House of Commons - Environment, Food and Rural Affairs

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

Supplementary memorandum submitted by Mike Radford Reader in Law, University of Aberdeen (A Personal Submission)

1. INTRODUCTION

1.1 This paper has been prepared for the Environment, Food and Rural Affairs Committee further to the author's original submission and his subsequent attendance to give oral evidence. It is intended to assist the Committee by focusing on a number of issues which have been raised during the course of its pre-legislative scrutiny of the Animal Welfare Bill.

2. WHY ANIMAL PROTECTION LEGISLATION IS ESSENTIAL

2.1 Under the common law, the legal status of animals is defined by reference to notions of property, in consequence of which the owner enjoys complete freedom to decide for himself how they should be treated and disposed of. It was exactly this freedom which the law gave to owners to abuse their animals which the nineteenth-century reformers sought to fetter through the introduction of animal protection legislation. As Lord Erskine pointed out to the House of Lords in 1809, "Animals are considered as property only: to destroy or abuse them, from malice to the proprietor, or with an intention injurious to his interest in them, is criminal; but the animals themselves are without protection; the law regards them not substantively".[2]

2.2 The effect of the body of protective legislation developed subsequently has been to qualify the common law freedom which allowed humans, especially owners and those acting under their authority, to treat other species in whatever way they saw fit. This situation has two important consequences.

2.3 First, it explains why the nature of statutory protection has traditionally been negative in character, proscribing what may not be done to an animal, rather than imposing positive duties which specify how the animal should be treated.

2.4 Second, none of the legislation relating to animals which has been introduced since 1822 has fundamentally altered the traditional legal status of animals. Rather, protective legislation regulates their treatment against the backdrop of the common law's principles; and wherever these are not superseded by legislation, they continue to apply. For example, because legislation does not in the main protect an animal's life, the owner retains complete discretion to decide for him- or herself whether it should live or die.

2.5 Legal regulation of the way in which animals are treated therefore continues to be essential in order to offset the otherwise unconstrained property rights of the owner under common law. If there were no animal protection legislation, we should return to the position under common law, and owners would once more have an unconstrained right to do whatever they wanted with their animals.

3. THE AMBIT OF THE ANIMAL WELFARE BILL

3.1 The existing body of legislation intended to protect animals in England and Wales may be broadly grouped under six heads, concerned, respectively, with:

(i) cruelty;

(ii) welfare;

(iii) regulation of activities;

(iv) regulation of professions (veterinary surgeons; farriers);

(v) wildlife; and

(vi) scientific procedures.

The ambit of the Animal Welfare Bill extends to (i), (ii), and (iii).

4. THE PROTECTION OF ANIMALS ACTS

4.1 The foundation of the present statutory regime is known collectively as the "Protection of Animals Acts",[3] which are predominantly (but not exclusively) concerned with cruelty.

4.2. The legislation which originally introduced the offence of animal cruelty was enacted in 1822, due largely to the efforts of Richard Martin MP,[4] and on each of the three subsequent occasions on which this body of law was consolidated with amendments, it fell to an individual MP to introduce and steer the measure through Parliament.[5] However, in view of the dominance of the executive over the modern House of Commons, and its command of the parliamentary timetable, it is clearly no longer realistic to look to the Private Member's Bill procedure to secure such an extensive and far-reaching measure. Indeed, it is significant that the last time such a strategy was successful dates back to before the First World War. Since then, as is evident from footnote number 2 above, changes have been made to the form and application of the Protection of Animals Acts, but these have been ad hoc and piecemeal in nature, and the basic structure remains unaltered in all essentials. The result is a legislative regime which is both unwieldy and increasingly anachronistic.

4.3 It is, of course, acknowledged that in recent years, a significant volume of primary and secondary legislation has been introduced (often in order to comply with the United Kingdom's obligations under European Union law) for the purpose of securing better regulation of the treatment of animals in particular circumstances. Thus legislation has been introduced in respect of, for example, animals: kept in zoos,[6] used in scientific procedures,[7] while at market,[8] kept for farming purposes,[9] while at slaughter,[10] or during transport.[11] The significance of this legislation is not to be under-estimated, but it all operates within the context of the Protection of Animals Acts, the provisions of which have general application to animals in all these situations (except for those used lawfully in accordance with the terms of the Animals (Scientific Procedures) Act 1986). Because of their overarching nature, the Protection of Animals Acts therefore have a particular importance. Moreover, very many animals fall outside any of these more recent legislative regimes, most particularly those bred for, and kept as, companion animals.

5. THE OFFENCE OF CRUELTY

5.1. Clause 1 of the Animal Welfare Bill seeks to redefine the offence of cruelty. In order to understand the form of the clause, it is useful to appreciate how the offence is presently defined.

5.2. The legal definition of animal cruelty is widely drawn, for the most part in very general terms, and the resulting versatility is undoubtedly its most advantageous characteristic. It can be applied to a wide variety of different situations, and enables courts to interpret the offence in the light of developing scientific understanding about the nature of animals' suffering and changing social attitudes as to their proper treatment. This versatility has been invaluable, and must not be lost in a redrawn definition of cruelty.

5.3 At present, cruelty is defined by reference to a number of separate and distinct courses of conduct, any one of which may form the basis for a prosecution. So, a person is guilty of an offence of cruelty if they:

(4) Cause, procure, or assist at the fighting or baiting of any animal.

Keep, use, manage, or act or assist in the management of, any premises or place for the purpose, or partly for the purpose of fighting or baiting any animal; or permit any premises or place to be so kept, managed or used.

5.4 Of the conduct expressly specified in sub-paragraphs (3) to (8) in the preceding paragraph, the Animal Welfare Bill;

— essentially preserves those relating to poisonous and injurious drugs and substances (as clause 1(7), (8)), and the performance of operations (as clause 1(9));

— preserves and extends the provisions relating to fighting and baiting (as clause 2);

— removes mention of cruelty caused by conveying or carrying an animal, tethering, or abandonment.

5.6 In addition, there is a new provision in relation to mutilations (clause 1(4), (5), (6)).

5.7 The practical significance of the offence of cruelty as defined under the Protection of Animals Acts is that, upon conviction, it enables the court to make a confiscation order (where it is the owner of the animal who is the offender), and/or a disqualification order. The Animal Welfare Bill provides the opportunity to extend this power beyond offences of cruelty.

5.8 This being the case, there is much to be said in the interests of clarity and simplicity to restrict Clause 1 exclusively to the definition of cruelty, and (as has been done with fighting and baiting) to place in separate clauses the provisions relating to: mutilations; poisonous and injurious drugs or substances; and operations. This would not prevent deprivation and disqualification orders being available for these offences, it would simply require an appropriate amendment to Clauses 25 and 26 bringing the new clauses within their ambit.

