Memorandum submitted by Nicolas de Brauwere
MRCVS
EXECUTIVE SUMMARY
I believe the Draft Animal Welfare Bill is a
major achievement in making the future animal welfare legislation
more coherent, comprehensive and straightforward. Clearly the
regulations to promote welfare and the associated codes of practice
will need to be properly formulated in order for the "positive
duty of care" principle to become a realistically effective
tool in preventing suffering (the main weakness of current legislation).
Poor regulations and codes will make the Act less effective than
the current legislation.
I feel there are four areas where the Draft
Animal Welfare Bill has limitations.
— Firstly, where animals are taken
into possession on welfare grounds, they could be sold or passed
on by the owner before proceedings have come before the Magistrate's
Court, making any deprivation order issued by the court following
a guilty verdict, pointless. The same safeguards proposed for
cases pending an appeal should apply to the animals taken into
possession subject to proceedings being concluded.
— The second concern relates to powers
of entry where a private dwelling may be the scene of acute suffering,
where waiting for a warrant would render the action of the inspector/constable
pointless.
— The third concern relates to the
provisions made for abandoned animals. While it is a good idea
to hold the last keeper responsible, the majority of equine cases
I am involved in have no traceable keeper; or if someone is suspected
to be the keeper there is no way of proving this. The Bill makes
no specific provision for giving guidance to welfare agencies
as to the steps to be followed when no owner can be identified.
A specified time period within which an owner can come forward
should be stipulated, after which the welfare agency can permanently
assume or re-assign ownership of the animal. Would the Bill intend
for the courts to be involved in all stages of abandonment and
stray animal cases as for other offences covered?
— The distinction between licensing
and registration of animal sanctuaries exempts those sanctuaries
most likely to have substandard practices from the level of scrutiny
and control most necessary.
Despite studying the Draft Animal Welfare Bill,
I cannot see how the Bill addresses the above concerns unambiguously.
If these are indeed addressed, I believe they could be presented
in a clearer manner. This would avoid undermining the overall,
comprehensive success of the Draft Animal Welfare Bill in addressing
the limitations of current animal welfare legislation.
1. Introduction
I am a veterinary surgeon, employed for the
past 13 years by Redwings Horse Sanctuary, the largest horse sanctuary
in the UK. Redwings currently cares for over 1,200 equines. I
have been responsible for the veterinary care of up to 1,600 equines
in the Sanctuary's ownership. I have for the past few years focussed
on the Sanctuary's external welfare activities, responding to
reports to the Sanctuary about equines in a suffering state. In
carrying out these responsibilities I have been involved in giving
advice and practical assistance to the keepers of all manner of
equines, in particular older equines; acted as the veterinary
opinion at the time of seizure of an equine in a suffering state;
and often given evidence in Magistrate and Appeal Courts in relation
to equines caused unnecessary suffering. In this time I have identified
some clearly defined patterns of cruelty and neglect with regard
to equines. These problems require better support to prevent and
stop equine suffering than the current welfare legislation provides
for.
The Draft Animal Welfare Bill is in my opinion
a well thought out and comprehensive solution to the limitations
of current animal welfare legislation in force in England and
Wales, particularly for companion animals (including equines).
The philosophy of a positive duty of care, and the potential to
work with keepers and owners in improving the welfare of their
animal/s (with support from the legislation if they fail to co-operate,
but before resorting to prosecution and punishment) will benefit
the keepers and owners, welfare agencies, and most importantly
the animals that require assistance and protection. There are
however some shortfalls as I see it in the Draft Animal Welfare
Bill.
2. Animals Taken Into Possession
Section 32 (5) specifically empowers the Court
to prevent an owner from selling or parting with animals, where
an appeal is lodged following a guilty verdict at the Magistrate's
Court. Though the Draft Animal Welfare Bill describes extensive
powers for the Court to prescribe how an animal will be cared
for after it has been taken into possession and pending the resolution
of proceedings, there is no mention of preventing an owner from
selling or parting with the animals that have been taken into
possession at this stage. I believe that if this safeguard is
not covered by the existing wording then it should be specifically
included. Otherwise any deprivation and/or disqualification order
the Court may impose following a defendant being found guilty
of a relevant offence, becomes pointless. It might also force
the court to release the animals in possession, to the new owner.
