Conclusions and recommendations
Definitions
1. We
agree with the RSPCA that the legislation should specify the criteria
according to which the delegated power in clause 53(3) may be
exercised. The definition of "animal" is fundamental
to the draft legislation; it would determine the scope of the
legislation's application. It should therefore be clear on what
basis the power to extend the Act's application may be exercised.
(Paragraph 20)
2. We endorse the
RSPCA's suggestion that the appropriate national authority should
be able to make an order under clause 53(3) only where the authority
has reasonable grounds to believe, on the basis of scientific
evidence, that the animal to which it is proposed to extend the
protection of the Act has the capacity to experience pain, suffering,
distress or lasting harm. We recommend that the Government amend
clause 53(3) to include words to this effect. (Paragraph 21)
3. It is crucial that
these criteria be spelt out on the face of the legislation. It
is not sufficient for Defra to give an undertaking that orders
will be made under clause 53(3) only on the basis of appropriate
scientific evidence. (Paragraph 22)
4. We believe that
a strong case has been made for the inclusion of octopus, squids
and cuttlefish, and of crabs, lobsters and crayfish, in the clause
53(1) definition of "animal". The position of the Animal
Procedures Committee on octopus, squids and cuttlefish is particularly
persuasive in this respect. However, although it seems to us that
octopus, squids and cuttlefish, and crabs, lobsters and crayfish,
ought to be included in the clause 53(1) definition of "animal",
we consider that we have received insufficient evidence on which
to base a final conclusion on this matter. We therefore recommend
that, prior to introducing a Bill to Parliament, the Government
should reassess whether there are reasonable grounds to believe,
on the basis of scientific evidence, that octopus, squids and
cuttlefish, and crabs, lobsters and crayfish, have the capacity
to experience pain, suffering, distress or lasting harm. The Government
should have particular regard to evidence relied on by New Zealand
and the Australian Capital Territory in choosing to include cephalopods
and certain crustaceans in their respective animal welfare legislation.
Whilst this assessment is being undertaken a code of practice
should be issued giving details of humane ways in which crabs
and lobsters should be stunned prior to cooking. (Paragraph 30)
5. We support the
Government's position that the protection offered by the draft
Bill should not extend to wild animals, living in the wild; such
animals are better covered by other, existing legislation. However,
we are unconvinced that the phrase "temporarily in the custody
or control of man" in the definition of a "protected
animal" will achieve the Government's intended position.
(Paragraph 39)
6. We therefore recommend
that the Government adopt the approach taken in the Protection
of Animals Act 1911 and in more recent Northern Ireland and New
Zealand legislation of:
- adopting a broad definition
of what constitutes an animal, but
- limiting the
application of the definition by excluding specific activities
from the scope of the legislation's protection, rather than by
seeking to define a narrower class of "animal" (a "protected
animal", in this case).
Examples of activities to be excluded would include
hunting or killing wild animals or animals in a wild state, including
in accordance with relevant legislation for pest control or conservation
purposes. (Paragraph 40)
7. If
the Government does not accept our recommendation then, at the
very least, a definition of the word "control", as it
is used in the phrase "temporarily in the custody or control
of man", should be included on the face of the Bill. Such
a definition should be drawn sufficiently narrowly so as to ensure
that the protection offered by the draft Bill would not extend
to wild animals, living in the wild. (Paragraph 41)
8. We consider that,
as the draft Bill is currently drafted, there is a strong argument
that a person catching a fish, both in a commercial and a recreational
context, could be liable to prosecution under the clause 1 cruelty
offence, which would include the clause 1(4) mutilation offence
in the case of fishing hooks and, perhaps, fishing nets. There
is also an argument that a prosecution could be brought under
the clause 3 welfare offence. We therefore doubt the Government's
position that the draft Bill would be unlikely to have any impact
on traditional fishing or angling practices. (Paragraph 46)
9. We accept that
neither commercial fishing nor recreational angling should fall
within the remit of the draft Bill and we therefore support the
Government's intention to exempt fishing as an activity—rather
than fish as a species—from the scope of the legislation.
Amendment is necessary: even if prosecutions for fishing-related
activities were to prove unsuccessful when brought, the fact remains
that those prosecutions should not be able to be brought in the
first place. However, in exempting fishing, the Government should
be careful to ensure that those persons who catch fish are not
given carte blanche to inflict unnecessary suffering in
the course of pursuing this activity; welfare standards should
continue to apply where appropriate. (Paragraph 47)
10. 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. (Paragraph
55)
11. 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.
(Paragraph 56)
Offences
12. We
consider that the clarity and utility of clause 1 would be greatly
improved if it were divided into separate clauses, each setting
out one offence. We recommend that each of the following sub-clauses
or groups of sub-clauses should be separated out:
- sub-clauses (4), (5) and (6)
(mutilation)
- sub-clauses (7) and (8) (administering injurious
drugs)
- sub-clause (9) (performing an operation without
due care).
