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
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
(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. 
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
(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
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 companionand
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.|
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
For completeness, we draw the Committee's attention to section
3(1) of the Welfare of Animals (England) Regulations 2000, which
states that Back
Including by the Farm Animal Welfare Council (FAWC), who developed
the Five Freedoms-see Radford op cit p 264ff.