suffering as constituting a violation of the rules. It is, as most ethicists areaware, fairly easy to override or undervalue the suffering of individuals when looking at the aggregation ofharms. However, even taking this into consideration, we still find no justification for how the deaths of 474 fishover a period of twenty-four to forty-eight hours did not constitute avoidable harm. The question then becomes,of course, if the deaths of 474 fish over a period of twenty-four to forty-eight hours did not constitute avoidableharm, then how many fish must die in water inappropriate to their needs for the utility calculus to be offended?And if two mice left in a procedure room without access to water for three days were deemed an insufficientnumber to warrant a finding of unnecessary harm, how many dehydrated and starved mice does it take to tip thescales? And if the regulators thought that no actionable harm was caused to the five rats left without pain relieffor two weeks following spinal surgery, would they be compelled into action by a similar fate befalling ten rats orone hundred or ten thousand? If, as we have argued, animals have moral weight beyond their utility, then their11‘The conditions of a certificate issued under section 6 or 7 [those pertaining to breeding and supply establishments] shallinclude such conditions relating to the general care and accommodation of protected animals … as the Secretary of Stateconsiders appropriate’ (Home Office, 1986, s.10[6B]).12Substantial changes have been made to ASPA, effective from January 2013, to bring it in line with Directive 2010/63, whichreplaces Directive 86/609. It is yet unclear what benefit, if any, the new regulations will provide. But we discuss the previousDirective in order to highlight the deficiencies.50 Normalising the Unthinkable: The Ethics of Using Animals in Research