5.9 In relation to the courses of conduct specified in the present legislation, but not mentioned in the Bill (that is to say, conveying and carrying, tethering, and abandonment) their demise would seem to be acceptable, provided that the new definition of cruelty is sufficiently wide to encompass them.

5.10 Of the existing definition of cruelty, this leaves to be considered:

(1) Cruelly beating, kicking, ill-treating, over-riding, over-driving, over-loading, torturing, infuriating or terrifying any animal; and

(2) Wantonly or unreasonably doing or omitting to do any act causing unnecessary suffering to any animal

5.11 As the High Court has recognized,[20] all of the specific actions mentioned in sub-paragraph (1) above may also fall within the general terms of sub-paragraph (2). In general terms, sub-paragraph (1) adds nothing to the existing definition of cruelty, and is very seldom relied on in prosecutions. However, the mention of cruelty caused by "infuriating" or "terrifying" an animal clearly indicates that the offence extends to mental as well as physical suffering. Although such suffering may be difficult to establish beyond reasonable doubt, for the avoidance of doubt this element of the offence should be expressly retained in the new definition of cruelty.

5.12 So far so good. The remaining offence of cruelty is that committed by wantonly or unreasonably doing or omitting to do any act which causes an animal unnecessary suffering. Because of its general nature, the vast majority of prosecutions for cruelty are brought under this head. In considering this offence, it is important to recognise that it has three important components:

— it may be committed deliberately or intentionally ("wantonly"), or negligently ("unreasonably"). The latter is essential, as a very significant proportion of cruelty cases are due to neglect or negligence, rather than deliberate abuse;

— it must be shown beyond reasonable doubt that the animal was caused to suffer (this is a question of fact for the court); and

— the suffering is unnecessary.

5.12 The traditional test for determining whether suffering is unnecessary was laid down by the High Court in the Victorian case of Ford v Wiley.[21] First, it has to be asked whether the suffering was caused in furtherance of a legitimate purpose (what constitutes a "legitimate purpose" is for the court to determine). If the suffering was not for a legitimate purpose, then it is unnecessary. If, however, the court accepts that the reason for the suffering was legitimate, it then has to consider whether the degree of suffering inflicted was proportionate to the purpose for which it was caused. If it decides that, notwithstanding the legitimate purpose, the suffering was disproportionate, then it constitutes unnecessary suffering. This may seem to be a somewhat convoluted formula, but it has stood the test of time.

5.13 However, in 1993, without overruling the general principle laid down in Ford v Wiley, the High Court held that it was inappropriate in relation to the offence of cruelty arising from wantonly or unreasonably doing, or omitting to do, any act which causes an animal unnecessary suffering. Instead, in the cases of Hall v RSPCA[22] and RSPCA v Isaacs,[23] the High Court has held that "unnecessary" in this particular context (and only in this context) is to be interpreted to mean "not inevitable" or "could be avoided or terminated". This is because it is the only offence of cruelty which specifically includes the adverbs "wantonly or unreasonably" in relation to causing unnecessary suffering.

5.14 In Hall, Holland J held that considerations such as the reason for the suffering, together with its nature, intensity and duration are to be taken into account in determining whether the defendant acted unreasonably. It would be inappropriate, he said, to repeat this exercise in deciding whether the suffering was unnecessary. It is this which allows the court to equate "unnecessary" with terms such as "avoidable", or "not inevitable". According to Holland J, "unnecessary" is to be taken to mean that the statute "implicitly postulates that for an animal there may be suffering which is inevitable despite proper husbandry so as to be "necessary"', and the word therefore "seeks to distinguish as an element for a prosecution that suffering which is not inevitable; that suffering which could be avoided or terminated and is thus "unnecessary". Such a meaning cannot be applied to "unnecessary" in relation to the other offences of cruelty defined by reference to unnecessary suffering, which are made up of only two components: suffering, which is unnecessary. To do so would thereby making any suffering which was not avoidable or inevitable potentially illegal, regardless of its purpose, nature, duration, or intensity. While this might be welcomed by some animal welfare campaigners, it is clearly not the intention underlying the legislation.

5.15 Furthermore In Hall, a case involving alleged cruelty to pigs, Holland J, with whom Mann LJ agreed "unhesitatingly", held that the word "unreasonably" in the offence connoted "a purely objective test". It refers, he said, "not to a state of mind, but to a prevailing external standard so that a subjective input is essentially irrelevant". Applying this principle to the facts of the particular case, the appropriate objective standard against which to compare the defendants' conduct was that of "the reasonably competent, reasonably humane, modern pig farmer". Similarly, the same court applied an objective test in Isaacs, which arose from the failure of a dog owner to consult a veterinary surgeon. In these circumstances, the test applied by the court was whether a reasonably caring, reasonably competent owner would have made the same omission.

5.16 Uniquely, therefore, this particular offence of cruelty is made up of three separate components:

1. unreasonable conduct on the part of the defendant;

2. resulting in an animal suffering; and

3. that suffering being unnecessary.

5.17 Combining the court's interpretation of "unnecessary" with its view that "unreasonably" connoted an objective standard in relation to mens rea, the court posed three questions:

1. Did the pigs suffer?

— If yes,

2. was the suffering necessary "in the sense of being inevitable"?

— If no,

3. would a reasonably competent, reasonably humane modern pig farmer have tolerated such a state of suffering?

— If the answer is again no, the defendant is guilty of the offence.

5.18 The day following their decision in Hall, the same two judges applied an identical formula in Isaac. In these circumstances, the questions posed were:

1. Did the dog suffer?

— Yes.

2. Was the suffering inevitable, in that it could not be terminated or alleviated by some reasonably practicable measure?

— No.

3. Would a reasonably caring, reasonably competent owner have made the same omission?

— No.

5.19 As far as I am aware, it is intended that the Bill should preserve the existing meaning of cruelty. The reason for analysing it in detail is therefore threefold. First, it is important that members of the Committee understand this definition. Second, it may wish to consider whether maintaining the status quo is desirable. Third, if the answer to the previous question is in the positive, it is necessary to assess not only whether the present drafting of clause 1(1) and (3) together achieve this objective, but also whether its meaning is likely to be clear and certain.

5.20 Notwithstanding this issue, what can be confidently asserted is that the Bill succeeds in addressing the most significant shortcoming of the offence of cruelty. At present, except in relation to abandonment, an offence of cruelty is committed only after the animal has suffered. Such a situation has not only led to practical problems (when does an animal which is the subject of neglect and whose condition deteriorates over a period of time actually start to suffer?) but, more significantly, it has resulted too often in the legislation failing to protect animals from suffering; rather, it has merely enabled those responsible to be called to account after the event.

