Memorandum submitted by Mike Radford
Legal regulation of the way in which animals
are treated is essential. However, there are significant shortcomings
in the present legislation which the draft Animal Welfare Bill
is generally successful in addressing. As drafted, the Bill has
the potential to put in place an enduring legislative framework
to protect animals from abuse, ignorance and neglect, and positively
to promote high standards of care and treatment. A number of issues
are identified, particularly in relation to cruelty, welfare,
and powers following conviction, which it is suggested will further
strengthen its provisions.
Mike Radford is Reader in Law in the University
of Aberdeen, where he specialises in animal welfare law and public
law. This submission represents the author's personal views, and
it should not be inferred that they are necessarily the same as
those of the organisations with which he is associated.
INTRODUCTION
1. Legal regulation of the way in which
animals are treated is essential in order to offset the otherwise
unconstrained property rights under common law which allow an
owner to do with his animals as he wishes. For 150 years after
the first animal protection legislation was enacted in 1822, the
primary focus was on the prohibition of cruelty (presently represented
by the Protection of Animals Acts). However, during the last 30
or so years there has developed in relation to some classes of
animals a parallel body of legislation concerned with standards
of animal welfare.
SHORTCOMINGS IN
THE LAW
2. There is a compelling case for legislative
reform. Five general shortcomings in the present law can be identified:
— The nature of the legislation:
The scope and character of the Protection of Animals Acts are
outdated, inadequate, and unwieldy. The principal cause is a lack
of enabling powers: without recourse to the enactment of further
primary legislation, they cannot be updated to reflect developing
scientific knowledge, changing ethical considerations, or perceived
weaknesses in their application. Those reforms which have been
introduced are typically ad hoc and piecemeal in nature,
and are now spread inconveniently across a large number of statutes.
— The offence of cruelty: The
present wording defining the offence of cruelty is unsatisfactory.
The High Court has recently described it as "unnecessarily
confusing", and suggested that "it is surely high time"
that the policy underlying the legislation be expressed in "clear,
intelligible modern language" (Isted v Crown Prosecution
Service (1998), per Brooke LJ).
— Provisions relating to welfare:
The law fails, in respect of many animals, to define how they
ought to be treated. A person may be prosecuted for treating them
cruelly, but the offence of cruelty merely defines the standard
below which conduct towards animals becomes unlawful; it imposes
no requirement to improve upon that basic benchmark. Adequate
protection requires all those who assume responsibility for an
animal to be placed under a positive duty to ensure its welfare.
— The regulatory regime: Some
commercial activities involving animals are subject to licensing
or registration, but many others are not. Even where such regulation
exists, it often fails to promote modern concepts of welfare or
to contain appropriate provisions to enable authorities adequately
to ensure the interests of the animals involved.
— Enforcement: There is legitimate
concern that effective enforcement is compromised by a combination
of inadequate powers, a failure by some enforcement authorities
properly to carry out their functions, and a reluctance by the
courts to use their powers to protect the interests of animals.
THE SCOPE
OF THE
DRAFT BILL
3. Notwithstanding reservations about specific
provisions, mainly concerned with detail or the nature of the
wording, the principles and policy underlying the Bill are enthusiastically
endorsed. The Bill addresses each of the shortcomings identified
above, and its significance cannot be overstated.
4. As one would expect in relation to a
document which remains work-in-progress, there are areas which
can be improved, in relation to both the substance and the drafting.
The pre-legislative scrutiny being undertaken by the Committee
will undoubtedly make a major contribution to this process. Overall,
however, it is undoubtedly the case that the Bill has the potential
to put in place an enduring legislative framework to protect animals
from abuse, ignorance and neglect, and positively to promote high
standards of care and treatment.
