Memorandum submitted by the National Farmers'
Union (NFU)
SUMMARY OF
NFU POSITION
1. The NFU welcomes this opportunity to
comment on the Government's draft Animal Welfare Bill. We responded
to Defra's consultation exercise in 2002. In summary our view
is that we recognise the need for modernising the law in this
area coupled with the policy objective of having legislation that
can take account of changing welfare needs and increased scientific
knowledge; however we shall want to be convinced that this process
will not be driven by any temptation to impose over-prescriptive
regulation based on sentiment rather than sound science. We have
a number of detailed comments on the draft Bill, some of which
raise policy issues, some of which are points which need to be
clarified, and some of which are concerned with drafting issues.
OUR INTEREST
IN THE
BILL
2. As the explanatory notes to the draft
Bill acknowledge, successful legislation to promote the welfare
of farmed livestock has been in place since the 1960s, and to
some extent this Bill is concerned with extending this approach
to non-farmed domesticated animals. Nonetheless the proposed legislation
does of course cover farmed animals too, and that part of the
main legislation by which codes of recommendation for the welfare
of farmed animals, the Agriculture (Miscellaneous Provisions)
Act 1968, have been made is to be repealed by this Bill and its
provisions superseded. In some instances we are concerned that
what may be appropriate provision for companion animals is not
necessarily appropriate for animals kept for commercial purposes
as in farming.
ANIMALS TO
WHICH THE
BILL APPLIES
3. As drafted, the Bill appears to distinguish
in some clauses between a "protected animal" and "an
animal", both of which are defined terms (ss.53 and 54).
For example subsections (4), (7) and (9) of clause 1 refer to
a "protected animal" in their sub-sections (a) and (b),
but merely to "an animal" in sub-section (c). A similar
doubt arises under clause 3 where it is not certain from the drafting
that the new "duty of care" offence relates solely to
protected animals which we assume is the intention. The provision
in clause 16 for court orders in relation to animals in distress
should also make it clear that it refers to protected animals.
Whilst it is clear in some clauses (for instance, clause 11) that
"animal" refers back to the term "protected animal",
in the clauses cited above it is not certain whether a distinction
is being made. It is essential that it is clear to which animals
the Bill applies in all circumstances.
THE CRUELTY
OFFENCE
4. Clause 1 sets out to replace the cruelty
offence in section 1 of the 1911 Act. There are a number of issues
concerned with it that deserve close scrutiny. Subsection (3)
lists the considerations to have regard to when determining whether
suffering is unnecessary. There is no specific reference to whether
the conduct in question was in response to veterinary advice;
this may be covered by the reference in subsection (4) to conduct
for a legitimate purpose including benefiting the animal, but
we seek assurance that such conduct would be a relevant consideration
for the courts.
5. Subsection (4) introduces the offence
of mutilation, and the explanatory notes confirm that an order
under subsection (5) specifying the circumstances where the offence
will not apply will be made at the same time as the offence is
commenced. Procedures such as castration and tail docking can
be necessary for farm animals such as sheep and pigs, and there
is specific provision for such procedures in existing EU and UK
legislation and in the welfare codes. It is most important that
the order to be made under subsection (5) of the Bill ensures
that the existing arrangements, which are well-established and
well understood by farmers, continue undisturbed.
WELFARE OFFENCE
6. Clause 3 delivers the so-called "duty
of care". We believe that the intentions of the new offence
and the likely implications for keepers of animals need to be
looked at carefully. On the face of it does not seem unreasonable
for animal keepers to be required to "take reasonable steps
to ensure the animal's welfare". However the term "reasonable
steps" may imply a constant process of proactive conduct
which may not be appropriate to delivering welfare to the animals
concerned. We think that an offence turning on the keeper's failure
to have a proper regard for the welfare of the animals could be
a better, and fairer test. Consideration also needs to be given
to the circumstances of the case. For example with apparently
more volatile weather patterns in recent years there have been
cases of unpredicted flash flooding where farmers have struggled
to save their animals from being washed away from the fields.
Naturally every farmer would want to guard against that happening,
but there must be doubt about what would constitute "reasonable
steps" to ensure welfare in such force majeure circumstances.