The Government should consider how the clause 1(10)
definition of "keeper", which is relevant to each of
these offences, can best be incorporated into each offence. (Paragraph
67)
13. Although the offences
of mutilation, administering injurious drugs and performing an
operation without due care are specific cases of the 'parent'
offence of "causing unnecessary suffering", rather than
new and unrelated offences, the clause 2 offence of fighting is
equally a specific case of causing unnecessary suffering, and
it has been—helpfully—made into a separate clause.
We consider that separating out the cruelty offences will assist
clarity and will not affect the ability to bring prosecutions
under the various offences. (Paragraph 68)
14. We welcome the
Government's undertaking that it will seek to simplify the drafting
of clause 1(1). (Paragraph 70)
15. We are extremely
concerned that the Government apparently intends that the clause
1(1) cruelty offence should apply only to deliberate infliction
of unnecessary suffering and that it should not extend to unnecessary
suffering which arises as a result of negligence or neglect. As
currently drafted, unnecessary suffering which arises as a result
of negligence or neglect would appear to engage the cruelty offence
only where the suffering is caused by another person who is not
the keeper, as a result of the keeper's negligence or neglect.
The Government's apparent position would represent a backward
step in terms of animal protection: it would lessen the current
protections in existing animal welfare law and would significantly
restrict the scope of the cruelty
offence. (Paragraph 80)
16. We assume it is
the Government's intention that unnecessary suffering which arises
as a result of negligence or neglect should be dealt with under
the clause 3 welfare offence. We consider such an approach is
inappropriate for two reasons. First, the penalties available
under the welfare offence are less serious than those available
under the clause 1(1) cruelty offence. Second, and more importantly,
we understand the purpose of the welfare offence to be to deal
with those cases where the standard of care given to an animal
is clearly inadequate, but where it is not possible to demonstrate
that the animal has suffered unnecessarily. The distinction between
the cruelty offence and the welfare offence should be whether
the animal has suffered unnecessarily, not the mental state of
the person who caused that suffering. The extent of an offender's
mental culpability can best be reflected at the sentencing stage,
where we would expect those whose negligence or neglect has caused
unnecessary suffering generally to receive a lesser sentence than
those who intentionally or recklessly caused such suffering. (Paragraph
81)
17. We therefore recommend
that the Government amend the draft Bill to make it clear that
the mens rea element of the clause 1(1) cruelty offence should
be assessed by means of an objective test, so that the defendant's
conduct will be assessed on the basis of what a reasonable person
in the position of the defendant would have known about the consequences
of his or her conduct. (Paragraph 82)
18. We recommend that
the Government amend clause 1 so as to make clear that it is an
offence to cause unnecessary mental suffering to an animal, whether
or not that mental suffering is accompanied by physical suffering.
(Paragraph 84)
19. We consider that
clause 1(3) is unclear in its intent and application. We are concerned
that, as presently drafted, the complexity of clause 1(3) will
create uncertainty for prosecutors and the courts, which could
make it difficult for a prosecutor to secure a conviction under
clause 1(1) or (2). We recommend that the Government consider
how clause 1(3) can best be clarified. (Paragraphs 88 and 89)
20. In order to make
the scope of the proposed mutilation offence clear, we consider
that it is crucial that a definition of "mutilation"
is included on the face of the legislation. Without such a definition,
what constitutes "mutilation" would effectively be defined
by the appropriate national authority, on the basis of what mutilations
the authority chose not to exempt from clause 1(4) by means of
clause 1(5). The definition should also assist in rendering "mutilation"
a less emotive word in the context of animal welfare legislation,
because it will have a clear meaning in both a legal and a veterinary
context. (Paragraph 96)
21. On the basis of
the evidence we have received, it is evident that the list of
exemptions to the clause 1(4) mutilation offence is likely to
be lengthy. We have therefore considered whether it is in fact
appropriate or meaningful to have an absolute ban on mutilation
on the face of the legislation, given that the ban is likely to
be considerably less than 'absolute' in practice. This is particularly
true given that farmed and companion animals can have quite distinct
welfare needs and practices in this respect, and any exemptions
made under clause 1(5) will need to distinguish between these.