6. WELFARE

6.1 While changes to the Protection of Animals Acts have been relatively infrequent, there has evolved, especially since the end of the 1960s, a separate, but complementary, body of legislation, the effect of which has been to extend the legal duty we owe to animals beyond simply ensuring that they are not treated cruelly. Increasingly, it now also embraces an obligation specifically to have regard for their welfare. There are, however, animals—most notably companion animals—which do not benefit from such legislation.

6.2 To cause an animal to suffer unnecessarily, or to subject it to any other treatment which amounts to an offence of cruelty, is self-evidently detrimental to its welfare. To that extent, there is a degree of affinity between cruelty and welfare, but the two are far from being synonymous: prejudicing an animal's welfare does not of itself amount in law to cruelty. There are other important differences. An animal may or may not become the victim of cruelty during the course of its life, but every animal can be said to have a welfare, which persists for the duration of its existence. The state of this welfare will vary according to the circumstances which confront the animal, together with its physiological and behavioural response to them. In consequence, at any given time, the state of its welfare will be located on a point somewhere along a spectrum between very good at one end, indicating an excellent quality of life, and, at the other, so poor that it ultimately proves to be fatal. Welfare is therefore inherent to the individual, albeit influenced by external factors, whereas cruelty is something which is inflicted upon an animal as a result of the act (or omission) of, in law, a human being. Furthermore, cruelty is defined as much by reference to the attitude and behaviour of the perpetrator, and the object which he seeks to achieve, as it is by the effect upon the victim, while welfare is concerned exclusively with assessing the state of the individual animal. This involves taking account of influences which may be either positive or negative, while cruelty is concerned only with treatment that is deleterious. This distinction is reflected in the thrust of public policy. On the one hand, the intention is to prevent cruel treatment by proscribing particular forms of behaviour. On the other, the aim is to promote improved standards of welfare by identifying those matters which are important to animals, and translating these into rules, guidance and advice, to which those responsible for their care are required to have due regard.

6.3 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. Crucially, it fails to direct how animals ought to be cared for. In consequence, the concept of cruelty is not in itself sufficient to protect animals from inappropriate treatment, since there are many ways in which their standard of care may be less than satisfactory without it amounting in law to an offence of cruelty.

7. THE DUTY OF CARE

7.1 As the Committee is aware, the introduction of a statutory duty of care is widely regarded as the single most significant reform in the Bill. The effect is to translate into a legal duty the undoubted moral obligation on those who assume responsibility for an animal to care for it adequately. The duty is therefore closely associated with the developing concept of welfare. There is no new principle here; the measure extends to the generality of animals a requirement which already applies to certain classes of animals. Thus, Regulation 3(1) of the Welfare of Farmed Animals Regulations provides that;

Owners and keepers of animals shall take all reasonable steps;

(a) to ensure the welfare of the animals under their care; and

(b) to ensure that the animals are not caused any unnecessary pain, suffering or injury.

7.2 The problem with the provision as presently drafted in the Bill is that the nature and extent of this duty is unclear. The Welfare of Farmed Animals Regulations, for example, includes a series of Schedules which further define the matters to which a keeper is expected to have regard. These are general in character, but significantly more detailed than the present Clause 3. Furthermore, Regulation 3(3) lays down in succinct terms the importance of considering the specific needs of the particular animal by placing on owners and keepers a responsibility to have regard "to their species, and to their degree of development, adaptation and domestication, and to their physiological and ethological needs in accordance with established experience and scientific knowledge".

7.3 Without in any way wishing to detract from the significance of Clause 3, if it is to be effective, it requires significant re-drafting.

8. THE CONCEPT OF "KEEPER"

8.1 I have been asked by a member of the Committee to explain the origin of the concept of "keeper" in the Bill. The answer is that it is to be found in the Welfare of Farmed Animals Regulations, under Regulation 2(1) of which the term "keeper" is defined to mean "any person responsible for or in charge of animals whether on a permanent or temporary basis". This is a further example of the Bill extending the application an established principle

9. REGULATIONS TO PROMOTE WELFARE

9.1 The provisions of Clause 8 are also essential to the policy underlying the Bill. Nevertheless, one is well aware that concern has been expressed about the scope and extent of the power to make regulations which would be placed into the hands of the Secretary of State and the National Assembly for Wales.

9.2 I think there is some merit in such reservations, but I would reiterate that I do not consider the problem lies with Clause 6; the shortcoming is again in the drafting of Clause 3. According to Clause 6(1), the enabling power would be granted by Parliament "for the purpose of promoting the welfare of animals kept by man". The means of restricting the national authorities' discretion is to define further what is meant by "welfare". In particular, it would be helpful if it could be defined, at least in part, by reference to some objective standard. A starting point might be the phrase quoted above, and which already appears in several pieces of domestic and European legislation, namely, animals' "physiological and ethological needs in accordance with established experience and scientific knowledge". Furthermore, it is important to appreciate that assessing an animal's welfare focuses on the outcomes of its care, treatment, and environment, and this should be reflected in the statutory provisions.

9.3 I am aware that the Committee is concerned about the potential impact of Clause 6 on farming. To this end, I would emphasise that the wording of Clause 6(2) and (3) does not, in my view, represent an extension of enabling powers in relation to farming and associated activities. The Committee will be aware that there is already in existence an extensive body of secondary legislation relating to animals when kept for farming purposes, during transit, while at markets, and at slaughter. These are made under the authority of, variously, the Agriculture (Miscellaneous Provisions) Act 1968, the European Communities Act 1972, and the Animal Health Act 1981. What is proposed in the Bill is that such secondary legislation should in future be made under the authority of the Animal Welfare Act. It will not, I think, change the nature of the measures which are thereby introduced.

10. THE EXTENSION OF PUBLIC REGULATION

10.1 Clause 6 provides for the possibility of a significant extension of public regulation over activities involving animals. Again, there is no new principle here. There already exists a surprising degree of public regulation in this area. Indeed, it is not widely appreciated that, in relation to commercial and professional activities involving animals, some form of licensing, certification, or registration is now the norm in Britain. The problem is that it is not universally effective, and the Bill attempts to make provision to address such problems.

10.2 To require an activity to be licensed, certificated, or registered is not only of practical importance, it is also of great symbolic significance. The consequence is that there is no longer an unfettered freedom to engage in it. In effect, it may only be carried on lawfully with the consent of the State. In relation to animals, this not only represents a major qualification to the traditional common law right of an owner to do as he wishes with his property, but it may also permit the regulating authority to impose specific conditions, monitor standards and performance, insist on necessary improvements and, ultimately, to revoke the authorization or refuse an application for its renewal.

