Government response
Letter from Rt Hon Margaret Beckett MP,
Secretary of State, to the Chairman of the Environment, Food and
Rural Affairs Committee, 14 February 2005:
I am writing to thank you and members of the Efra
Select Committee for the pre-legislative scrutiny that you gave
to the draft Animal Welfare Bill.
The Committee worked hard and in a tight timescale
to produce what is a comprehensive report on the a complex subject
of significant public interest. The Committee's hearings and the
report itself have been of considerable assistance in helping
me improve the Bill, and I am confident that the Bill I am preparing
for introduction is better as a result. I am very grateful to
you and your team for this.
I enclose my response to the recommendations made
by the Committee, and look forward to further debate when the
Bill is introduced in Parliament.
With best wishes
Margaret Beckett
Introduction
Defra welcomes the contribution that this report
has made to the preparation of the Animal Welfare Bill. The clear
message that has emerged from the Committee hearings and the report
itself is one of widespread support for a Bill to modernise and
improve animal welfare legislation. The report has also confirmed
considerable enthusiasm for the introduction of a welfare offence
for animals kept by man. These are the key principles of the Animal
Welfare Bill, and we are pleased to see them endorsed in this
way.
The report has drawn attention to many important
and complex issues. Highlighting the powers given in the Bill
to the Secretary of State (in England) and the National Assembly
(in Wales) to make regulations to promote the welfare of kept
animals, the report has asked for greater clarity about the circumstances
in which these powers will be exercised and for public and parliamentary
consultation prior to their use.
The report has commented helpfully on problematic
definitions, the drafting of the cruelty offence and the enforcement
and prosecution provisions within the Bill. It has also raised
concerns about the regulatory impact assessment and the extent
of public consultation in preparing the draft Bill.
We are grateful for the clear manner in which the
report has set out these concerns and criticisms. We will address
many of them by making changes to the Bill and the regulatory
impact assessment, though we did not agree with everything the
report recommends. These changes have been considered in consultation
with colleagues in the Welsh Assembly Government.
We have set out below our detailed response to the
recommendations in the report.
Conclusions and recommendations on definitions
Recommendations 1, 2 and 3
1.
We agree with the RSPCA that the legislation should specify the
criteria according to which the delegated power in clause 53(3)
may be exercised. The definition of "animal" is fundamental
to the draft legislation; it would determine the scope of the
legislation's application. It should therefore be clear on what
basis the power to extend the Act's application may be exercised.
(Paragraph 20)
2.
We endorse the RSPCA's suggestion that the appropriate national
authority should be able to make an order under clause 53(3) only
where the authority has reasonable grounds to believe, on the
basis of scientific evidence, that the animal to which it is proposed
to extend the protection of the Act has the capacity to experience
pain, suffering, distress or lasting harm. We recommend that the
Government amend clause 53(3) to include words to this effect.
(Paragraph 21)
3.
It is crucial that these criteria be spelt out on the face of
the legislation. It is not sufficient for Defra to give an undertaking
that orders will be made under clause 53(3) only on the basis
of appropriate scientific evidence. (Paragraph 22)
We have accepted these recommendations and the relevant
criteria for extending the definition of animal will appear on
the face of the Bill, although we intend to limit these to the
capacity to experience pain or suffering so as to be consistent
with wording elsewhere in the Bill.
Recommendation 4
We believe that a strong case has been made for
the inclusion of octopus, squids and cuttlefish, and of crabs,
lobsters and crayfish, in the clause 53(1) definition of "animal".
The position of the Animal Procedures Committee on octopus, squids
and cuttlefish is particularly persuasive in this respect. However,
although it seems to us that octopus, squids and cuttlefish, and
crabs, lobsters and crayfish, ought to be included in the clause
53(1) definition of "animal", we consider that we have
received insufficient evidence on which to base a final conclusion
on this matter. We therefore recommend that, prior to introducing
a Bill to Parliament, the Government should reassess whether there
are reasonable grounds to believe, on the basis of scientific
evidence, that octopus, squids and cuttlefish, and crabs, lobsters
and crayfish, have the capacity to experience pain, suffering,
distress or lasting harm. The Government should have particular
regard to evidence relied on by New Zealand and the Australian
Capital Territory in choosing to include cephalopods and certain
crustaceans in their respective animal welfare legislation. Whilst
this assessment is being undertaken a code of practice should
be issued giving details of humane ways in which crabs and lobsters
should be stunned prior to cooking. (Paragraph 30)
Defra veterinarians have reviewed the scientific
evidence for the inclusion of cephalopods and crustaceans. We
do not consider there is sufficient scientific evidence to suggest
that crustaceans can experience pain or suffering to warrant their
inclusion. The evidence for cephalopods is more balanced and we
will continue to review. We have noted the comments of the Committee
concerning the conclusions reached by the Animal Procedures Committee
and we intend to work closely with the Home Office and the European
Commission, who are also reviewing this issue, as to the inclusion
of cephalopods in the laws to protect animals in research.
It will not be possible to issue codes of practice
for animals not captured by the definition of animal, unless regulations
extending that definition have already entered into force.
Recommendations 5 to 9
5.
We support the Government's position that the protection offered
by the draft Bill should not extend to wild animals, living in
the wild; such animals are better covered by other, existing legislation.
However, we are unconvinced that the phrase "temporarily
in the custody or control of man" in the definition of a
"protected animal" will achieve the Government's intended
position. (Paragraph 39)
6.