7. Subsection (3) of clause 3 provides that
a keeper of an animal who has parted with possession shall nevertheless
remain responsible for that animal if it is abandoned (which,
whilst not defined, would appear to mean while the animal has
no identifiable keeper as defined by subsection (2) of the same
clause). We can see the appropriateness of this provision in relation
to companion animals. However, farmed animals are the subject
of commercial transactions, and it must be clear when the seller's
obligations end in respect of an animal. In addition, it is not
clear whether the definition in subsection (2) requires that both
element (a) and (b) be present, or whether they are independent
of each other. Whilst in most situations the purchaser of an animal
will be known to the seller, farmers must be protected from situations
where they are not required to keep records of the purchaser,
and the animal is subsequently abandoned or escapes.
8. Subsection (5) of clause 3 qualifies
the requirement in subsection (4) to meet the needs of the animals
in an appropriate manner. This should be extended by incorporating
similar provisions to those contained in clause 1(3) so that action
taken to meet the needs of the animal in compliance with statutory
provisions, or on veterinary advice would be relevant considerations
in any proceedings on this new offence. Finally we are puzzled
by the reference in Annex L to Defra's document on the draft Bill
to proposed regulations on the "definition of the welfare
offence", as (rightly) there do not appear to be ministerial
powers to alter the terms of the offence.
REGULATIONS TO
PROMOTE WELFARE
9. Clause 6 provides the main means by which
ministers will be able to keep the welfare law up to date. We
would draw attention to the extremely broad powers which this
clause would provide to the government of the day in the name
of promoting the welfare of animals. As the explanatory notes
wryly observe the long list of purposes for regulation in subsection
(2) from (a) to (q) is indeed "non-exhaustive"! A number
of the purposes mentioned are primarily directed to farmed animals
and reflect similar provisions in the 1968 Act—with some
extension though, for example we believe the reference to a possible
regulation on the number of animals which may be kept in any accommodation
(subsection (2)(b)(iv)) is new. It is essential that the regulation
of farmed animals is based on sound science; welfare issues can
be emotive, but ministers must be seen to resist any temptation
there may be to introduce regulation on the back of sentiment.
We support the ongoing work of the Farm Animal Welfare Council
which advises government on farm welfare issues. In considering
regulations regard should be had to the important role played
by the farm assurance schemes which act to reinforce the good
welfare practice expected of farmers through existing regulations
and welfare codes, and which encourage consumer confidence.
10. Given the potential breadth of these
powers, the ability to establish licensing and registration schemes,
and to create offences with custodial sentences up to a year and
fines of £5,000, it is quite right that the regulations are
subject to affirmative procedure for approval so that each House
of Parliament will have to positively endorse any regulations
that a minister proposes. Although by modern standards we would
expect ministers to consult with affected keepers of animals before
introducing regulations (as they have to for codes under clause
8) clause 6 does not oblige them to do so; the clause should be
amended so as to guarantee that consultation happens.
CODES OF
PRACTICE
11. The welfare codes for farmed animals
have been a success and we therefore support the incorporation
of this approach in the draft Bill and its potential application
to any protected animals, not just agricultural livestock. We
have a couple of reservations about clause 7. First the 1968 Act
provides (section 3(4)) that a failure to observe a code can be
relied upon by the prosecution as tending to establish guilt unless
the accused cannot reasonably be expected to have observed the
provision within the period since the provision was included in
the code. Clause 7 does not contain a corresponding safeguard
which we believe it should to allow a reasonable period of time
for persons to amend their practices to conform with new advice.
Secondly subsection (4) refers to failure to comply "as tending
to establish liability" and compliance can be relied upon
"as tending to negative liability". We assume this refers
back to the reference in subsection (3) to liability to proceedings,
but we believe the drafting is potentially misleading. Surely
the issue is whether the failure to comply tends to establish
"guilt" (as in the 1968 Act) rather than the question
of whether proceedings are likely?
MAKING AND
APPROVAL OF
CODES OF
PRACTICE
12. We welcome the duty on the Secretary
of State in clause 8(1) to consult about the draft of a code before
proceeding with it, and to consider any representations made.