CLAUSE 1—CRUELTY
5. As presently defined, an offence of cruelty
may be committed by eight different courses of behaviour spread
across a number of different statutes, and much of the wording
dates back to the nineteenth century. There is a wide consensus
that this situation requires reform. At the same time, however,
it is the case that the specific offence on which the vast majority
of prosecutions is based—namely, wantonly or unreasonably
doing or omitting to do any act causing unnecessary suffering
to any animal—is generally regarded to have successfully
stood the test of time. The major criticism which has been made
of it is the requirement that an animal has actually to have suffered
before an offence is committed. This has made it difficult for
enforcement authorities to prevent suffering, especially in cases
of neglect, where the animal's condition may deteriorate gradually
over a period of time. However, this particular issue will be
adequately addressed by the introduction of the duty of care,
and the associated powers which are proposed to support it.
6. In redrafting the offence, it is essential
that the advantages of the existing definition are preserved,
and the meaning and application of the new offence is straightforward
and certain. The present provision does not seem to meet these
criteria. It is verbose, and, despite the statement in paragraph
23 of the Explanatory Notes, it is not clear from the wording
of the clause itself whether the intention is to maintain the
status quo, or to change the meaning of the offence.
7. Despite the criticism which has been
made of it over the years, it is sensible to retain the concept
of "unnecessary suffering", not least because it largely
works in practice. I am aware that there has been some discussion
of introducing a different concept, such as substituting "unnecessary
suffering" with a test of "unjustified suffering".
I would have some sympathy with this on intellectual grounds,
but I think Parliament would need to be absolutely certain that
different phraseology would work, and that it amounted to a definite
improvement, before ousting the unnecessary suffering test.
8. It must be made clear that "suffering"
applies to both physical and mental suffering.
9. As presently drafted, clause 1(3) is
unduly complicated. I understand why it has been introduced, but
I am not totally convinced it is necessary. If it is maintained,
is would be desirable for the wording to be amended to make it
more concise and to ensure that it clearly directs the court in
how to apply the unnecessary suffering test.
10. There is merit is removing sub-clauses
(4)-(9) from clause 1, and placing the offences related to mutilation,
drugs, and operations in separate clauses.
11. Clause 1(10)(a)(ii) and (iii) should
expressly include temporary responsibility, charge, care and control.
12. The intention of clause 1(10)(b) is
admirable, but the wording needs improvement.
13. Although it is no doubt intended that
the new definition of cruelty, once agreed, will cover all eventualities,
consideration should be given to introducing an enabling clause,
allowing it to be changed by regulation, just in case.
14. It is relevant in this context to consider
the meaning of a "protected animal" (clause 54(2)).
What principle dictates that wild animals should not be protected
against the infliction by man of unnecessary suffering? The corresponding
legislation in Northern Ireland makes no distinction between different
classes of animals. It extends protection against cruelty to all
mammals, birds, fish and reptiles, regardless of the circumstances
in which they are living ((Welfare of Animals (Northern Ireland)
Act 1972, s 29(1)), and the same should apply in England and Wales.
15. If the concept of "protected animal"
is to remain, clause 54(2)(b)(ii) should be further defined, along
the lines of ". . . not (or not yet) successfully living
independently in the wild". Similarly, "custody"
and "control" need further definition.
CLAUSE 2—FIGHTING
16. Making offences relating to fighting
distinct from the offence of cruelty is welcome, as are the measures
in the clause which both extend and clarify the existing law.
17. In clause 2(1)(a)-(e), does the prosecution
have to show that a fight actually took place, or is it sufficient
to show that it was intended?
CLAUSE 3—WELFARE
18. In extending responsibility to promote
welfare to all animals, this clause addresses one of the fundamental
weaknesses in the present law, and is greatly to be welcomed.
It is appreciated that officials recognise weaknesses in the present
drafting, and at the time of writing, discussions on the form
and wording of this clause are continuing.
19. Its eventual effectiveness will be largely
dependent on the regulations that are introduced to promote welfare
under the authority of clause 6. Nevertheless, there are factors
which should appear in clause 3 and are presently not obviously
apparent:
— assessing welfare is ultimately concerned
with outcomes; that is to say, the consequences for the animal
and its resultant state;
— the focus is on the individual: each
animal has its own welfare, and individual animals may respond
differently in similar circumstances; and
— welfare is essentially a scientific
concept, and in ensuring an animal's welfare, a keeper needs to
have due regard to established scientific knowledge.