(Paragraph 101)
22. On balance, we
support the inclusion of clause 1(4) on the face of the Bill because
it will send a strong message about animal welfare to the courts
and the public. The inclusion of mutilation as a separate class
of welfare offence is also important for evidential reasons: if
acts of mutilation were left to be dealt with by clause 1(1) and
(2), evidence of suffering as a consequence of the mutilation
would be required. (Paragraph 102)
23. We consider that
each of the acts specified in clauses 2(1)(a) to (e) of the fighting
offence should be deemed to be offences at the time at which each
act takes place. Provided that sufficient evidence exists in the
absence of the fight, prosecutions should be able to be pursued
in respect of such acts without the need for the animal fight
to take place. The enforcing authorities should not have to wait
for a fight to take place before being able to take enforcement
action. We recommend that the Government amend clauses 2(1)(a)
to (e) accordingly. (Paragraph 106)
24. We commend the
Government for the introduction of the welfare offence under clause
3. This clause will allow preventive action to be taken at a point
at which harm has yet to occur to the animal in question, something
which is not possible under current animal welfare law. It should
make a significant and important contribution towards enhancing
animal welfare. (Paragraph 111)
25. However, we consider
that the Government is being disingenuous in presenting the proposed
clause 3 welfare offence as a simple extension, from farmed animals
to all kept and companion animals, of an existing duty to ensure
welfare. The existing offence on which the Government relies,
section 1(1) of the Agriculture (Miscellaneous Provisions) Act
1968, is not analogous to the proposed welfare offence. We consider
that clause 3 would in fact extend the protection currently offered
by section 1(1) of the 1968 Act. We entirely support this extension,
but we consider it is important that the Government should accurately
represent to Parliament the nature of the proposals to which it
is seeking Parliament's agreement. (Paragraph 112)
26. We recommend that
the Government re-consider the wording of the clause 3(1) offence,
in order to clarify the nature of the offence. In particular:
- A keeper should be required
to ensure an animal's good or beneficial welfare. As currently
drafted, an offence would be committed if a keeper fails to take
reasonable steps "to ensure the animal's welfare". "Welfare"
in itself is a neutral term; clarification of what kind of welfare
a keeper needs to ensure is required.
- The Government should consider whether clause
3(1) would not be better and more helpfully expressed as a positive
duty of care, rather than as an offence of omission. (Paragraph
116)
27. We
consider it is appropriate that the welfare offence should have
only an actus reus (or action) element and no mens rea (or mental)
element. This would mean that a keeper who unknowingly or negligently
failed to take reasonable steps to ensure an animal's welfare
would be as culpable as a keeper who intentionally or recklessly
failed to take such reasonable steps. However, our endorsement
of the elements of the clause 3 welfare offence should be read
in the context of our comments on the mens rea element of the
clause 1 cruelty offence. (Paragraph 117)
28. We
support the Government's approach of setting out a modified version
of the five freedoms on the face of the draft Bill. The five needs
in clause 3(4) provide a strong statement of the ideal animal
welfare circumstances towards which those responsible for animals
should be working. We consider it imperative, however, that the
five needs should continue to be framed as aspirational, and therefore
not achievable in all circumstances.
(Paragraph 128)
29. In respect of
clause 3(5), we support the RSPCA's suggestion of amending the
existing clause 3(5) so that it mirrors the factors set out in
regulation 3(3) of the Welfare of Farmed Animals (England) Regulations
2000. The factors listed in regulation 3(3) should be more helpful
to the courts in distinguishing the circumstances in which the
clause 3(4) needs are not attainable. It also seems sensible to
us to aim, wherever possible, for consistency in definitions in
animal welfare legislation. (Paragraph 129)
30. We do not object
to the removal of clause 3(3) provided that the Government is
certain that abandonment of an animal would not serve to divest
a person of legal ownership or the responsibilities that follow
on from it, and that a charge could therefore be laid and successfully
prosecuted under clause 3(1). (Paragraph 136)
31. However, we are
concerned that the draft Bill would represent a significant weakening
of the current law on the abandonment of animals. Under the Abandonment
of Animals Act 1960, an offence is committed at the time at which
abandonment occurs; no evidence of the animal having suffered
is required, and a person who is found guilty of abandonment is
deemed to be guilty of a cruelty offence within the meaning of
the Protection of Animals Act 1911. Under the draft Bill, although
an act of abandonment could form the basis of a charge laid under
the main cruelty offence, clause 1(1), evidence of the animal
having suffered would be required. Evidence of abandonment without
evidence of the animal having suffered could form the basis only
of a charge laid under the welfare offence, clause 3(1), which
carries lesser penalties than the clause 1 cruelty
offences. (Paragraph 137)
32. We recommend that
the Government amend the draft Bill so that the act of abandoning
an animal continues to be treated as a cruelty offence without
the need for evidence of the animal having suffered as a consequence
of the abandonment. The present law presumably does not require
such evidence for the very good reason that an abandoned animal
may not be able to be traced, in order for its suffering to be
able to be demonstrated. No doubt the 1960 Act was enacted in
the first place to deal with the requirement in the 1911 Act that
unnecessary suffering be demonstrated. The fact that the act of
abandonment, in and of itself, constitutes an offence is a key
animal welfare protection in current law and it is crucial that
it be maintained. (Paragraph 138)
Delegated powers
33. The
power that would be delegated under clause 6 is very broad. We
are unconvinced by the Minister's justification for the breadth
of the clause 6(1) delegated power. (Paragraphs 146 and 151)
34. The suggestion
that the mechanism of judicial review would provide a sufficient
limitation on the exercise of the clause 6(1) power is unacceptable.