10.3 The effectiveness of these regulatory regimes is, however, always dependent on the legislative provisions which govern the particular scheme and the rigour with which they are enforced, and it is significant that there is considerable variation in their operation and the conditions they impose on those to whom they are directed. In the main, the nature of each scheme is largely a reflection of the attitudes which prevailed at the time when it was originally enacted. Some, such as those relating to performing animals and pet shops, pre-date the modern concept of welfare, and clearly require updating; more recent provisions, such as those which govern farm animals and transport, have been greatly influenced by contemporary perceptions of an animal's needs, particularly those factors represented by the Five Freedoms (although many would argue that these continue to be compromised to an unacceptable degree in the face of commercial pressures). In consequence, the degree of legal regulation varies considerably, depending upon when and why the particular legislation was originally introduced.

10.4 It is equally important that such schemes should be reformed in order to make them more effective. For example, the single qualification for entry on to the register for those who train or exhibit performing animals is the payment of any fee that may be levied. So long as such money is forthcoming, the authority has no discretion in deciding whether the person should be registered; the statute fails to provide it with any power to refuse or revoke registration, or even impose conditions. To take any of these measures requires a court order, and this may only be granted if the person concerned is found to have been guilty of cruelty.[24] In submitting an application for registration, the information an applicant is required to provide consists of nothing more than particulars of the animals involved and the general nature of the performances for which they are to be trained.[25] The scheme has no provision allowing an authority to specify standards which must be met. Indeed, the degree of regulation under the Act is so inadequate that its contribution to animal protection is negligible.

10.5 In relation to the licensing of pet shops, animal boarding establishments, and dangerous wild animals kept in captivity, the local authority does have a discretion whether or not to grant the licence. In reaching its decision, it must have regard to a number of specific factors, including the suitability of accommodation, the provision of food and drink, precautions against the spread of diseases, and arrangements in the case of fire or other emergency. Where it grants a licence, the authority is required to specify such conditions as it considers necessary or expedient for securing these objects.[26] However, in none of these cases do authorities have the power to impose conditions which fall outside the objects expressly mentioned.

10.6 It is widely acknowledged that a key factor influencing the treatment of domestic and captive animals is the attitude of those who are responsible for them, yet few of the licensing schemes administered by local authorities specify this to be a relevant consideration.

10.7 In determining whether to grant a licence for the keeping of a riding establishment, a local authority must have regard to whether the applicant appears to be suitable and qualified to be the holder of such a licence, either by experience in the management of horses or by having obtained an approved certificate (or by employing such a person),[27] and an applicant for a licence to keep a dangerous wild animal must demonstrate that he is a suitable person.[28] However, there is no specific legislative provision requiring authorities to take account of the competence of applicants in relation to licences for pet shops, boarding establishments, or dog breeding establishments, although the (voluntary) model standards for pet shop licence conditions produced under the auspices of the Local Government Association recommend that no animal should be stocked or sold unless at least one member of staff is familiar with its care and welfare, and has a recognized qualification or suitable experience. In respect of new pet shop applications, it is suggested that at least one member of staff should hold a City and Guilds Certificate in Pet Store Management, or some other appropriate qualification or, alternatively, to be in the course of training for such a qualification, which must be obtained within two years of the licence being granted. These unofficial conditions also suggest that each licensee must formulate a written training policy for all permanent staff, and be required to demonstrate that systematic training is in fact carried out.[29]

10.10 It is apparent that many of the older licensing schemes, particularly those concerned with companion animals, are in urgent need of updating. Their provisions fail to reflect modern notions of welfare, and do not contain appropriate provisions to enable licensing authorities adequately to ensure the interests of the animals involved. The general nature of the criteria they specify gives no guidance on the detailed requirements which it is appropriate for local authorities to demand. Moreover, there is no provision in the legislation to introduce mandatory or advisory standards by means of regulations or codes of guidance. As a result, it is left to each individual authority to define the standards it considers to be appropriate, which may lead to considerable variation between different areas. In addition, there may be genuine uncertainty as to the extent of an authority's power in specifying conditions. Notwithstanding that in relation to pet shops, animal boarding establishments, riding establishments, and dog breeding establishments, the licensing authority is required to specify such conditions in the licence as appear to it to be expedient for securing the stated objects, the respective legislation provides no explicit power to impose conditions which go beyond these.[30] This is in contrast to the Dangerous Wild Animals Act 1976, for example, which, in addition to requiring an authority to impose such conditions as in its opinion are necessary or desirable for securing the objects expressly identified in the legislation, also provides it with a wide discretionary power to specify such other conditions as it thinks fit.[31]

10.11 If legislation to protect animals is to be effective, it must be adequately enforced. This means more than merely bringing alleged offenders before the courts. Prosecution is an integral part of the process, but represents the option of last resort. The ambit of enforcement is far wider, and includes the need to ensure:

— the various regulatory schemes prescribed by the European Community, the national Parliament, and, where appropriate, the Scottish Parliament and the Welsh Assembly, are duly implemented;

— those to whom legislation applies are mindful of the nature and extent of their legal responsibilities;

— the treatment of animals meets the standards required by the relevant legislation;

— advice and guidance is made available as to how the care of animals might be improved to meet those standards; and

— in circumstances where this proves to be ineffectual, the appropriate authorities exercise the powers which are available to them in order to make certain that the welfare of the animals does not continue to be compromised.

10.12 Statutory responsibility for implementing and enforcing animal protection legislation falls to a number of different agencies, which vary considerably in the nature of their functions and mode of operation. The State Veterinary Service, for example, is a specialist body, having a specific remit and staff with training and experience which is relevant to their particular duties. In contrast, for the police, animal law forms only a very small part of their general duty to enforce the criminal law and investigate the commission of offences. It is, however, local authorities which have the most extensive statutory responsibilities for enforcing animal protection legislation. Thus, it is they who are charged with registering those who train or exhibit animals; administering the licensing of pet shops, animal boarding establishments, riding establishments, dog breeding establishments, dangerous wild animals kept in captivity, and zoos; as well as being responsible for enforcing the legislation appertaining to markets and transport.[32] Yet no objective and informed assessment has been made of how effectively they carry out these duties.

10.13 This raises an important issue. In the same way that those to whom animal protection legislation is addressed are required to meet the obligations imposed upon them, so too are the agencies charged with its enforcement. Not only does inadequate enforcement on the part of a public body undermine the purpose of the legislation, it also damages public confidence in the law's ability to ensure proper protection for animals in accordance with the will of Parliament. It is therefore essential that those whom statute charges with responsibility for enforcement are accountable for the way in which they carry out their duties and exercise their powers, and are seen to be independent of those whose activities they oversee.

10.14 Apart from the most basic summary provided each year in the Chief Veterinary Officer's Annual Report, there is little detailed information about how the SVS routinely goes about its business. However, it is important that such data should be available, in order that the public may be assured that the SVS is acting in a way which is consistent and effective. If the public is to have confidence in the SVS's credibility it is incumbent on the organization to demonstrate its independence, objectivity, and determination to ensure high standards of welfare in relation to those activities which fall within its jurisdiction. There needs to be, for example, evidence that the SVS carries out a planned, comprehensive, and regular programme of farm inspections, as well as responding to ad hoc complaints from the public; the application of consistent standards throughout the country; and information about the action taken when the welfare of animals is found to be unsatisfactory.

