Select Committee on Environment, Food and Rural Affairs Fourth Special Report


The Environment, Food and Rural Affairs Committee reported to the House on The Draft Animal Welfare Bill in its First Report of Session 2004-05, published on 8 December 2004 as HC 52-I. The Government's Reply to the Report was received on 14 February 2005.

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


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.

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