(Paragraph 152)
35. We are disappointed
by the Minister's reluctance to consider redrafting the clause
6(1) power in order to limit its breadth. We recommend that the
Government amend clause 6 so that:
- a more precise word than "promote"
is used: "ensure" seems sensible, provided that it continues
to be used in clause 3
- the appropriate national authority
must certify that any draft regulation proposed to be made under
clause 6(1) is justified either on the basis of scientific evidence
or because it meets a genuine welfare need evidenced by the consultation
process on the proposed draft regulations. (Paragraph 155)
36. We
recommend that clearer requirements about the way in which licensing
powers are to be exercised should be included on the face of the
legislation, rather than being left for the appropriate national
authority to specify under delegated legislation. It should be
clearly stated that the licensing authority has the power to attach
welfare conditions to a licence and to revoke a licence. The legislation
should also require the licensing authority to have regard, in
issuing a licence, to relevant guidance laid down in the form
of codes of practice issued by the appropriate national authority
under clause 7. (Paragraph 161)
37. We recommend that
the Government re-examine the issue of whether the degree of detail
in clause 6(2) could potentially circumscribe the generality of
the clause 6(1) delegated power in ways which the Government does
not intend. (Paragraph 163)
38. We recommend that
the Government amend clause 1 so as to require the appropriate
national authority to certify that any draft order proposed to
be made under clause 1(5) is justified either on the basis of
scientific evidence or because it meets a genuine welfare need
evidenced by the consultation process on the proposed draft regulations.
We discuss the need for such a consultation
process further, below.(Paragraph 166)
39. We endorse the
inclusion of a duty for the appropriate national authority to
consult on any draft code of practice which the authority proposes
to make under clause 7, as set out in clauses 8(1)(b) and 9(1)(b).
We believe that an obligation to consult on draft codes of practice
should improve the quality and relevance of the final codes. (Paragraph
175)
40. Given the Government's
readiness to include a duty to consult on draft codes of practice,
we are extremely disappointed by the Minister's refusal to include
a parallel duty to consult on draft regulations. Regulations made
under clause 6(1), and orders made under clause 1(5), will form
part of the law of the land—regulations made under clause
6(1) may create criminal offences and repeal primary legislation,
amongst other things—whereas codes of practice will exist
primarily for the purpose of guidance. We do not accept the Minister's
argument that, as Defra intends to consult on draft regulations
anyway, there is nothing to be gained by including a requirement
to consult on the face of the Bill. The Cabinet Office code of
practice has no legal force and cannot require government departments
to consult; nor is there any obligation for the National Assembly
for Wales—an appropriate national authority under clause
6(1) and clause 1(5)—to adopt the code of practice. If the
Minister intends to consult appropriately on all draft regulations
anyway, he can have no objection to a requirement to consult being
included on the face of the draft Bill. (Paragraph 176)
41. We recommend that
clause 6 should be amended to place a duty on the appropriate
national authority to consult on any draft regulation which the
authority proposes to make under clause 6(1). This duty should
be in equivalent terms to the duty for the appropriate national
authority to consult on any draft code of practice which the authority
proposes to make under clause 7, as set out in clauses 8(1)(b)
and 9(1)(b). (Paragraph 177)
42. Likewise, we recommend
that clause 1 should be amended to place a duty on the appropriate
national authority to consult on any draft order which the authority
proposes to make under clause 1(5). This duty should be in equivalent
terms to the duty for the appropriate national authority to consult
on any draft code of practice which the authority proposes to
make under clause 7, as set out in clauses 8(1)(b) and 9(1)(b).
(Paragraph 178)
43. We suggest to
Defra that, if it intends to continue to use working groups to
formulate animal welfare policy, then it would be well-advised
to formalise the process by which the groups' membership and programme
of work is decided, in order to ensure transparency and build
confidence in the quality of those undertaking this work. (Paragraph
179)
44. We recommend that
the Secretary of State agree to enter into a 'memorandum of understanding'
with this Committee, undertaking to:
- publish in draft form any regulation
proposed to be made under clause 6(1) or order proposed to be
made under clause 1(5)
- inform the Committee of such publication
- allow the Committee a period of 30 sitting days
in which to report to the House on the draft instrument
- agree that no motion to approve may be made until
either the period of 30 sitting days has elapsed or the Committee
reported to the House on the draft instrument, whichever occurs
first.