20. Two further points. First, it is insufficient
to use the word "welfare" without qualification. An
animal's welfare can be good, bad, or indifferent; although the
clause is clearly intended to be about good welfare, this needs
to be specified. Second, although the Bill seeks to promote good
welfare, my understanding is that it is not intended to be overly
prescriptive or to require unrealistically high standards. The
wording needs to make this clearer, without undermining its effectiveness.
21. Care needs to be taken in the choice
of words adopted to ensure that they are appropriate. Although
concerned with the specific issue of broiler chickens' diets,
the manner in which the Court of Appeal analysed the wording of
the Welfare of Farmed Animals Regulations in the recent case of
R v Secretary of State for the Environment, Food and Rural
Affairs is instructive ([2004] All ER (D) 524, see especially
the observations of May LJ at paragraphs 40-43, and 49).
22. Finally, clause 3(1) is already commonly
being referred to as "the duty of care"; it would be
helpful if this concept were to be incorporated into the wording
of clause 3.
CLAUSE 4—SALES
TO PERSONS
UNDER 16
23. In supporting this provision, it is
relevant to mention that, despite some misleading reports when
the Bill was published, neither this clause nor clause 3(2)(c)
prevents a child from owning, being given, or assuming responsibility
for an animal. Rather, its effect is that, where an animal is
purchased, the transaction must be undertaken by an adult; and,
in law, an adult will be held responsible for the welfare of an
animal belonging to a child.
CLAUSE 6—REGULATIONS
TO PROMOTE
WELFARE
24. This clause is crucially important.
Not only does it permit flesh to be added to the bones of clause
3, thereby giving substance to the nature of the duty to ensure
an animal's welfare, but, by enabling this to be done using secondary
legislation, it will enable to the law to be amended and updated
much more easily than hitherto.
25. The scope of the enabling powers is
potentially very extensive. It is, however, necessary if the legislation
is effectively to provide adequate protection now and in the future.
26. It is appreciated that drawing-up, consulting
on, and presenting to Parliament regulations under this clause
represents a significant commitment in time and resources. It
is essential that the Department is adequately resourced for this
undertaking, if the legislation is to be successful.
CLAUSES 8 AND
9—CODES OF
PRACTICE
27. There is considerable merit in supporting
the "hard law" of clause 3 and regulations made under
the authority of clause 6 with further guidance. It is considered
appropriate to refrain from making the codes legally binding,
but rather, in accordance with established practice, to allow
contravention of them to be used as evidence of an offence having
been committed.
CLAUSES 11-14—ANIMALS
IN DISTRESS
28. The powers contained in these clauses
are supported as being essential to enable adequate protection
to be provided to animals which fall within its ambit. However,
given the nature of the power, the concept of "not properly
cared for" in clause 11(1)(b) and (c) requires further definition.
Consideration should be given to defining the grounds on which
a court may make an order under clause 11(8), and expressly to
include reference to the administration of drugs and any other
appropriate treatment in clause 12.
CLAUSES 15-20—ANIMALS
IN DISTRESS:
PROCEEDINGS PENDING
29. The wording of clause 15(2)(c) is different
from that of section 1(3)(e) and (f) of the Protection of Animals
(Amendment) Act 2000, in that the latter speaks of a prosecutor
becoming approved (1) "at the request of" the Department
or the National Assembly; and (2) by means of having entered into
a written agreement under which he may perform the functions conferred
on a prosecutor by virtue of the Act. In contrast, clause 15 simply
talks of a person being "authorised" by the appropriate
national authority.
30. The national authorities should be required
to publish the considerations they will take into account in authorising
a person to become an approved prosecutor, the terms on which
the authority is given, and the factors which might lead to the
authorisation being terminated and the powers removed.
CLAUSES 21-23—ANIMALS
KEPT FOR
FIGHTING
31. Fighting, it is submitted, is the most
serious offence against animals because it involves organised,
pre-meditated, intentional suffering for the purpose of pleasure
and profit. The sanctions it attracts should be correspondingly
harsh. Under clause 21(1) the power to take possession should
extend to any animal of which the person arrested is the keeper.
