Memorandum submitted by the Countryside
Alliance
INTRODUCTION
1. The Countryside Alliance welcomes the
opportunity to respond to the draft Animal Welfare Bill. The aim
of the Countryside Alliance is to promote and support the livelihood
of rural people and their communities. We campaign for the countryside,
country sports and the rural way of life. The Alliance is a UK-wide
membership organisation with 100,000 individual members and over
250,000 affiliated members, we reflect the views and concerns
of a broad range of rural people and their livelihoods.
2. The Alliance has been calling for a thorough
overhaul and consolidation of existing animal welfare legislation
since before the last General Election and as such welcomed and
responded to the Defra consultation on an Animal Welfare Bill
in 2002.
3. The Alliance welcomes and supports the
objectives and principles of this draft Bill. However, the Alliance
would like to take this opportunity to draw the Committee's attention
to some key areas of concern, and areas which the Alliance believes
will need further clarification if this Bill is to achieve its
aim of improved animal welfare, as well as having the consent
and co-operation of those who care for, manage and work with animals.
4. Many of the Alliance's initial concerns
have been allayed by looking at existing case law, dating back
over 150 years and more, which sets certain parameters on, and
clarifies, some of the scope and interpretation of the offences,
definitions and language used in the Bill. The importance of case
law is not a surprise as much of the Bill is a consolidation of
existing law.
5. We have responded with reference to those
issues that fall within our remit. We would in addition, commend
to the Committee the submissions of other rural organisations
such as the NFU, CLA, NGO, BASC and GCT, which raise some similar
concerns.
6. The Alliance hopes that the Committee
finds these comments helpful. It will participate constructively
in helping the Animal Welfare Bill to reach the Statute Book in
a form which protects and promotes animal welfare, mindful of
the needs of people who manage the countryside.
THE LONG
TITLE
1.1 The long title should make it clear
that the scope of the Bill covers "protected animals"
and animals "kept by man".
The Offences—Clauses 1-5
Clause 1—Cruelty
2.1 There are four categories of animal
in the Bill. "Animal" as defined in Clause 53, "protected
animal" defined in Clause 54, animals "kept by man"
defined in 54(3) and then animals of which a person is a keeper
as defined in 1(10) and 3(2), which is slightly different from
the 54(3) definition of animals "kept by man". For the
sake of clarity, consistent terminology must be applied throughout
each clause. Thus 1(4) and 1(7) refer to a "protected animal"
in their respective subsections (a) and (b) but to "animal"
in their (c) subsections. Moreover, in places such as 16(1)(a)
the drafting speaks of any animal "owned or kept by",
yet the definition of "kept by" in 54(3) includes ownership.
It needs clarifying as to which category of animal each offence
applies to and there needs to be consistency of language throughout.
2.2 The definition of "protected animal"
in Clause 54(2)(a) may also be flawed as it may inadvertently
include some wild animals, such as rabbits, which are also "of
a type commonly domesticated in the UK".
2.3 As drafted in Clause 1, cruelty offence
only applies to "protected animals" as 1(a) must be
understood together with 1(c). This is important as it restricts
the scope of the Bill reflecting more closely the scope of the
1911 Act.
2.4 Clause 1: if an offence is to be a strict
liability offence (ie no mens rea), it should be utterly
clear that this is the case. Clause 1(2) is ambiguous: is to "permit"
(within the meaning of 1(2)(a)) actus reus or mens rea?
Unless it is intended to be a strict liability offence, which
it should not be, this subsection ought to read "knowingly
permits".
2.5 1(3)(e)—What is meant by "a
reasonably competent and humane person". There is no agreed
understanding of what is "humane" let alone "reasonably
competent".
2.6 It is also of some concern that a cruelty
offence in relation to a "protected animal" is capable
of being committed on the basis of an act "likely to"
cause unnecessary suffering. It cannot be right for a person to
be convicted of something which has not actually occurred and
where no cruelty has taken place but only that unnecessary suffering
was possible at some unknowable point in the future.
2.7 In addition Clause 1(2) refers to animals,
which are "owned". This is problematic as under the
common law a person acquires a qualified property right in any
wild animal born on his land until such time as that animal is
old enough to leave that land of its own accord. A landowner may
then be found guilty of cruelty for failing to care for young
rabbits on his land. The Bill must be clear that "absolute"
ownership and not "qualified" ownership is what is being
referred to and which results in liability.