The memorandum of understanding should make it clear
for what period of time such an arrangement should apply. It should
also provide for the possibility that an exception could be made
to this arrangement in circumstances of genuine emergency. (Paragraph
184)
45. If such a process
were adopted, the Committee would have flexibility to decide either
to call for evidence on the draft regulation or order and to examine
it thoroughly, or to decide at an early stage that the draft regulation
or order did not warrant a thorough examination and to report
to the House that it had no matters to raise. (Paragraph 185)
Enforcement, prosecution and penalties
46. We
recommend that the clauses on enforcement should be set out in
the draft Bill as they would occur chronologically. The current
arrangement of the enforcement provisions in the draft Bill does
not follow a logical sequence, is unduly complicated and is difficult
to follow. (Paragraph 190)
47. Defra has acknowledged
that the period for which an animal taken into possession can
be retained needs to be reviewed. We recommend the retention of
the existing legal position, whereby there would not be a time
limit on the retention of an animal in distress but its owner
would have the immediate right to apply to court for its return.
(Paragraph 195)
48. We recommend that
the current provisions on reimbursement of reasonable costs in
the Protection of Animals (Amendment) Act 2000 should be reflected
throughout the draft Bill, so that inspectors and prosecutors
are able to be reimbursed only for reasonable costs incurred by
them in the performance of their functions under the Bill. (Paragraph
199)
49. We are satisfied
it is appropriate that constables and inspectors should be empowered
to authorise the killing of a protected animal where there is
no reasonable alternative. However, we consider that constables
and inspectors would be greatly assisted in their functions if
the term "reasonable alternative" was defined in the
Bill. Furthermore, we seek assurances from the Government that
those persons tasked with animal inspection work will be properly
trained in animal behaviour so as to recognise when it will be
necessary to kill an animal; constables and inspectors should
also be trained to kill an animal in as humane a way as possible.
(Paragraph 203)
50. We consider that
the powers contained in clauses 39 and 40 are appropriate. We
believe that the serious nature of offences against animals justifies
empowering constables and inspectors to enter premises, other
than premises used solely as private dwellings, without a warrant
on the basis of reasonable suspicion or belief that an offence
is being or has been committed or that evidence of a relevant
offence is on the premises.
(Paragraph 206)
51. To avoid confusion,
we recommend that the Government amend the Bill to clarify what
is meant by "any part of premises which is used as a private
dwelling." (Paragraph 208)
52. We endorse the
underlying intention of the powers of entry in the draft Bill,
namely that inspectors and constables should not be permitted
to enter a private dwelling unless they have first obtained a
warrant. We recommend that the Bill should provide greater powers
of entry so that entry would not be permitted, without a warrant,
to premises used only as a private dwelling. This would allow
inspectors to enter premises used as both business premises and
private dwellings, such as farm premises, without a warrant. (Paragraph
214)
53. We recommend that
the Government give consideration to implementing the suggestion
made by the Association of Chief Police Officers that one set
of justifications should be adopted, instead of different powers
in different statutes, setting out the circumstances in which
a private dwelling may be entered without a warrant. (Paragraph
215)
54. Given that both
inspectors and constables will be exercising the powers of entry
and search under the draft Bill, we recommend that the draft Bill
should be amended to include a requirement that the codes of practice
issued under the Police and Criminal Evidence Act 1984 in connection
with the exercise of those powers should be complied with when
exercising search and entry powers under the Bill. (Paragraph
218)
55. As currently drafted,
there is nothing in the draft Bill to prevent an RSPCA inspector,
or an employee of any other charitable organisation, from being
appointed as an inspector under the legislation, because the Secretary
of State is not prevented from including them on a list of suitable
persons. We have only Defra's stated intention that the list will
extend to only the State Veterinary Service and local authorities.
If this is indeed Defra's intention, then we recommend that it
should be specified on the face of the Bill. Currently, the draft
Bill effectively delegates an unlimited power to the Secretary
of State to decide who may act as an inspector. At the very least,
the Bill should specify the appropriate categories of person or
'characteristics' of persons who may be appointed to the role.
We further recommend that the draft Bill be amended to specify
how inspectors will be appointed in Wales: currently, clause 44
makes reference only to the Secretary of State; no mention is
made of the National Assembly for Wales. (Paragraph 224)
56. We believe that
the RSPCA has performed a valuable role in ensuring animal welfare,
and that it should be encouraged to continue to do so. Nevertheless,
it is a ultimately a charitable body and therefore should have
a separate and distinct role from "inspectors" appointed
to enforce the draft Bill. To avoid confusion with the RSPCA's
own inspectors, we recommend that the Government consider changing
the term "inspector" in the draft Bill to "approved
person", "approved officer", or some other term
that sits appropriately with relevant legislation. (Paragraph
226)
57. We recommend that
the draft Bill should be amended to ensure that the standard with
which an inspector must comply in order not to be held criminally
or civilly liable is the same as the standard applied to constables
exercising equivalent powers. (Paragraph 228)
58. We consider that
it is imperative that there is consistency in animal welfare enforcement
between local authorities. It is most unsatisfactory and inequitable
to have different standards of enforcement in different regions.