Consideration should be given to defining the grounds on which
a court may make an order under clause 21(7), and expressly to
include reference to the administration of drugs and any other
appropriate treatment in clause 22.
CLAUSES 24-34—POWERS
FOLLOWING CONVICTION
32. These clauses contain a number of new
provisions which have the potential to make enforcement much more
effective, and these are strongly supported.
33. However. it is not clear why, so far
as clause 25(1) and (2) relates to clause 2, deprivation is restricted
to an offence under 2(1)(g) and (h). Given the particular abhorrence
of the offence relating to fighting, it is submitted that the
power should extend to any offence committed under 2(1); and,
furthermore, apply to any animal of the relevant species owned
by the convicted person. Furthermore, there should be mandatory
deprivation for this offence.
34. In relation to offences under clause
1 and 3, the wording in clause 25(1) should be amended. The phrase,
"instead of or in addition to dealing with him in any other
way" suggests that deprivation is a form of punishment which
may be imposed as an alternative to a fine or imprisonment. It
should not be regarded as such. Deprivation should be seen not
as part of the punishment, but as an animal protection measure,
intended to prevent animals involve from the risk of abuse or
neglect. This should be made clear on the face of the Bill. The
same comment applies to the similar wording in clauses 25(3) and
26(1).
35. Any person convicted of an offence under
clause 2(1) should be subject to mandatory, lifetime disqualification
in respect of animals of the relevant kind.
36. The new duty placed on the court in
clause 27 to explain its decision is welcomed. However, while
it is accepted that the courts should (except in relation to offences
under clause 2(1)) retain a discretion to decide whether to impose
a deprivation or disqualification order, it is submitted that
this discretion should be severely limited. Emphasising the fact
that these are animal protection measures rather than part of
the punishment, the court should be required to give priority
to the interests of animal welfare and protection in deciding
whether or not to make a deprivation or disqualification order.
37. Clause 34(2) restates the present law.
It is unclear why a person against whom a disqualification order
has been made should be permitted to apply to have the it removed
after one year, and (if refused) annually thereafter. The principle
underlying this provision requires reconsideration.
38. Where a court decides to terminate or
vary the disqualification under clause 34(3), it should be given
the power do so, subject to such conditions as it thinks fit.
CLAUSE 44—INSPECTORS
39. The guidance referred to in clause 44(1)
should be equally applicable to the national authorities.
CLAUSE 55—GENERAL
INTERPRETATION
40. A definition of the term "private
dwelling" should be included.
FURTHER COMMENTS
41. First, it is desirable that the Bill
includes a specific power authorising a local authority to arrange
for another local authority to carry out its responsibilities
under the legislation.
42. Second, one would like to see on the
face of the Bill specific provisions intended to promote transparency.
In particular, there should be in relation to enforcement authorities
some form of reporting and recording of their activities. This
would provide an insight into the rigour, consistency, and competency
with which they are carrying out their responsibilities. It would
promote public accountability and, one would hope, confidence.
It would also identify shortcomings, and allow them to be addressed.
If this function were to be undertaken by Defra, it would be desirable
for an independent person or body also to be involved in the process.
CONCLUSION
43. This paper has focused primarily on
suggestions which, in the view of the author, would strengthen
the Bill's effectiveness in protecting animals, promoting their
welfare, and defining the extent of a keeper's responsibilities.
Because of the constraints on the length of the submission, considerably
less emphasis has been placed on the very valuable and significant
improvements to the law which are contained in the Bill. They
are extensive, necessary, and long overdue.
44. One would also wish to take this opportunity
to bring to the attention of the Committee the way in which the
Animal Welfare Bill Team have gone about preparing the Bill. In
particular, the degree of openness, participation, and consultation
with interested parties which they have encouraged is greatly
to be commended.
45. The Animal Welfare Bill represents a
once-in-a-generation opportunity to establish an effective and
durable legislative framework. It is greatly to be hoped that
the Committee will endorse the policies which it seeks to promote.
24 August 2004
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