2.8 Clause 1(2) engages in relation to shooting
and shooting rights—just as Clause 3 does. A retrieved game
bird being still alive and being in the temporary "custody
or control of man" is a "protected animal" under
this Bill. Circumstances could arise in which malicious prosecutions
could be brought by those opposed to game shooting for offences
under Clause 1 and Clause 3. On a similar basis it could allow
the prosecution of those involved in ritual slaughter for Halal
and Kosher meat.
2.9 Mutilation—1(4): There is no definition
of "mutilation" in the Bill. The term mutilation appears
in the Agricultural (Miscellaneous Provisions) Act 1968 but is
not defined there either. The explanatory notes indicate that
a ban on ALL mutilations will come into force at the same time
as regulations exempting existing practices, with the exception
of a total ban on tail docking subject to possible exemptions.
Would mutilation include wing clipping of pheasants, defeathering,
ear marking, tattooing, micro chipping, spaying, castration and
the removal of dew claws?
2.10 The reference in the explanatory notes
to exemptions for shooting dogs takes no account of other types
of working dog such as terriers; those used by falconers; or of
those used by the army, police and HM Customs. It would be illogical
to allow the continued docking of sheep and pigs while making
no exceptions for working dogs.
2.11 Under the definition of "protected
animal" a fish, once on the end of a line, becomes a "protected
animal" and is covered by Clause 1. In addition the definition
of "keeper" at 1(10)—which includes being "in
charge of" an animal, would apply to a fisherman with a fish
on the end of his line. It would also apply to trawler men with
a net full of fish. Both could become guilty of the offence of
causing unnecessary suffering under Clause 1 and may also commit
an offence under Clause 3—Duty of Care—unless there
is some clarity as to the point at which a person becomes a "keeper".
Clearly the definition of "keeper" in relation to the
offence of causing "unnecessary suffering" needs to
be clarified. See also comments on Clause 54 below.
Clause 2—Fighting
2.12 It is far from certain that these provisions
will not inadvertently ban, or at least leave open to malicious
prosecution, legitimate activities such as ferreting and ratting.
2.13 The definition of "animal fight"
given in 2(3) is "an occasion on which a protected animal
is placed with "an animal, or with a human, for the purpose
of fighting, wrestling or baiting". It needs to be clarified
that an offence is not committed where a confrontation may occasionally
occur as an accidental consequence of a lawful activity eg a rat
and terrier. Could it be applied to a fish on a hook?
Clause 3—Welfare
2.14 3(1)—The duty of care applies
to animals of which a person is "keeper" as defined
in 3(2). If the duty of care applies to all animals, which a person
owns or is in charge of, this may include certain categories of
wild animal when on land owned by an individual. As in Clause
1(2), Clause 3(2) refers to animals, which are "owned".
This is problematic as under the common law a person acquires
a qualified property right in any wild animal born on his land—see
point 2.7 above. Moreover, while for the purposes of the law of
theft no one owns wild animals in the strict sense, they only
become owned once killed or captured, the definition of "keeper"
in 3(2) might include some wild animals particularly of the recognised
game species. Sporting rights, the right to take or kill game,
is settled on the owner of land. If that land is leased to another,
then the sporting rights pass to the tenant as the occupier, unless
specifically reserved to the owner. Sporting rights retained by
an owner can also be leased to a person other than the tenant
of land eg a shooting tenant. As such while wild animals are not
owned per se, some are the subject of distinct property
rights and can only be lawfully killed or captured by someone
with a legal right to do so. To kill or capture a wild animal
without having the legal sporting rights is to have possession
of something, which does not belong to you, but rather once killed
or captured belongs to the person owning those rights, this is
an offence and where it also involves trespass is poaching. The
existence of gamekeepers and laws which punish the taking of wild
animals from another's land would suggest that while those wild
animals are on a person's land they might be said, for all practical
purposes, to be the property of the person enjoying the sporting
rights. This should be clarified.
2.15 If the offence can be committed by
a failure to "take reasonable steps" to ensure the animal's
welfare then an owner, tenant or sporting tenant may commit an
offence by failing to care for an injured wild animal. All depends
on the scope of the duty of care coupled with the meaning of "keeper".