We therefore recommend that the Government should adopt a system,
such as a database, to ensure that enforcement across licensing
departments in England and Wales is consistent. The information
should be entered and held by local authorities. Although the
RSPCA should be permitted to have access to the information, we
consider it wholly inappropriate that the RSPCA should be given
responsibility for compiling and maintaining the database. (Paragraph
233)
59. We recommend that
provision should be made to provide that compensation may be made
available to persons whose animals have been dealt with under
clauses 16 or 17 but who have subsequently been acquitted of any
animal welfare charges. The draft Bill should be amended to specify
and limit the circumstances in which a court can order the slaughter
of an animal. It should specify that the court can make such an
order only where no reasonable or humane alternative exists. (Paragraph
236)
60. We consider that
improvement notices would assist in ensuring that proceedings
are commenced only in appropriate cases. They would not only save
court time but could also encourage owners to improve standards
of animal welfare. We recommend that, although enforcement agencies
should have a discretion to issue improvement notices for protected
animals, that discretion and the relevant procedural requirements
should be specified on the face of the Bill. This should include
a right of appeal on the part of the person to whom an improvement
notice is issued. (Paragraph 242)
61. We recommend that
clause 15(2)(c) be deleted from the Bill if the Government is
unable to demonstrate a convincing reason for its inclusion. The
Government should explain to whom it intends the powers of a prosecutor
would be delegated under clause 15(2)(c) if it is not to the RSPCA.
We consider it wholly inappropriate that prosecution powers under
the draft Bill should be able to be exercised by any organisation
other than the Police, the State Veterinary Service and local
authorities. (Paragraph 250)
62. we consider that
the RSPCA should be able to continue to institute private prosecutions
on its own behalf. (Paragraph 258)
63. We consider that
the gravity of the offences under the draft Bill should be reflected
in increased sentencing powers. We recommend that certain offences
should be triable 'either way'—that is, either summary or
indictable—in order to give the courts the ability to impose
longer sentences in appropriate cases, and we urge Defra to take
this matter up with the Home Office. The offences which should
be triable 'either way' should be the clause 2 fighting offence
and the most serious cruelty offences under clause 1. We note
that such offences would necessarily involve premeditation, whereas
a welfare offence might not necessarily be intentional. (Paragraph
264)
64. We welcome the
Government's intention to close the loophole in the current provisions
on disqualification by ensuring that an offender cannot circumvent
disqualification by transferring ownership and, therefore, custody
of an animal. However, we consider that clause 26 does not achieve
this intention and we therefore recommend that the activities
prohibited by clause 26 of the draft Bill should be extended
to include "having custody, control or the power to control
animals". (Paragraph 267)
65. We recommend that
fighting should automatically attract a disqualification order.
We further recommend that certain animal cruelty offences carried
out for a profit, such as making 'snuff' videos, should also attract
automatic disqualification to reflect the seriousness of the offence.
(Paragraph 269)
Defra's Regulatory Impact Assessment
66. Given
that Defra has had well over two years since its initial consultation
on the draft Bill in January 2002, we are both surprised and concerned
that the appraisal of alternatives to regulation in the Regulatory
Impact Assessment accompanying the draft Bill is not better developed.
Defra's excessively simplistic assessment of options fails to
quantify the benefits of the legislation or its alternatives,
which limits Defra's ability to demonstrate that the benefits
of the proposed legislation would exceed the costs. (Paragraph
274)
67. Defra's assessment
of the probable enforcement costs arising from the implementation
of the legislation as "negligible" appears to us to
be simplistic in the extreme, for the following reasons:
- Defra appears to have ignored
the probable increase—at least initially—in prosecution
and conviction numbers from the new offences which the draft Bill
would create.
- Defra does not appear to have
accounted for the fact that proposals in secondary legislation
will require appropriately skilled personnel to provide enforcement
and inspection services and veterinary expertise in newly regulated
areas such as animal sanctuaries, livery yards and greyhound tracks.
We received evidence suggesting that there is a significant skills
shortage in these areas and we are therefore concerned that the
Regulatory Impact Assessment does not quantify what extra resources
will be required nor how they will be provided. The Regulatory
Impact Assessment states that "each piece of secondary legislation
will be subject to a separate RIA and consultation once it is
decided to take forward work on that particular regulation/order",
which suggests to us that Defra has given no detailed consideration
to the likely resource implications of its proposed secondary
legislation.