This could compromise the ability of the prosecutor to have care
of the animal/s for long enough to demonstrate an improvement
in the condition of the animal/s. This is often the only way an
allegation of neglect can be proven. Though tests on samples taken
from animals can identify certain diseases and problems, they
cannot prove neglect where failure to provide adequate care, such
as appropriate feeding, have lead to the animal suffering. In
such cases it would be necessary for the prosecutors to have the
animal/s in supervised care where they can demonstrate that with
reasonable care, an animal can return to an acceptable condition.
In the case of equines this can take between three and six months.
If one tries to hurry the recuperation it will often result in
disease and death of the animal. The sudden introduction of good
care in emaciated equines overwhelms their bodies and precipitates
an irreversible crisis. I have first hand experience of this.
Therefore I believe it is imperative that the Courts have the
power to ensure the animal/s taken into possession are cared for
properly and that the prosecutor has access to them until all
evidence required has been gathered. Allowing the animals to be
sold or parted with by the defendant could undermine all this.
3. Powers of Entry into Private Dwellings
Clearly Human Rights must be respected, and
the issuing of a warrant prior to entry into a private dwelling
is an appropriate safeguard. However the definition of a private
dwelling could be quite extensive, making access to animals believed
to be in acute distress a slow and complicated process. Examples
of potential problem situations include equines housed in people's
yards and being subjected to castration by a non-veterinary surgeon,
dogs allowed to fight in someone's basement etc. Bearing in mind
that the majority of the animals requiring improved legislative
safeguards are companion animals likely to be kept in private
dwellings; will the Bill be able to operate effectively when urgency
is paramount? What are the practical implications of obtaining
a warrant, how long will the delay be and will the inspectors
and constables be expected or allowed to wait at the premises
while a warrant is sought and obtained?
Further situations where I anticipate problems
arising from the need to obtain a warrant before entering a private
dwelling, include a dog trapped in a car parked on a driveway,
or in a conservatory (an incident which happened in Norfolk) or
inside a mobile home. All these are circumstances that could lead
to death of the dog as a result of heat stroke.
As many of the proposed offences are "arrestable
offences", will it be possible to arrest an individual in
order to gain access to a private dwelling where an urgent situation
is encountered?
4. Abandoned (and Stray) Animals
Although the proposal to continue to hold the
last keeper responsible for an animal, even if it is abandoned,
replaces the 1960 Abandonment Act, it doesn't specify the position
with regard to animals where a keeper cannot be traced or proof
of ownership cannot be established. It is a common situation for
keepers of suffering animals to deny ownership and hence avoid
responsibility and the associated consequences. Usually animals
in such situations are not on land which can be linked to the
suspected owner of the animal (eg common land). In some cases
this problem would be addressed by documentation linked to permanent
forms of identification present on/in the animal (eg microchip),
such as could happen with equine passports. However with equine
passport legislation there is no requirement for permanent identification
being a prerequisite for the issuing of a passport, so that if
a keeper chooses to abandon an equine it will be practically impossible
to track it back to the keeper. My experience over the past few
years, in dealing with over a 100 severely neglected and suffering
equines on common land in South Wales, is that some of these equines
belong to owners who deny ownership as outlined above. Alternatively,
these equines are dumped on the commons and there is no indication
as to who the owner is. Unless the welfare organisations intervene
and take such equines into care (on the advice of a veterinary
surgeon) these equines will continue to suffer or die. Therefore
the Draft Animal Welfare Bill needs to include legislative mechanisms
to specifically address this type of situation.
