Operation of the definitions
51. The way in which the definitions of "animal",
"protected animal", "kept by man" and "keeper"
apply within the framework of the draft Bill, and the interrelationship
between the definitions, is complex. There is overlap between
the definitions of "animal" and "protected animal":
the latter is effectively a subset of the former. The definition
of "kept by man" is integral to the definition of "protected
animal", but it is also used in the draft Bill independently.
"Kept by man" is also effectively a subset of "keeper":
the definition of "keeper" replicates the definition
of "kept by man" but also extends and 'reverses' it,
to make it into a person-centred definition, rather than an animal-centred
definition, for the purposes of the clause 3 welfare offence.
52. The relationship between the definitions and
the offence clauses in the draft Bill appears intended to be as
follows:
- the clause 1 cruelty offences
are intended to apply only to protected animals
- the clause 2 fighting offence is intended to
apply to a fight between a protected animal and an animal (or
a human)
- the clause 3 welfare offence is intended to apply
only to animals which have a keeper
- the clause 4 and 5 offences are intended to apply
to animals
- the clause 6(1) delegated power is intended to
enable regulations to be made in respect of "animals kept
by man".
53. The draft Bill also appears at times to use "animal"
where "protected animal" is meant. For example, clause
5 provides that a person commits an offence if he or she gives
an animal to another person as a prize. On the face of it, therefore,
the offence extends to giving any vertebrate as a prize. However,
for a person to be in a position to give an animal as a prize,
that animal would presumably have to be either an animal which
a person owns, or is responsible for, or in charge of, or an animal
temporarily in the custody or control of man—that is, a
protected animal. The draft Bill appears to use "animal"—instead
of "protected animal"—where the circumstances
of a protected animal must necessarily be inferred from the context
in which the word is used.
Government's position
54. The Government seems to have acknowledged that
the draft Bill is not as clear as it might be in its use of definitions.
Defra officials have indicated that they are considering making
the following changes to the draft Bill:
- including the
definition of "protected animal" in the clause 1 cruelty
offence, rather than in clause 54, to make the relationship between
the definition and the offence clear[55]
- changing the references to "kept
by man" and "keeper" to "animals for which
a person is responsible", to resolve the face that the two
definitions do not "line up" with each other[56]
- amending clause 6 to make clear
that it applies to the same class of animals as the class to which
clause 3 applies—at this stage, this would appear to be
the class of "animals for which a person is responsible".[57]
Our position
55. We consider
that the way in which the definitions of "animal", "protected
animal", "kept by man" and "keeper" apply
within the framework of the draft Bill, and the interrelationship
between the definitions, is problematic and is likely to prove
confusing to many future users of the legislation. 'Casual' users
of the legislation will need to know the legislation in some detail
before they are in a position to understand and apply it.
56. We recommend
that the Government amend the draft Bill to clarify the interrelationship
between these definitions. The changes which the Government has
indicated it is considering certainly warrant exploration; in
particular, the Government should be careful to make clear the
relationship between the clause 3 welfare offence and the clause
6(1) delegated power by using consistent language in the two clauses.
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