- Defra has proposed that local authorities should
operate their licensing services on the basis of full cost recovery,
yet the practicalities of this proposal are nowhere discussed
in the Regulatory Impact Assessment. (Paragraph 282)
68. We
consider that the Regulatory Impact Assessment accompanying the
draft Bill fails to demonstrate that the benefits of the proposed
legislation would exceed the costs, as is required by Cabinet
Office and National Audit Office guidance. The Regulatory Impact
Assessment shows evidence of a lack of thorough consideration,
on the part of Defra, about the likely consequences of enacting
the draft Bill. It fails to demonstrate what measurable benefits
would arise from enactment and provides only weakly evidenced
and limited cost information. We are concerned that Defra's poor
assessment of the likely long-term implications of the draft Bill,
together with the extent to which Defra proposes to defer policy
decisions to secondary legislation, indicates that Defra is not
yet properly prepared to legislate in this area. We therefore
consider that the Regulatory Impact Assessment lacks credibility
and provides an inadequate basis for pre-legislative scrutiny.
(Paragraph 283)
69. Consequently,
we recommend that, before a final Bill is introduced to Parliament,
Defra produces a new Regulatory Impact Assessment which better
meets the requirements of Cabinet Office and National Audit Office
guidance. The revised Regulatory Impact Assessment should include:
- a more thorough options appraisal
- a quantification of benefits
- a more comprehensive consideration of costs,
including the costs of secondary legislation
- evidence to demonstrate that full cost recovery
by local authorities is a realistic operational objective, and
- evidence to demonstrate that sufficient appropriately
skilled personnel exist to provide enforcement and inspection
services and veterinary expertise in newly regulated areas such
as animal sanctuaries, livery yards and greyhound tracks. If such
evidence is not available, Defra should explain how it proposes
to address this shortage. (Paragraph 284)
70. We
also recommend that, in order to gauge whether costs are accurately
reflected in its Regulatory Impact Assessment, Defra consults
with the appropriate authorities about the likely costs of enforcement,
licensing and inspection. (Paragraph 285)
Proposed and possible secondary legislation and
codes of practice
71. We
recommend that, at such time as the Bill may be introduced to
Parliament, the Government clarify its reference in annex L to
the Regulatory Impact Assessment to regulations it intends to
make within a year of the Bill's enactment that would effectively
"define" the clause 3 welfare offence. Such regulations
would appear to be in addition to the proposed regulations about
which the Government has provided details in the annexes to the
RIA. (Paragraph 291)
72. We recommend that,
at the same time, the Government also clarify its reference in
annex L to regulations it intends to make within a year of the
Bill's enactment in order to regulate means of selling animals,
other than pet shops and pet fairs. (Paragraph 292)
Proposed first tranche of secondary legislation
and codes of practice
73. We
are concerned that Defra has not set out in the draft Bill document
any detail on its proposals to license riding schools, dog and
cat boarding establishments and pet shops, given that it intends
to implement these proposals within a year of the Bill being enacted.
A clear indication of the policy which Defra intends to implement
in respect of these businesses should be made available if and
when the final Bill is introduced to Parliament. (Paragraph 299)
74. At this stage,
we support Defra's proposal to introduce mandatory licensing and
inspection for all livery yards in England. (Paragraph 301)
75. We consider it
vital that the legal status of pet fairs be clarified. Obviously,
the confusion caused by the wording of the Pet Animals Act 1951
is most unsatisfactory. Given the current situation is so murky,
and that the ethics of pet fairs are so hotly contested, we are
extremely concerned that Defra appears to have assumed that it
should legislate so that pet fairs are clearly legal, without
first consulting widely on this issue. Defra appears to have proceeded
straight to the question of asking how pet fairs should be regulated,
without first asking whether they should be clearly legalised.
This is a significant deficiency in the approach adopted by Defra
in updating animal welfare legislation. We recommend that, before
Defra proceeds to draft regulations which would repeal the 1951
Act and introduce, in its place, a licensing regime on pet fairs,
it first consult on whether pet fairs should be made unequivocally
legal. (Paragraph 316)
76. We recommend
that Defra reappraise the basis on which its proposed regime for
licensing pet fairs is predicated.
(Paragraph 317)
77. We do not support
Defra's proposal to introduce 18-month licences, rather than annual
licences, in respect of licensing of circuses, pet fairs, livery
yards or animal sanctuaries, or in respect of any other business
currently licensed under animal welfare legislation. The proposal
would reduce the frequency with which businesses or premises would
be inspected, and would therefore not promote the highest standards
of animal welfare because it would increase the period of time
during which breaches of legislation could go undetected. We consider
that any possible benefits to business offered by a shift to 18-month
licences are outweighed by animal welfare considerations. In particular,
we consider 18-month licences would be entirely inappropriate
for itinerant, annual, often one-off events, such as pet fairs.