We therefore recommend that the Government adopt the approach
taken in the Protection of Animals Act 1911 and in more recent
Northern Ireland and New Zealand legislation of:
- adopting a broad definition of what constitutes
an animal, but
- limiting the application of the definition
by excluding specific activities from the scope of the legislation's
protection, rather than by seeking to define a narrower class
of "animal" (a "protected animal", in this
case).
Examples of activities to be excluded would include
hunting or killing wild animals or animals in a wild state, including
in accordance with relevant legislation for pest control or conservation
purposes. (Paragraph 40)
7.
If the Government does not accept our recommendation then, at
the very least, a definition of the word "control",
as it is used in the phrase "temporarily in the custody or
control of man", should be included on the face of the Bill.
Such a definition should be drawn sufficiently narrowly so as
to ensure that the protection offered by the draft Bill would
not extend to wild animals, living in the wild. (Paragraph 41)
8.
We consider that, as the draft Bill is currently drafted, there
is a strong argument that a person catching a fish, both in a
commercial and a recreational context, could be liable to prosecution
under the clause 1 cruelty offence, which would include the clause
1(4) mutilation offence in the case of fishing hooks and, perhaps,
fishing nets. There is also an argument that a prosecution could
be brought under the clause 3 welfare offence. We therefore doubt
the Government's position that the draft Bill would be unlikely
to have any impact on traditional fishing or angling practices.
(Paragraph 46)
9.
We accept that neither commercial fishing nor recreational angling
should fall within the remit of the draft Bill and we therefore
support the Government's intention to exempt fishing as an activity—rather
than fish as a species—from the scope of the legislation.
Amendment is necessary: even if prosecutions for fishing-related
activities were to prove unsuccessful when brought, the fact remains
that those prosecutions should not be able to be brought in the
first place. However, in exempting fishing, the Government should
be careful to ensure that those persons who catch fish are not
given carte blanche to inflict unnecessary suffering in the course
of pursuing this activity; welfare standards should continue to
apply where appropriate. (Paragraph 47)
Animals living in the wild do not fall within the
definition of 'protected animal', so to that extent they are exempted.
But we agree that the definitions become less clear when a wild
animal is, for example, stranded, or trapped, or injured as in
a road accident. Our approach is that once the animal is under
the control of man, it is incumbent on man not to cause it, or
permit it to be caused, unnecessary suffering. We do not believe
that wild animals in these circumstances should be exempted. We
have been advised against attempting a definition of "under
the control of man" by Parliamentary Counsel since it is
thought more likely to confuse than aid interpretation. Listing
or categorizing every scenario that may cause an animal to come
under the control of man is not possible and in most cases the
meaning of 'under the control of man' will be clear. In borderline
cases, our view is the term should be open to interpretation by
the courts.
In light of the Committee's recommendations, we will
amend the draft Bill to include a specific exemption from the
cruelty offence for fishing (including angling). The welfare offence
will only apply to fish for which a person is responsible, and
so will exclude situations commonly arising during fishing and
angling. The welfare offence will, however, apply to farmed fish
- which are already protected under EU Directive 98/58/EC concerning
the protection of animals kept for farming purposes - and fish
kept in other situations where man is responsible, such as in
aquaria. If a person is fishing or angling, he will not generally
assume responsibility for the fish. In cases where a person can
be said to be responsible for fish, the court must take into account
any lawful purpose for which an animal is kept and any lawful
practice undertaken in relation to the animal in determining whether
its welfare needs have been met in accordance with good practice.
If a fish were kept in a stocked pond in order that it could be
caught by anglers, this would be relevant in determining what
steps ought reasonably to be taken to ensure its needs are met
in accordance with good practice.
We do not intend to exempt shooting from either the
cruelty or the welfare offence. We consider animals at liberty
in the wild, such as pheasants that are free to roam wherever
they wish, to be in a wild state and not within the definition
of 'protected animal'. However if a shot or hunted animal does
come under the control of man, perhaps when wounded, it could
fall within the definition of 'protected animal'. Generally it
is difficult to envisage circumstances in which such animals would
come under the control of man other than when the purpose was
to kill the animal in an appropriate and humane manner. If gratuitous
suffering were inflicted, it might amount to an offence of cruelty.
The Bill will not affect lawful pest control activities.
Recommendations 10 & 11
10.
We consider that the way in which the definitions of "animal",
"protected animal", "kept by man" and "keeper"
apply within the framework of the draft Bill, and the interrelationship
between the definitions, is problematic and is likely to prove
confusing to many future users of the legislation. 'Casual' users
of the legislation will need to know the legislation in some detail
before they are in a position to understand and apply it. (Paragraph
55)
11.
We recommend that the Government amend the draft Bill to clarify
the interrelationship between these definitions. The changes which
the Government has indicated it is considering certainly warrant
exploration; in particular, the Government should be careful to
make clear the relationship between the clause 3 welfare offence
and the clause 6(1) delegated power by using consistent language
in the two clauses. (Paragraph 56)
We will amend the draft Bill to reflect this
recommendation and ensure the wording in the welfare and regulation-making
clauses is more consistent. Both clauses will refer to being responsible
for an animal, a definition of which will be included in the Bill,
and references to "keeper", "kept" and "kept
by man" will be removed. In addition, the definition of "protected
animal" will be simplified.