This may be the case despite 3(5) as the criteria for "appropriate
manner" set out in 3(5) are wholly subjective. Who decides?
For example a game bird is shot and retrieved but not killed—what
is the appropriate and humane manner of despatch, which avoids
prosecution? Or does the duty of care apply, possibly requiring
veterinary treatment?
2.16 Definition of "keeper"—3(2).
It is not clear whether 3(2)(a) and (b) must be read together
or are to be understood separately. Moreover, as in Clause 1 it
is unclear when a person becomes a "keeper" in relation
to an animal. Thus the extent of the duty of care is unclear.
When a fish is caught at what point does a duty of care apply—when
first on the hook or once in the keep net? What about a fishing
trawler with huge nets of fish—is there a duty of care to
each fish? In all these cases a person could be said to be "in
charge of" the fish from the moment of capture, be it in
a trawler net or on the end of a line. A Section 1 offence could
also apply in these scenarios because as similar definition of
keeper is used in Clause 1 and the definition of "protected
animal" includes animals "temporarily in the custody
or control of man" 54(2)(iii).
2.17 Moreover, the term "reasonable
steps" implies a constant process of proactive conduct, which
may be neither practical nor desirable in all cases.
2.18 As with so much of this Bill, if applied
with common sense it is unlikely that a problem would arise. However,
clarity is even more essential when organisations with particular
agendas as far as shooting sports are concerned may be prosecuting,
and in all probability using the powers of inspection, under this
legislation while at the same time campaigning against the very
people against whom they will be enforcing this legislation eg
game farmers.
2.19 It would be all too easy for an over
burdensome inspection regime to ruin the shooting industry. Ironically,
under Clause 12 they could do this and recover any costs from
the very people whose activities they wish to destroy. Costs recoverable
should, at the very least, only be "reasonable" costs
as is the case in Clause 29.
2.20 Abandonment—3(3). This raises
a significant problem associated with the problem over the definition
of "keeper". How would this relate to released game
birds, or fish bred and released into ponds and rivers? What about
a person who catches a fish and then releases it—catch and
release? The same would apply to animals caught in a cage trap
or snare whether of the target species or not.
2.21 In all these cases a person could be
said to have abandoned an "animal". They can thus be
said to have an ongoing duty of care until another person captures
that animal. This is open-ended liability. Moreover, fishermen,
in particular, would be open to prosecution under Clause 1 due
to the definitions of "keeper" and "protected animal"
as discussed above.
2.22 3(6)—What is "an appropriate
and humane manner"? Who decides? Even if killing an animal
does not constitute an offence per se, the activities outlined
above could be rendered offences inadvertently.
Regulations and Codes—Clauses 6-10
Clause 6—Regulations To Promote Welfare
3.1 The powers granted under these clauses
to the Secretary of State in England and the National Assembly
in Wales are virtually limitless in scope. We would suggest that
the wording of 6(1) is particularly imprecise. In particular,
"promoting" is either the wrong word (if taken literally)
or too vague (if read in its wider sense). "Ensuring"
the welfare of animals is stronger—and borrows from 3(1).
It might also be worth considering a new requirement that the
Minister should certify the regulations as fit for ensuring animal
welfare. A further sub-clause would need to be included in 6 to
set out the certification procedure ie amended 6(1) might read:
"The appropriate national authority may by regulations make
such provision as the authority certifies fit for the purpose
of ensuring the welfare of animals kept by man." This requirement
would ensure that the Minister had to certify that there was a
peer-reviewed scientific basis or a genuine welfare need, as evidenced
by the consultation responses before introducing or amending regulations.
This would also give a clear role for any body established under
6(2)(q).
3.2 These provisions could also be used
to prohibit lawful activities, without the need for primary legislation
eg 6(k), 6(l) and 6(m) which allow regulations for prohibiting
"specified practices in relation to animals" or "the
keeping of animals of a specified kind in specified circumstances"
or "the use of animals of a specified kind for a specified
purpose".
3.3 Regulations could require compulsory
licensing or registration of existing lawful activities beyond
the introduction of a statutory code of conduct. There must be
provision for adequate consultation, as new licensing and registration
schemes will doubtless involve additional financial burdens on
groups and individuals. There is no duty to consult in making
any regulations under Section 6. This is at odds with the making
of codes under Clause 8. The requirement to consult should apply
to making regulations as it does to codes.