10.15 Information about the way in which local authorities exercise their administrative and enforcement powers under the relevant legislation is sparse, sporadic, and unreliable. It is therefore impossible to provide an informed assessment of their performance. As the House of Commons Agricultural Committee observed in 1991:

10.16 FAWC recommended in 1990 that each local authority should appoint an "Animal Welfare Officer", who would assume overall responsibility for animal welfare, assisted by a nucleus of full-time staff dedicated to this area of work, and whose existence, the Council suggested, should be publicized, with a view to making them more readily identifiable and easily accessible to the general public. It emphasized the importance of local authorities giving what it described as "proper priority" to animal welfare by devoting adequate resources to enforcement and training. The Council recommended that local authorities "should ensure that their inspectors are fully trained and competent in animal welfare", and went on to suggest that shared training course for all the statutory enforcement agencies should be introduced "with a view to standardization of enforcement".[34] More recently, the Council has called on the Government to provide detailed guidance to local authorities in order to clarify and emphasize their responsibility for enforcement. According to FAWC, such a document would "serve as a reminder to authorities of their responsibilities, that they are a major component of the enforcement framework and that they should devote sufficient resources to animal welfare".[35]

10.17 The current arrangements fail to ensure that those carrying out inspections are properly equipped for the task. In relation to pet shops, boarding establishments, and dog breeding establishments. for example, the local authority may authorize any of its officers (generally those involved with environmental health) or any veterinary surgeon to carry out the inspection.[36] There is no specific requirement that those involved should have any particular expertise in animal welfare science or the relevant law. The same situation applies in relation to local authority officers who may be required to undertake the inspection of a riding establishment. However, in this case, a veterinarian carrying out an inspection of such premises on behalf of the authority must be one chosen by them from a list drawn up jointly by the Royal College of Veterinary Surgeons and the British Veterinary Association.[37] Inspections carried out in connection with the keeping of dangerous wild animals may be undertaken by any veterinary surgeon or such other person as the local authority may deem competent (although the nature of the competence is not specified).[38]

10.18 In the interests of both consistency and effectiveness, it is desirable that the law should require those enforcing its provisions to be able to demonstrate an up-to-date knowledge and understanding of the relevant legislation, the nature and extent of the legal powers they are exercising, and the developing science of animal welfare. Furthermore, there is no express requirement in any of these schemes that where a veterinarian conducts the inspection, they must be unconnected with the licensee. In order to avoid any conflict of interest, a local authority should be required to ensure that any such veterinarian is completely independent of the applicant or licence holder (although that would not necessarily prevent the licensee's vet being present when the inspection took place).

10.19 In 1990, FAWC recommended that local authorities should ensure that their inspectors are fully trained and competent in animal welfare, and that shared training courses for all statutory enforcement agencies might be introduced to promote standardization of the way in which they carry out their duties.[39] Unfortunately, consistency remains a problem. The Council has subsequently reiterated that there remains "a serious lack of uniformity" in the application and enforcement of animal welfare legislation. In its view, if enforcement is to be effective:

10.20 In order to ensure the effectiveness of animal protection legislation, it is necessary to provide sufficient and appropriate powers to enable the treatment and care of animals to be effectively monitored so as to identify problems and seek improvements; to promote best practice and thereby raise welfare standards further; and, where the need arises, to obtain the evidence necessary to pursue formal action against those who fail to meet their legal responsibilities. "Securing compliance with prescribed standards, whether by persuasion or compulsion", the House of Commons Agriculture Committee observed in 1981, "depends in the first instance on efficient inspection and detection".[41]

10.21 One of the major advantages of a (well-drafted) statutory licensing scheme is that it provides for routine mandatory inspections by those with the relevant knowledge and expertise. In practice, however, the extent of these powers varies considerably, depending upon the context.

10.22 Thus, a local authority may require an inspection of any licensed pet shop, or animal boarding establishment situated in their area, for which purpose a person duly authorized by the authority may enter the premises (including a private dwelling) at all reasonable times and inspect them and any animals found there.[42] However, the frequency and manner of such inspections is left entirely within the discretion of each individual authority. Furthermore, while it is incumbent on the licensing authority to satisfy itself of a number of matters before initially granting a licence, which will normally necessitate an inspection, there is no express legal requirement to this effect. Neither is there any specific duty to carry out an inspection prior to the annual renewal of such a licence.[43] By way of contrast, in addition to similar general powers of inspection while a licence is in force,[44] a local authority is required to take account of a report of an inspection carried out on their behalf by a veterinary surgeon, before deciding on an application for a licence to keep either a riding establishment or a dangerous wild animal. In both cases, the report must contain appropriate information to enable the authority to determine whether the premises are suitable.[45] It is specified that a riding establishment must be inspected either following receipt of the licence application or, alternatively, at some time in the preceding twelve months.[46] As each such licence is subject to annual renewal,[47] the effect of this provision is to require the premises to be inspected prior to the first licence being granted, and at least once a year thereafter, whereas the provisions relating to dangerous wild animals specify only that the licensing authority must consider a veterinarian's report before reaching a decision.[48] In consequence, although the premises must be inspected prior to the initial grant of the licence, and notwithstanding that it too lasts only for a year,[49] the same report may theoretically be relied upon when it comes up for renewal, thus avoiding the need for annual inspection.

10.23 Ideally, legislation should impose a duty that the premises covered by each of these licensing schemes must be inspected prior to the grant of the initial licence, and at least once a year thereafter, not more than four and less than three months prior to the date on which the licence is due for renewal.