We would, however, draw the Committee's attention to what we consider
to be an odd and unsatisfactory procedure for Parliamentary approval
of codes which appears to be capable of operating by default,
and for the convenience of Whitehall rather than Westminster.
Under subsection (3) the Secretary of State must take no further
steps if either House resolves not to approve a draft code within
40 Parliamentary days—but subsection (6) ensures the minister
can then lay a new draft of a proposed code before Parliament!
More importantly under subsection (4) the code can be issued by
the minister if "neither House resolves not to approve a
draft" within the 40 days. In other words it seems that codes
could be issued "on the nod" with no guarantee of a
debate in either House. This default approach is inferior to the
simple provision in the 1968 Act that codes shall not be issued
"until the code or the proposed alterations have been approved
by both Houses". Last year the Government attempted to obtain
approval for a revised cattle code that incorrectly referred to
pigs in two places! Rightly in our view ministers were pressed
by the Lords to withdraw the code and submit a corrected version.
It is important that MPs and peers should have the opportunity
to positively approve the codes and we would urge that the straightforward
approval procedure in the 1968 Act be substituted for the clause
8 provisions.
ANIMALS IN
DISTRESS
13. Clause 11 and subsequent clauses replace
and extend the animals in distress provisions in the Protection
of Animals Act 2000. Although in principle it is clearly right
that the authorities can act to relieve animals in distress, it
is important that in practice these powers are operated in a reasonable
and responsible manner, especially now that there will be judgments
to be made anticipating whether an animal "is likely to suffer"
in advance of suffering actually occurring. We have noted the
agreement recently entered into between Defra and the RSPCA whereby
the latter will be an authorised prosecutor for cruelty offences
for a period of three years from September 2004. It is very unusual
for a private body, which is not itself accountable to Parliament,
to be afforded the status of an official prosecutor. We accept
that the agreement obliges the RSPCA to have due regard to the
interests of the owners of animals, and that the Society's work
in relieving animals in distress is laudable. Nonetheless, and
despite its status as a charity, the Society behaves as a campaigning
pressure group dependent on maintaining a high media profile to
encourage the public's support. There is a significant potential
for a conflict of interest here, and farmers and other keepers
of animals will want to see that the Society exercises its privileged
position as an authorised prosecutor fairly and impartially, rather
than as a means to achieving its campaigning objectives.
14. Although clause 11 is described as being
a measure to deal with emergencies, there is no direct reference
to the need for urgent action, the drafting merely speaks of "if
its circumstances do not change". Subsection (2) allows an
inspector or constable to act where it would take too long to
summon a vet. It is not generally desirable for persons to be
called upon to make judgments beyond their expertise unless the
circumstances are very pressing or obvious, and we suggest that
there is a case for ministerial guidance to ensure this provision
is used sparingly where its use can be fully justified.
15. Clause 12(4) gives a power for any costs
relating to the removal or care of an animal which has been taken
into possession under clause 11 to be recoverable from the owner
of the animal. However under the 2000 Act the prosecutor can be
reimbursed for his expenses only where a court order to take action
in the interests of the welfare of the animals has been granted
on veterinary evidence (this is replicated in clause 20 of the
Bill). Under the Bill, as drafted, the owner could be billed for
the costs of removing and caring for the animals even if he was
subsequently acquitted of any proceedings that might be brought
against him, which we find hard to see would be fair. Moreover
the liability on owners for costs of the procedure could encourage
overzealous action by inspectors as they would not be financially
restrained in terms of the outcome of their actions. Owners of
animals should not be relied upon as financiers of this activity
until such time as a court is satisfied in each case that the
action taken was justified.