3.4 6(2)(q)—Any body established to
give advice on the welfare of animals should be an expert body
and wholly independent of Government and campaigning organisations.
Any research commissioned must also be subject to proper peer
review. It is important that any such body has the confidence
of the public and operates to the highest scientific and professional
standards. It would be unacceptable that this body should consist
of organisations with particular agendas, particularly animal
rights, as opposed to animal welfare agendas.
3.5 6(5)—Has direct implications for
all activities involving animals and especially those which also
involve firearms. Could result in the licensing of all shoots,
all stalking, in addition to existing firearms licensing etc.
3.6 The Alliance welcomes the requirement
that regulations made under Section 6 are subject to the affirmative
procedure. This is only proper as these regulations can effectively
create offences including custodial sentences up to a year and/or
fines of up to £5,000.
Clause 7—Codes Of Practice
3.7 There is considerable concern that the
code making powers could be used to restrict existing practices
unnecessarily. It is imperative that codes and regulations are
based on best independent scientific evidence available and existing
best practice, except where the scientific evidence clearly requires
a change to be made.
3.8 In this respect the Alliance has welcomed
the Government's acceptance of the Game Farmers' Association Code
relating to game farming. The Alliance would seek assurances that
in the creation of other codes ministers would work with the existing
codes of other knowledgeable and specialist organisations such
as the National Working Terrier Federation's code on terrier work,
the National Angling Alliance's coarse angling code, the Hawk
Board in relation to raptors and issues such as tethering or the
Code of Good Shooting Practice.
3.9 While we welcome the requirement in
this clause for the Secretary of State to consult and to consider
any representations made when drawing up codes, there is no specific
requirement to consult those directly affected by the codes nor
does the Secretary of State have to take any notice of those representations.
Codes should be drawn up on the best scientific evidence; by experts
and in consultation with, and the consent of, those affected eg
the Game Farmers' Association's code is an example of good practice.
As such we would prefer the wording used in Section 3 of the Agricultural
(Miscellaneous Provisions) Act 1968.
3.10 Codes, like regulations under Clause
6, should be subject to positive resolution of both Houses and
not a negative resolution. There is no justification for the difference
in the procedure for approving regulations as opposed to codes.
The Alliance would draw the Committee's attention to existing
legislation especially the Agriculture (Miscellaneous Provisions)
Act 1968 where codes shall not be issued "until the code
or the proposed alterations have been approved by both Houses".
Enforcement Powers, Powers Of Entry Prior To A
Conviction—Clauses 11-23
Clause 11—Animals In Distress
4.1 One of the most significant changes
represented by this legislation is that action may be taken not
only where suffering or distress is actually occurring but where
an animal "is likely to suffer". Suffering is not qualified
under clause 11 and thus these powers could be exercised in any
situation whether reasonably or unreasonably. It should be noted
that as a "protected animal" applies to an animal "temporarily
in the custody or control" of man it could be applied to
almost all activities involving animals including, for example,
angling. Once again under 12(4) any costs can be recovered whether
reasonable or not and whether or not a prosecution has even proceeded,
let alone succeeded.
4.2 If these new powers are exercised responsibly
we see no problem in the inclusion of such provisions. However,
the exercise of such powers will require considerable knowledge
of a wide variety of species and careful exercise of judgement.
This is particularly true for animals such as raptors. There should,
at the very least, be ministerial guidance as to the exercise
of these powers.
4.3 Under this clause if a group of animals
are detained proceedings need only be commenced in respect of
one of them for them all to be detained until those proceedings
have been concluded. This seems excessive.
4.4 The powers of inspection and entry in
this Bill give equal powers to inspectors as to the police. In
effect this creates an animal police. Yet it is not clear that
the provisions of the Police and Criminal Evidence Act (PACE)
will apply to inspectors as to the police. The only direct reference
to PACE relates to the application for warrants. Moreover, the
police cannot be members of certain political parties or organisations
and are accountable to their local police authority and from there
to Parliament through the Secretary of State. This will not be
the case with inspectors who may belong to organisations opposed
to the activities of the very people they are inspecting eg game
shoots, racing etc. This is a source of great concern to all rural
organisations.