10.24 The requirements applying to dog breeding establishments were formerly the same as for pet shops and boarding establishments, but annual inspections are now mandatory. If a dog breeding establishment licence has not previously been granted to the applicant in respect of the premises, the inspection must be carried out by a vet and a local authority officer. In the case of subsequent applications for renewal of the licence, the inspection may be carried out by a vet or a local authority officer, or both. In either case, before reaching its decision, the authority must consider a report from the inspector(s) about the premises, the applicant, and any other relevant matter.[50]

10.25 A further weakness of the licensing schemes for pet shops and boarding establishments is that the relevant legislation fails to provide the necessary powers for an enforcement authority to enter unlicensed premises which it has reason to believe are being used for either purpose. The same situation previously applied in respect of an unlicensed dog breeding establishment. Now, however, except in the case of a private dwelling, a justice of the peace may, if satisfied that there are reasonable grounds for suspecting that unlicensed premises are, or have been, used for such a purpose, issue a warrant authorizing a local authority officer or their nominated veterinary surgeon, accompanied by anyone else specified in the warrant (members of the RSPCA inspectorate, for example) to enter those premises, by reasonable force if need be, and to inspect them and any animals found there.[51] It is unclear why it is considered necessary to obtain a warrant in these circumstances, when statute provides local authorities with the inherent power to inspect unlicensed premises which they have reason to believe are being kept as a riding establishment without first having to obtain the leave of the court.[52]

10.26 Ultimately, it may be necessary to have recourse to the courts in order to ensure that animals are properly treated. However, prosecution is only appropriate, or desirable, in the most serious of cases. Even then, the procedure is uncertain, cumbersome, costly, and slow. Most importantly, if prosecution is the only formal option, enforcement authorities too often have to bide their time while the condition of the animal(s) deteriorates, and an offence is eventually committed, before they can initiate formal proceedings. In the interim, all they can do is to attempt to achieve improvement through persuasion. Such a situation is clearly unsatisfactory. It undermines the effectiveness of the legislation and, crucially, results in needless suffering and continuing poor welfare. Wherever possible, therefore, it is desirable that enforcement agencies should be equipped with administrative powers which they can use to intervene at an early stage and thereby secure an early improvement in the situation. Some of the statutory licensing schemes—such as those which apply to the keeping of dangerous wild animals, zoos, scientific procedures, and slaughtermen—go some way to achieving this by giving the licensing authority the power administratively to vary and/or revoke a licence.[53]

10.27 A welcome development in this regard has been the introduction of statutory improvement notices. For example, where an inspector considers that animals are being transported, or are about to be transported, in a way which is likely to cause injury or unnecessary suffering, or in any other way which contravenes the transport legislation, they may serve a notice on the person appearing to be in charge of the animals, requiring them to take any necessary action to ensure compliance with the law. Similarly, where an authorized person considers that farmed animals are being kept in a way which is likely to cause unnecessary pain, suffering or injury, or in any other way which contravenes the welfare regulations, they may serve a notice on the person appearing to be in charge of the animals requiring them, within the period stated in the notice, to take any action which is reasonably necessary to ensure compliance with the regulations. In the absence of a lawful authority or excuse, failure to comply with such a notice constitutes an offence.[54] This is an entirely positive development. Consideration should be given to extending the availability of such improvement notices generally in relation to all cruelty and welfare legislation.

10.28 The only circumstance in which statute provides that an animal can be seized solely in the interests of animal protection is where a person having charge of it is arrested by a police constable for an offence of cruelty. In these circumstances the police (but only the police) may take charge of the animal(s) and deposit them in a place of safe custody until the termination of any legal proceedings or the courts order their return.[55] If the matter goes to trial, it takes several months for the case to be resolved, and there is always the possibility of further delay arising from procedural complications or a subsequent appeal. Unless the owner voluntarily relinquishes ownership in the meantime, the animal remains their property, and cannot therefore be rehomed. Furthermore, where significant numbers of large animals are involved, such as might be the case where the allegation of cruelty is against a farmer, looking after the animals in the interim can present very real logistical difficulties. In an attempt to address this problem, provisions have recently been introduced authorising courts in England and Wales to make an order for the disposal of animals kept for a commercial purpose while proceedings for cruelty against the owner remain outstanding.[56]

10.29 Licences relating to pet shops, animal boarding establishments, riding establishments, dog breeding establishments, and for the keeping of dangerous wild animals, are each granted for a year, and must be renewed annually.[57] Only in the case of a riding establishment may a provisional licence (for three months, renewable for a further three months) be issued if the local authority considers that the circumstances warrant it.[58] In each case, the licence may be cancelled only by a court, and in circumstances where the licensee has been convicted of an offence against the relevant Act; or, with the exception of a licence for a dog breeding establishment, a conviction under one of the associated licensing schemes, or an offence of cruelty under the Protection of Animals Acts.[59] In other words, the licensing authority itself cannot revoke these licences. Furthermore, it is only in relation to the keeping of a dangerous wild animal that a local authority may vary or revoke the conditions attached to a licence while it is in force;[60] in all other cases, the original conditions remain unaltered until the licence expires, except if a court orders otherwise.

10.30 Registration under the Performing Animals (Regulation) Act 1925 normally remains in force indefinitely. The only way in which conditions may be imposed on the training and exhibition of performing animals, or a person prevented from undertaking such activities, is by means of a court order, which is obtained by a constable or local authority officer applying to the court and satisfying it that the training or exhibition of a performing animal has been accompanied by cruelty.[61] Alternatively, a court which convicts a person of an offence against either the 1925 Act itself, or the Protection of Animals Act 1911, as amended, may order their name to be removed from the register permanently, or for such time as the court determines.[62]

11. THE MEANING OF "ANIMAL"

11.1 The Protection of Animals Acts apply only to domestic and captive animals. The expression "domestic animal" means any horse, ass, mule, bull, sheep, pig, goat, dog, cat, or fowl, or any other animal of whatsoever kind or species, and whether a quadruped or not which is tame or which has been or is being sufficiently tamed to serve some purpose for the use of man. The expression "captive animal" means any animal (not being a domestic animal) of whatsoever kind or species, and whether a quadruped or not, including any bird, fish, or reptile, which is in captivity or confinement, or which is maimed, pinioned, or subjected to any appliance or contrivance for the purpose of hindering or preventing its escape from captivity or confinement.[63] At present, the offence of cruelty applies only to domestic or captive animals; it does not extend to animals living in the wild.[64]

11.2. Notwithstanding these general definitions, the offence or cruelty does not apply:

— to any act lawfully done under the Animals (Scientific Procedures) Act 1986;

— to the commission or omission of any act in the course of the destruction, or the preparation for destruction, of any animal as food for mankind, unless such destruction or such preparation was accompanied by the infliction of unnecessary suffering; or

11.3 By way of contrast, the Welfare of Animals Act (Northern Ireland) 1972 defines "animal" so far as it applies to the offence of cruelty expressly to include birds, fish and reptiles (mammals are not mentioned, but clearly fall within the meaning of the word by implication), regardless of whether it is domestic, captive or wild.[66] Like the 1911 Act, the legislation has the same three exclusions to the offence of cruelty referred to in the previous paragraph.[67]