16. Clause 14 gives powers to inspectors
and the police to enter premises where they reasonably believe
an animal is suffering or is likely to suffer. The powers of authorities
to enter premises in relation to animals was a cause of high emotion
amongst some keepers of animals during and after the foot and
mouth outbreak of 2001. We recognize that it is not easy to strike
the optimum balance between, in this case, the public interest
of enforcing good animal welfare, and the individual rights of
occupiers of premises who keep animals. The issue was extensively
debated on the Bill which became the Animal Health Act 2002. In
that Act the procedure for issuing a warrant to enter the premises
provides a fairer balance for the rights of occupiers. Unlike
in the draft Bill, in the Act the justice of the peace has to
be given sworn information in writing that there are reasonable
grounds for entry, including a statement as to whether any representations
have been made by the occupier, and a summary of any such representations.
Subsection (6)(c)(ii) of the clause allows inspectors to circumvent
the obligation informing the occupier of the application to obtain
a warrant if they can convince the JP that entry is required as
a matter of urgency. Here again ministerial guidance is desirable
to make it clear that normally the occupier's right to be informed
and to have his views made known to the JP should be respected.
Finally it is crucial that effective arrangements are in place
to ensure that any person entering farm premises has to observe
any biosecurity requirements that may be in force: not only could
breach of such requirements have extremely serious commercial
implications, but it would be an irony for animal diseases to
be spread by persons seeking to relieve animals which are thought
to be suffering.
POWERS FOLLOWING
CONVICTION
17. We believe the Bill is appropriate to
provide in clause 24 for a lower maximum fine (£5,000) for
the welfare offence in clause 3, compared to that for cruelty
offences under clause 1 (£20,000). Clause 27 provides that
the courts must give its reasons if it decides not to make deprivation
orders or disqualification orders where a person has been convicted
of an offence. The effect of this will be to force the courts
to consider deprivation and disqualification in all cases of convictions,
even relatively minor infringements under the welfare offence
(as opposed to gross or persistent cruelty cases where such penalties
could clearly be appropriate). This creation of a presumption
in favour of deprivation and/or disqualification orders (in addition
to or instead of fines and custodial sentences) is inappropriate.
Instead the emphasis should be reversed so that the courts would
have a discretion to make such orders, and be required to give
reasons where they do so. Without such a change there is a serious
risk of disproportionate penalties being applied, which in the
case of livestock farmers who depend on their animals for their
livelihoods could have calamitous consequences for their businesses.
ENFORCEMENT POWERS
18. Clause 38 introduces specific powers
of entry for inspectors to enter farm premises to check compliance
with welfare regulations and to ascertain whether any offence
has been or is being committed. Local authority inspectors would
gain similar powers to those of the State Veterinary Service,
an issue on which we have concerns as expressed in paragraph 19
below. The NFU has no quarrel with the need to enforce welfare
regulations, but this must be done in a responsible manner; it
would not, for example, be acceptable for farmers to be the subject
of repetitive visits or "fishing expeditions" by inspectors
without good reason. The clause does not specify that the inspector
has to present the occupier of the premises with evidence of his
identity and authority for entering, and this omission should
be rectified. Moreover it is important that there are protocols
in place to cover other aspects of visits by inspectors such as
the maintenance of proper records of each visit, preliminary statement
of findings etc. We remain concerned by the proliferation of regulatory
visits to farm premises and wish to see the early introduction
of the Whole Farm Approach to regulation which will cut out unnecessary
duplication of effort whilst delivering effective compliance.
Our concerns about the clause 14 powers of entry referred to in
paragraph 16 above apply equally to these powers of entry, and
the warrant procedures in subsequent clauses.
INSPECTORS
19. Clause 44 makes provision for the Secretary
of State to issue guidance to local authorities on the appointment
of inspectors including the drawing up of a list of persons the
minister considers to be suitable. We believe it is important
that this process should be more interactive and transparent than
the procedure currently envisaged. There should be a consultation
exercise before guidance on the appointment of inspectors is issued,
so that there can be a debate about, for example the qualifications,
qualities, and experience that would be appropriate. It is not
clear, for example, whether the Government anticipates that some
appointees might be persons who are employed by welfare organisations.
If that were the case how could loyalty to the intentions of the
legislation be guaranteed, as opposed to loyalty to the employer?
If it were not the case, what action could the Secretary of State
take if local authorities decided to ignore the guidance given
to them on suitable persons? We would urge the Committee to examine
this issue.
18 August 2004
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