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

Supplementary memorandum submitted by the National Farmers' Union

  1.  The Committee requested the NFU to submit supplementary evidence comparing the "before and after" position for farming in respect of the proposed legislation. We are also taking the opportunity to comment on some related issues that have arisen during the course of the hearings.


  2.  In general we are content that the cruelty offence in clause 1 is a reasonable modernisation of that contained in the 1911 Act. There will inevitably be questions of interpretation, for example on whether suffering could "reasonably" have been avoided, and what "reasonably competent and humane person" may mean. The specific offence of mutilating a protected animal is new; we understand that Defra's intention is to introduce an order to cover recognised procedures for farmed animals where the offence will not apply, and we will of course wish to monitor this closely.


  3.  The so-called "duty of care" offence contained in clause 3 is new. Whilst we recognise the intention of encouraging good and improved welfare practice in relation to all protected animals, we are not convinced that basing the offence on a failure to take "reasonable steps" would prove to be satisfactory, either in law or in practice. This is a serious matter as the offence carries maximum penalties of imprisonment for 51 weeks, or a level 5 fine, or both. As this is an issue of some technical complexity and with potentially far-reaching consequences, we set out below for the assistance of the Committee a fuller statement of our concerns.

  4.  Defra's explanatory notes in relation to clause 3 of the Bill state at point 34:

    "The Agriculture (Miscellaneous Provisions) Act 1968 introduced a positive duty to ensure the welfare of livestock on agricultural land. This meant that, in addition to an ability to prosecute offenders where an animal had already suffered, animals could be protected in circumstances where they were likely to suffer. The new welfare offence extends this protection to non-farmed animals . . ."

  This statement is inaccurate. There is no such provision in the A(MP)A 1968. The only legislation which deals with potential suffering is the Abandonment of Animals Act 1960[1] (see Animal Welfare Law in Britain Mike Radford OUP 2001—"this is the only offence of cruelty which can be committed on the basis of what has already occurred or, alternatively, what is likely to happen in the future.").

  5.  Clause 3 is not in fact a development of any trend in animal welfare legislation, either in connection with farmed, companion or other animals, but introduces a wholly new direction. It is our submission that, given the acknowledged complexities of assessing the welfare status of a given animal, this change of direction has been made more on the basis of an aspiration to change the perception of animals in society than on the basis of practical and humane management. As we stated in the summary to our comments to the EFRA committee, we are concerned that developments in legislation should always be driven by sound science rather than sentiment. [2]

  6.  To this end, the legal obligation established by the Act needs to recognize that the base line for assessing the appropriateness or otherwise of the way an animal is treated is how legitimate and acceptable that treatment is in the context of the individual human/animal relationship (so whether, for instance, the animal is a farmed animal or a companion animal). The obligation should be to act with a proper regard for the animal's welfare within that activity.

  7.  We anticipate that this approach may give rise to accusations of moral relativism. On the contrary, however, the inclusion in the Bill at clause 3 (4) of standards approximating to the Five Freedoms as the benchmark welfare standard means that the Bill proposes giving the force of law to concepts which have always previously been recognized as relative and subjective[3] (both from the point of view of the animal in question and of assessing welfare status). This gives rise to two serious concerns, namely, that a consistent application of the law will be rendered extremely difficult, and that a major change of legal assumption is being introduced without due recognition of the scale of that change.

  8.  We would therefore strongly recommend to the Committee that a more appropriate wording, in terms of both its enforcement in legal terms and its efficacy in promoting humane treatment of animals, is that a keeper of an animal commits an offence if he fails to act with such proper regard for the welfare of a protected animal as is appropriate in the circumstances. This wording avoids the suggestion of a delusory universally-applicable standard and instead provides the flexibility necessary to assess the welfare needs of individual animals, whether farmed or companion—and therefore allows for an intelligent approach to such issues as lack of companions of own species, confinement and essentially unnatural modes of life (which are in fact more likely to prove an issue in relation to companion rather than farmed animals). We welcome the RSPCA's commitment to prosecute only where a vet has given evidence that the welfare of the animal is not being met and the owner/keeper has first been that they are failing to meet the animal's needs. This however highlights the confusion introduced by the wording of the clause, where the offence is not a failure to meet the animal's needs, but a failure to take all steps conducive to its welfare (whether or not actually necessary). We suggest that our alternative approach in no way weakens the offence and retains the flexibility sought, but would recognize the complexity of the animal/human relationship.


  9.  We have commented previously on the very broad new powers that clause 7 would give to ministers to promote the welfare of animals. For farmed animals the matters that may be covered by regulations mostly replicate those already in the A(MP)A 1968, though specifying the number of animals in any accommodation is new. Ministers may do almost anything under these powers, including setting up licensing and registration systems, establishing advisory "quangos", creating new offences, and imposing fees and charges. Yet there is no obligation on them to consult anyone beforehand! This must be rectified in our view.


  10.  Although similar in its approach to the welfare codes for farmed animals in the A(MP)A 1968, there are some technical deficiencies in clause 7 (see paragraph 11 of our first submission). Also the Parliamentary approval of the codes needs to be improved (see paragraph 12 of our first submission).


  11.  In principle we support the powers to relive animals in distress, including the new provision for animals "likely to suffer". As indicated in paragraph 15 of our first submission we are concerned by the proposed change to the present regime in the 2000 Act whereby owners could be charged for costs even where they are subsequently acquitted. We have also raised concerns about the powers to search and deal with animals in distress in clause 14 which fall short of the safeguards for owners contained in the Animal Health Act 2002.


  12.  We have indicated our reservations about the new provision in clause 27 which would oblige the courts to give reasons not to make deprivation or disqualification orders where a person has been convicted of an offence. Instead of a presumption in favour of such orders being created, the courts being should be trusted as now to exercise their discretion to impose such orders where they think fit.


  13.  The RSPCA has said in evidence that it does not expect its own inspectors to be appointed by local authorities under clause 44. However there is nothing to stop local authorities inviting the Society, or any other welfare group, to supply them with inspectors, and the RSPCA has not indicated what its response would be if so invited. We believe that inspectors of farm animals should come from the public sector, and be accountable to authorities and ministers.

14 October 2004

"Owners and keepers of animals shall take all reasonable steps
(a)  to ensure the welfare of the animals under their care; and
(b)  the ensure that the animals are not caused unnecessary pain, suffering or injury."
On a superficial reading this may appear substantially similar to clause 3 of the Bill. However, the difference in the wording is significant. The new offence is based on a failure to take reasonable steps. The rules of construction mean that a departure from previous wording marks a change in meaning. In this case, the obligation becomes unworkably wide; it is no longer sufficient that all actions are carried out with an eye to the welfare of the animal, instead to comply strictly with the requirements of clause 3 all steps conducive to the animal's welfare must be carried on. This approach is problematic both practically and in terms of theories of animal welfare.

1   If any person being the owner or having charge or control of any animal shall without reasonable cause or excuse abandon it, whether permanently or not, in circumstances likely to cause the animal any unnecessary suffering, or cause or procure or, being the owner, permit it to be so abandoned, he shall be guilty of an offence of cruelty. . . Back

2   For completeness, we draw the Committee's attention to section 3(1) of the Welfare of Animals (England) Regulations 2000, which states that Back

3   Including by the Farm Animal Welfare Council (FAWC), who developed the Five Freedoms-see Radford op cit p 264ff.


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