The lack of clarity in the Draft Animal Welfare
Bill on the issue of abandoned animals raises many questions for
welfare organisations dealing with the practicalities of taking
stray and abandoned animals into care. In the first instance,
will the inspectors under the Draft Animal Welfare Bill be able
to set up a functional mechanism for responding when stray and
abandoned animals are reported? Often stray animals are found
in dangerous situations (eg on busy roads) during the night. Currently
no one public institution is responsible for the consequences
of responding to stray animals and their subsequent care, except
for the Police, who limit their responsibility to the period that
the animals are on the public highways. As soon as the animals
are off the roads this responsibility appears to cease. A further
ambiguity occurs with the procedures to be followed by the organisations
that have taken a stray or abandoned animal into possession, when
it comes to knowing how to proceed. How long will the organisations
have to wait after taking the animal into care, before the animal
can be disposed of (via whatever method), who do they need to
inform and/or get permission from before acting, and what duty
falls to these organisations to actively seek out the animal's
keeper/owner? Will the inspectors under the Draft Animal Welfare
Bill take responsibility for initiating emergency responses and
following through the necessary procedures on behalf of the organisations
that actually collect the animal/s and take them into care? Will
each instance need to be put before the court by the inspectors
or constables who authorised the taking into possession?
If a landowner finds an abandoned animal on
his land, will the inspectors under the Draft Animal Welfare Bill
act on his behalf in following up the affair, authorising the
permanent disposal (via whatever means) etc? Or will the landowner,
as now, have to undertake a private disposal of the animal at
his own expense? What period will the landowner have to wait before
he can dispose of the animal/s, and what protection will the landowner
be afforded against later action for compensation by an owner
that comes forward?
Because of the issues and questions I have raised
above, I believe it is imperative that the Draft Animal Welfare
Bill specifically covers the eventualities arising from abandoned
and stray animals that need assistance.
5. Registration and Licensing of Animal Sanctuaries
The desire not to overburden the smaller sanctuaries
with licensing charges is understandable, but exempting smaller
sanctuaries from licensing misses the point. It is rare that a
major animal charity falls short of good welfare standards. It
is usually the smaller organisations, often not registered as
charities, which struggle to maintain good standards or are run
by individuals who have misguided ideals and inappropriate interpretations
of animal welfare and suffering. Examples of such care and methods
include failure to follow veterinary advice, failure to euthanase
animals when the animal is suffering (choosing instead to let
nature take its course), or relying on unproven and unsuccessful
therapies to deal with illnesses and pain suffered by the animals.
One of the reasons why a sanctuary may not be registered as a
charity is because they do not meet the required operational standards
that would be associated with good animal welfare. These organisations
should require more, not less scrutiny. I feel it is important
that if registration, not licensing, is required for non-charities,
the standards of care expected are as high, and the standards
of scrutiny as comprehensive, as with licensed, registered charities.
Perhaps a licensing fee proportional to the income of the sanctuary,
within a lower and upper limit, would be more appropriate but
allow all sanctuaries to be licensed.
6. Conclusion
It is important that the principle of positive
duty of care is uppermost in any new Animal Welfare Act. I believe
that if an animal is not well, the keeper has a duty to address
the situation. If the animal is not suffering from a condition
which requires veterinary intervention, the keeper must take positive
steps to correct the problem by employing the usual means available
to any keeper, eg diet supplementation or restriction; parasite
control; or farriery or dental care from suitably qualified individuals.
This should be carried out within a reasonable period of time
and with clear improvements being evident if no further steps
are expected to be undertaken. If there is no improvement, or
the animal is clearly ill, the owner has a duty to seek veterinary
advice and carry out prescribed treatments responsibly. If this
doesn't lead to the desired outcome it is still the duty of the
owner, not the vet or other care professional, to arrange for
further visits until the problem is resolved, even if this result
requires euthanasia for incurable and unmanageable conditions.
I believe that the Draft Animal Welfare Bill
addresses these principles very well. It is only the areas I have
outlined in the main text that I believe have not been addressed
clearly, and I make these observations as someone who has gained
significant experience in equine welfare as it is impacted by
these concerns.
25 August 2004
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