4.5 Moreover, the creation of the Crown
Prosecution Service was designed to separate the role of inspector/investigator—the
police—from that of prosecutor—the CPS. It is ironic
that under this Bill the two roles could be reunited in a person
or organisation acting as both inspector and prosecutor.
Clause 12—Powers To Remove And Care For
Animals In Distress
4.7 This clause allows the person enforcing
the Bill under Section 11 to recover any costs from the owner.
Thus, even where an animal is wrongly taken into possession and
no prosecution or conviction results the owner suffers a financial
penalty. Costs should only be recoverable where a court accepts
that an offence has or would have been committed. As the Bill
is drafted the cost of inspection and enforcement would be imposed
on the innocent as well as the guilty. Only where a court has
found that such action was justified should reasonable costs be
passed on to the owner. This would also act as an important restraint
against the abuse of these powers.
4.8 Unless the power to recover costs is
limited, those who own, keep, or are responsible for animals can
suffer repeated financial penalties without ever having committed,
or have been about to commit, an offence under the provisions
of this Bill. We suggest that from a Human Rights perspective
this provision, as currently drafted, is of dubious legality.
4.9 The Bill should reflect the provisions
of the Protection of Animals (Amendment) Act 2000, which is replicated
in Clause 20 of the Bill, that the prosecutor can only be reimbursed
where a court order to take action in the interests of the welfare
of the animal has been granted on veterinary advice or with the
sanction of a court.
Clause 13—Other Powers In Relation To Animals
In Distress
4.10 Clause 13(1) refers to a constable
or inspector taking steps that "appear to him" to be
reasonable to alleviate an animals suffering. This is entirely
subjective and could result under 13(3) in the destruction of
an animal or animals, without the constable or inspector's actions
being objectively reasonable. If a person loses an animal as a
result of unreasonable action he has no right to compensation
and the inspector has the considerable protection given in Clause
45.
4.11 13(4)—It is unclear as to whether
the established rules governing the taking of evidence will apply
to all those involved in enforcement and prosecution.
Clause 14—Entry To Search For And Deal With
Animals In Distress
4.12 This gives the police and inspectors
the power to enter premises where they reasonably believe an animal
is suffering or is likely to suffer. The powers in this Bill do
not include the restrictions on the exercise of this power found
in the Animal Health Act 2002. The reason for these restrictions
in the 2002 Act is to ensure a balance between animal welfare
and civil liberties. We believe that as under the 2002 Act the
Bill should include those same limitations namely that a Justice
of the Peace has to be given sworn information in writing that
there are reasonable grounds for entry, including a statement
as to what representations have been made by the occupier, and
a summary of any such representations.
4.13 14(6)(a)—In addition to informing
the occupier of the decision to apply for a warrant to enter a
private dwelling there should also be a duty to give reasons as
is the case in 14(6)(b) in respect of premises which are not a
dwelling. There should also be equal provision for the occupier
to be heard by the court where a warrant is being sought. Similar
provisions should be carried throughout all sections relating
to enforcement powers especially relating to powers of entry.
4.14 In the light of 14(6)(c)(ii) which
allows inspectors to circumvent the obligation to inform the occupier
that a warrant is being sought, we believe that clear ministerial
guidance is needed to prevent any abuse of these powers.
Clause 16—Orders In Relation To Animals
Owned Or Kept By The Defendant
4.15 Clause 16 must be contrasted with Clause
17. Clause 16 would, where a criminal trial is pending regarding
animal "A", allow a court to sanction the removal and
sale or destruction of any other animals "B-Z" belonging
to the defendant, notwithstanding that no separate criminal investigation
and/or prosecution has been commenced or, indeed, ever concluded
in relation to animals B-Z. (Cf with s2 Protection of Animals
(Amendment) Act 2000: case law last year made clear that the powers
in s2 related to the animal that was the subject of the prosecution—and
not other animals.) Two points seem relevant here: Firstly, although
there is one safeguard in Clause 16(3), there is no "safeguard"
of compensation for the destroyed animals "B-Z", should
the defendant be found not guilty of the offence in relation to
animal "A". Secondly, in any event, the factual nexus
between prosecution pending (and not even concluded with a finding
of guilt) regarding animal "A", on the one hand, and
destruction of animals "B-Z", on the other hand, is
simply not tight enough to justify what is effectively expropriation.