11.4 Returning to the 1911 Act, it will be recalled that the statutory definition of a captive animal turns on captivity or confinement. It has been judicially observed that "What the difference between captivity and confinement is no one has been able to say. Confinement, no doubt contemplates some outside barrier confining the animal, while captivity may or may not mean much the same."[68] In any event, the terms have been interpreted extremely narrowly. For example, a beached whale, stranded alive on the foreshore, which was attacked by a person with a knife, was not protected by the Act because the court considered that captivity or confinement "means something more than temporary inability to get away from a particular spot".[69] On the same basis, a wild stag which, while being hunted, jumped over a hedge into a road, slipped on the tarmac, and fell under a stationary van from which it was dragged by a group of men into a nearby enclosure and killed with a knife, was not considered to be captive within the meaning of the legislation; nor a hedgehog which was repeatedly beaten with a stick and reacted, as hedgehogs do, by rolling itself into a ball rather than running away; nor a rabbit which was covered by a coat on the ground so as to prevent its escape and then kicked and hit with sticks until it was fatally wounded; nor a fox which, the court acknowledged, had been "restrained in [a] land drain for a significant period of time".[70]

11.5 According to the courts, what Lord Parker CJ described in the leading case of Rowley v Murphy as "mere captivity" is not in itself sufficient to bring an animal within the protection of the 1911 Act. Rather, "some period of time during which acts of dominion are exercised over the animal, is necessary before the animal can be said to be in a state of captivity".[71] In consequence, it has been held that the statutory provision "maimed . . . for the purpose of hindering or preventing its escape from captivity or confinement" does not apply in circumstances where the accused had injured a wild animal so seriously that it could not escape; the term only applies to animals which are already in captivity before the alleged offence is perpetrated. The same court rejected the contention that beating the animal amounted to exercising an act of dominion over it.[72] Similarly, where a hunted fox had gone to ground in a culvert, was unable to escape, and remained trapped while preparations were made to send down a terrier to flush the animal out, whereupon it would be shot, the court held that "the continuing restraint in this case was incidental to the attempt at capture and the capture itself". In the opinion of Pill LJ, "the fox was temporarily restrained with a view to it being killed", with the result that "it never passed into the state of captivity contemplated by the 1911 Act as construed in Rowley v Murphy".[73]

11.6 The rationale for the approach adopted in the Rowley case is based on a reading of the Wild Animals in Captivity Protection Act 1900, which was repealed and replaced by the 1911 Act. Section 2 of the former made it an offence to cause an animal unnecessary suffering while it is "in captivity or close confinement, or is maimed, pinioned, or subjected to any appliance or contrivance for the purpose of hindering or preventing its escape from such captivity or confinement". According to Lord Parker CJ:

It seems to me that certainly when one looks at the title of that Act . . . the natural meaning is that the Act applies to animals which are reduced to a state of captivity in the ordinary sense of the word or to a state where there is something more than mere capture.

11.7 It is to be observed that section 15 of the Act of 1911 follows exactly the words of section 2 of the Act of 1900 in regard to its definition of "captive animal" save only that the words "close confinement" in the Act of 1900 have become merely "confinement". If, however, as would appear to be the case, the Act of 1900 is clearly referring to something more than a merely captive animal, but to an animal reduced to a state of captivity in consequence of some further act or acts of domination, then it would seem that there is no reason to give the words in section 15 of the Act of 1911 any different meaning.[74]

11.8 Although the lacuna in statutory protection caused by this decision has, to some extent, been filled by the Wild Mammals (Protection) Act 1996, it is submitted that the attitude of the courts is over-restrictive. Pauline Todd has argued that they are constrained by the technical rule in English law to the effect that, where the wording of a new Act simply reproduces the wording of a previous Act, a court should assume that Parliament does not intend to alter the meaning of those words. Consequently, she suggests, the courts have been "obliged to interpret the word "captive" in the same way as it had been interpreted under the old legislation".[75]

11.9 It is not apparent from the law report, however, that any authorities decided under the 1900 Act were cited in the above cases. If this is so, the courts did not have before them any indication of the way in which the earlier Act had been interpreted. Certainly, the remarks of Lord Parker CJ appear to be speculative rather than based on any established precedent. Indeed, his opinion was that "there is really no case to which this court has been referred which is of any real assistance", and he based his decision on the well-established general principle that, if ambiguous, "then this section being a penal one must be strictly construed in favour of the defendant".[76] It is difficult, therefore, to see that the courts were bound by existing caselaw.

11.10 Furthermore, for the courts to draw pedantic judicial distinctions between, for example, "in captivity" meaning a state of captivity" on the one hand, "and the fact of being a captive, ie, subject temporarily to restraint by human beings"[77] on the other, is not only overly legalistic, it also ignores the rationale of the statute, which would seem to be based on the principle that, where humans assume power over an animal, they have a duty not to abuse it. The judicial gloss applied to ordinary words, so that "The mere fact that an animal has been captured does not by itself make that animal one which is in captivity"[78] is both unnecessary and undesirable. It needlessly complicates the law and serves to frustrate the purpose of the legislation which is, after all, to provide protection for animals. Wherever the everyday meaning of a word is in accordance with the intention underlying the legislation, that is the meaning it should be given. On this basis, the important consideration is not the subtle nuances of "captivity" and "in captivity"; it is that the animal is either unable to escape, or is prevented from doing so of its own accord, as Fenton Atkinson J appreciated in suggesting that "there was very much to be said for the view that, once a wild animal had been captured it was in captivity on the plain meaning of the word".[79] The traditional, much more restrictive interpretation is, however, so well entrenched as a precedent that there is no reasonable prospect of persuading the courts to disregard it. In two recent cases, the English High Court has emphasized that it is bound by the decision in the Rowley case;[80] a broader meaning, as suggested by Fenton Atkinson J, can probably now be achieved only by means of legislation.

12. THE ROLE OF THE RSPCA AS PROSECUTORS

12.1 The Bill has engendered discussion in some quarters about the role of the RSPCA, especially in relation to enforcement.

12.2 For the avoidance of doubt, in investigating alleged complaints, the Society does not possess any statutory power to enter, search or seize property. Its position is exactly the same as that of the private citizen. The Bill does not propose to provide it with any additional powers in this regard. Accordingly, its position will remain exactly the same as it is at present.

12.3 So far as the ability to prosecute is concerned, the RSPCA has been undertaking this responsibility since it was established in 1824. In so doing, it is not exercising power provided to it under statute, but is relying on the common law right which any one of us has to enforce the criminal law. Parliament has never seen fit to endow the RSPCA with special powers, and neither so far as I am aware has the Society sought such powers. The Bill will therefore preserve the status quo.

12.4 Further confusion may have been engendered by the provisions of Clause 15(2)(c), which alludes to "a person authorised by the appropriate national authority to perform the functions of a prosecutor" under Clauses 16 to 19. These provisions echo those relating to prosecutions involving animals kept for a commercial purpose under the Protection of Animals (Amendment) Act 2000. It should be recognized that "the functions of a prosecutor" in this context do not apply to prosecuting in general, but rather to the very specific power to apply to a court before the conclusion of proceedings to obtain an order for the disposal of animals which have been seized. In other words, the particular power is restricted to seeking an order of the court, and the final decision of whether to accede to the request lies, of course, exclusively with the court.

