Select Committee on Environment, Food and Rural Affairs Minutes of Evidence

Memorandum submitted by the National Farmers' Union (NFU)


  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.


  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for the welfare of farmed animals, the Agriculture (Miscellaneous Provisions) Act 1968, have been made is to be repealed by this Bill and its provisions superseded.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.


  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.


  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.


  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.


  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.


  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?


  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.


  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.


  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.


  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.


  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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