Enforcement Powers, Powers Of Entry Penalties,
Disqualification After A Conviction Clauses 24-34
Clause 24—Imprisonment Or Fine
5.1 The Alliance welcomes the provisions
in 24 (2) for a lower maximum fine for offences in this category
as the offence relates to an infringement of a legal proscription
or restriction and not to the offence of cruelty.
Clause 27—Duty To Explain Non-Exercise Of
Powers Under Sections 25 And 26
5.2 The provisions of this clause require
the court to give reasons in all cases if it decides not to make
deprivation or disqualification orders. These orders are in addition
to fines and/or custodial sentences. We do not believe that even
in relatively minor cases the court should have to consider deprivation
or disqualification orders, which they will have to do, as they
are required to give reasons. The courts should have the discretion
to decide when such orders are appropriate and give reasons for
making them and not vice versa. It may even encourage magistrates
to make such orders even where inappropriate, as it would be easier
for a magistrate to make an order without having to give reasons,
than not to make an order and have to give reasons.
Clause 25—Deprivation
5.3 There should be a right of appeal against
deprivation, especially destruction, by persons, other than the
person convicted, who may have an interest in the animal. For
example, in the case of a family pet, ownership it is not always
clear, similarly with syndicate ownership of horses or greyhounds.
Clause 30—Destruction In The Interests Of
The Animal
5.4 30(3)—Others with an interest
in the animal should have the right to make representation to
the court. Similarly in Clause 31(3).
Other Enforcement Powers—Clauses 35-49
Clause 39
6.1 Entry without a warrant should not apply
after the event. Clause 40 covers exceptional circumstances, for
example, where evidence is in danger of being destroyed.
Clause 43—Time Limitations For Prosecutions
6.2 The provision of 3 years in 43(1)(a)
seems excessive, especially in the light of the nature of evidence
in cases involving animals. Why this departure from the standard
six-month limitation for summary offences? The limitation is there
for legal certainty and DEFRA's note to Clause 43 is far from
being a sufficient justification for departure from the norm.
Furthermore, the certification process is open to abuse—in
particular if there is insufficient separation between the investigating
officers and the prosecutor.
Clause 44—appointment of inspectors by local
authorities
6.3 44(1)—guidance, for local authorities
when appointing inspectors, laid down by the Secretary of State
should be subject to consultation and approval by Parliament by
positive resolution of both Houses.
6.4 Inspectors must be independent. It would
be unacceptable to have those appointed as inspectors under this
Bill, inspecting game farms, shoots, livery yards or kennels etc
where they are members of organisations with public policy positions
in favour of banning game shooting or hostile to racing. Where
employees of non-statutory bodies are appointed inspectors and/or
prosecutors the organisation which employs them should neither
campaign "for" or "against" the activities
of those whom they will be inspecting and/or prosecuting.
Clause 49—Offences By Bodies Corporate
6.5 Liability for an offence under this
Act should take account of the proximity of the person charged
to the offence committed. It seems unreasonable that a person
hundreds of miles away could be convicted when they had no part
in any offence. While supporting this clause in principle, its
extent should be more tightly drawn.
Interpretation—Clauses 53 And 54
Clause 53
7.1 The definition of animal as being "a
vertebrate other than man" would make the use of vertebrates
such as sand eels as bait for fishing illegal, or at least open
to prosecution.
Clause 54
7.2 The definition of "protected animal"
in Clause 54(2)(a) may be flawed as it may inadvertently include
some wild animals, such as rabbits, which are commonly domesticated
in the UK. Moreover, 54(2)(b)(iii) refers to an animal being a
"protected animal" if it is "temporarily in the
custody or control of man". This would affect shooters, game
keeping practices, fishing and commercial trawling and potentially
render them illegal or at least open to prosecution—see
notes above. It also raises questions over the netting of rabbits.
Annex K—Database Recording Licences, Offences
And Best Practice
8.1 Any database of convictions under this
Bill should be available to the police alone and not generally
to those asked to enforce the legislation. It should then be for
the licensing authority to ask the police to check the database
when an application for a licence is being considered. There is
an important question of civil liberties here. The Alliance supports
the proposal for a central database of licences granted but believes
access should be duly limited and controlled.
18 August 2004
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