13. INSPECTORS

13.1 Similar confusion has arisen in connection with the term "inspector", which is used extensively throughout the Bill. While the term is generally appropriate, a misunderstanding has arisen because in the field of animal protection legislation, "inspector" is synonymous with the RSPCA inspectorate. In the circumstances, there may be merit in substituting another phrase—such as "authorised officer"—for "inspector".

14. DEPRIVATION AND DISQUALIFICATION ORDERS

14.1 Under the Protection of Animals Acts, the courts have the power, upon conviction, to make an order depriving a person of ownership of the relevant animal(s) where it is the owner who is convicted; and, in any case of cruelty, to disqualify the offender from having custody of animals in general, or of a particular type of animal or animals for so long as the court specifies.

14.2 Four problems may be identified. First, the court has complete discretion to decide whether to make such an order. Second, if it declines to do so, it does not have to give any reason for its decision. Third, such an order may be made, in the words of the legislation, instead of or in addition to any fine or term of imprisonment which the court might impose, giving the impression that confiscation and disqualification are part of the punishment. Fourth, in the case of a disqualification order, no matter how long its duration, the person against whom it is made may apply annually to the court to have it terminated.

14.3 The Bill addresses one of these issues: where a court refuses to make a relevant order it will be required to give reasons, but the other three remain outstanding. In particular, these orders should be regarded as animal protection measures, and the wording of the legislation should reflect this by distinguishing deprivation and disqualification orders from the imposition of fines and imprisonment. Furthermore, the discretion of the court should depend on the nature of the offence: in the case of fighting and baiting, for example, there should be an automatic lifetime ban in relation to the class of animals involved in the offence, and a presumption of a ban in relation to all other animals.

15. TAIL DOCKING OF DOGS

15.1 There has been considerable discussion about tail docking of dogs in during the course of oral evidence to the Committee. It may be helpful, therefore, to explain the present position.

15.2 Since 1 July 1993, it has been unlawful for any person other than a veterinary surgeon to dock a puppy's tail.[81] Against this background, the Royal College of Veterinary Surgeons has included the following statement in an annex to its Guide to Professional Conduct:

"RCVS Position

Leading Counsel has advised:

1. Docking, which may be defined as the amputation of the whole or part of a dog's tail has, since July 1993, been illegal under UK law, if performed by a lay person.

2. The Royal College has for many years been firmly opposed to the docking of dogs' tails, whatever the age of the dog, by anyone, unless it can be shown truly to be required for therapeutic or truly prophylactic reasons.

3. Docking cannot be defined as prophylactic unless it is undertaken for the necessary protection of the given dog from risks to that dog of disease or of injury which is likely to arise in the future from the retention of an entire tail. The test of likelihood is whether or not such outcome will probably arise in the case of that dog if it is not docked. Faecal soiling in the dog is not for this purpose a disease or injury, and its purported prevention by surgical means cannot be justified.

4. Similarly, docking cannot be described as prophylactic if it is undertaken merely on request, or just because the dog is of a particular breed, type or conformation. Council considers that such docking is unethical.

5. Docking a dog's tail for reasons which are other than truly therapeutic or prophylactic is capable of amounting to conduct disgraceful in a professional respect. In the event of disciplinary proceedings being brought in respect of tail docking, it shall be open to the RCVS by evidence to prove, and to the Disciplinary Committee on such evidence to find, that any therapeutic or prophylactic justification advanced for the docking in question is without substance. If such a finding is made, the Disciplinary Committee may proceed to consider and to decide whether in the circumstances the veterinary surgeon who undertook that docking knew, or ought to have known, that such purported justification is without substance.

6. For the avoidance of any doubt, any instance of tail docking which is found to have been undertaken for reasons which were not truly therapeutic or prophylactic will necessarily constitute an unacceptable mutilation of the dog, which, if carried out by a veterinary surgeon who knew or ought to have known of the lack of true justification."

16. ENFORCEMENT

16.1 Finally, a general comment about enforcement. It must always be borne in mind that the process of enforcement encompasses much more than simply hauling alleged offenders before the courts. First, legislation should be certain as to its object, application, and consequences. To this end, its provisions are required to be unambiguous, equitable and practicable. Secondly, it is essential in the context of animal protection that the nature of the legal responsibility which every measure imposes is appropriate for its subject matter and its purpose. In particular, such responsibility should extend to all those whose conduct may have an impact on the welfare or treatment of the relevant animals. Thirdly, those charged with enforcement have to be provided with the necessary authority and powers to enable them to ensure that the law is complied with. It is also important that they should be able to demonstrate a relevant degree of training, knowledge, and independence. Fourthly, the legislation must provide sufficient and appropriate sanctions. These will include the imposition of a punishment, such as a fine or imprisonment, but it is crucial that measures are available which provide protection for the animals involved. Hence the importance of judicial powers, such as the availability of confiscation and disqualification orders. However, of equal significance are administrative measures, such as improvement notices, or licensing powers. Fifthly, enforcement agencies should be adequately resourced to allow them properly to execute their responsibilities. Finally, such enforcement agencies should be publicly accountable for the way in which they perform their functions. This applies equally to all enforcement agencies, regardless of whether they are a public body or a private organisation: enforcement should always be open and transparent.

October 2004

Parl Deb Vol 14, col 554 (15 May 1809).

Back

4 An Act to prevent cruel and improper Treatment of Cattle ("Martin's Act"), 3 Geo IV, c 71. Back

5 Martin's Act was replaced in 1835 by An Act to consolidate and amend the several Laws relating to the cruel and improper Treatment of Animals, and the Mischiefs arising from the driving of Cattle, 5 & 6 Will IV, c 59, on the initiative of Joseph Pease MP. The 1835 Act was replaced in 1849 by An Act for the more effectual Prevention of Cruelty to Animals, 12 & 13 Vict, c 92, which was, in turn, repealed and re-enacted with amendments, as a result of a Bill introduced by George Greenwood, MP for Peterborough, which became the Protection of Animals Act 1911. Back

6 Zoo Licensing Act 1981. Back

7 Animals (Scientific Procedures) Act 1986. Back

8 Welfare of Horses at Markets (and other Places of Sale) Order 1990, SI 1990/2627; Welfare of Animals at Markets Order 1990, SI 1990/2628. Back

9 Welfare of Livestock Regulations 1994, SI 1994/2126, now superseded by the Welfare of Farmed Animals (England) Regulations 2000, SI 2000/1870, and the Welfare of Farmed Animals (Wales) Regulations 2001, SI 2001/2682 (W.223). Back

10 Welfare of Animals (Slaughter or Killing) Regulations 1995, SI 1995/731. Back

11 Welfare of Animals (Transport) Order 1997, SI 1997/1480.

Back