We therefore recommend that Defra does not pursue its proposal
to replace annual licences with 18-month licences. In respect
of pet fairs and similar events, we recommend that a licence for
a pet fair should apply to a single event only, and that each
separate event should require a separate licence. (Paragraph 320)
78. We recommend that
vet-accompanied inspections of livery yards, animal sanctuaries
and dog and cat boarding establishments should be required at
least every two years, rather than Defra's proposed requirement
of only once every five years. If Defra accepts our recommendation
to provide for annual licences, rather than the proposed 18-month
licences, then a vet-accompanied inspection should be required
every two years—at the time of application and at every
second licence renewal thereafter. If Defra proceeds with its
proposal to introduce 18-month licences, then a vet-accompanied
inspection should be required every 18 months—at the time
of application and at every licence renewal thereafter. (Paragraph
323)
79. We commend Defra
on its proposed scheme to require pet vendors to issue appropriate
information about animal husbandry and care at the point of sale.
However, we are concerned that Defra has apparently failed to
consider extending this requirement beyond pet shops and dog breeding
establishments to other vendors of pet animals, such as vendors
at pet fairs and at other types of breeding establishments. We
therefore recommend that the proposed scheme be extended to other
vendors of pet animals. We recommend that the information which
vendors are required to provide to prospective and actual purchasers
should be able to be provided by the Pet Care Trust only if Defra
first institutes a system whereby the information is checked by
an independent, expert source prior to being published. (Paragraph
327)
80. If electronic
shock collars and perimeter fence devices have indeed been in
use in the UK for 13 years now, as one submitter claimed, then
we are surprised that Defra has not yet undertaken sufficient
research into these devices in order to have formed an opinion
of them, particularly given the controversy surrounding their
use. We urge Defra to undertake a process of consultation and
research about the possible regulation of these devices as soon
as possible. (Paragraph 333)
81. At this stage,
it seems to us that an appropriate approach to electronic shock
collars and perimeter fence devices would be to outlaw their use
for purposes of training except, perhaps, with the exception of
suitably licensed veterinarians. On the basis of the evidence
we have received, we do not oppose the use of these devices to
contain dogs within a particular area without the need for fences.
(Paragraph 334)
82. We consider that
tail docking in dogs should be banned for cosmetic reasons. Tail
docking should continue to be permitted for therapeutic reasons,
where it is in an animal's best welfare interests. The question
of allowing an exemption for prophylactic docking for certain
breeds or types of working dogs is more difficult. For example,
there is a risk that a whole litter of puppies which might one
day be used as working dogs could be docked as a precautionary
measure. Unless there is a system to guarantee that a docked puppy
will be used as a working dog, an exemption for prophylactic docking
risks being abused. (Paragraph 340)
83. We therefore support
Defra's proposed position on this issue. To prevent an abuse of
any exemption for prophylactic docking, we recommend that a puppy's
tail should be permitted to be docked for prophylactic reasons
only where the following conditions are met:
- as is currently required by
law, tail docking should be carried out only by a veterinarian
- the veterinarian should take all reasonable steps
to satisfy him or herself that the puppy is of a specified breed
of dog, generally used as a working dog, or that the puppy is
likely to be used as a specified type of working dog
- the veterinarian should be required to maintain
records demonstrating why he or she was satisfied that these conditions
were met—for example, a gun licence
- the veterinarian should be required to microchip
any puppy which he or she docks; the microchip should contain
the details of the veterinarian who docked the puppy, and
- the veterinarian should provide the owner with
a certificate endorsing the tail docking; the certificate should
include the details of the veterinarian who carried out the procedure.
(Paragraph 341)
84. We
recommend that, prior to drawing up a draft code of practice on
the rearing of game birds for sport shooting purposes, Defra should
ensure that it has consulted with a broad range of groups and
individuals with an interest in this area, including those groups
which are critical of current game bird rearing practices. The
Government should ensure that it has solid data on the numbers
of game farms in England and Wales and the scale of these farms.
(Paragraph 352)
85. On the basis of
the evidence we have received, we do not support the existing
Game Farmers' Association code of practice being adopted as a
statutory code of practice under clause 7 without further consideration
first being given to the appropriateness of certain rearing practices,
including beak trimming and burning and the fitting of bits, masks
and spectacles. We consider that gamekeepers should be required
to try other methods first before resorting to these practices,
as currently appears to be the requirement in relation to tail
docking in piglets. (Paragraph 353)
86. We are also concerned
that, of the game birds being reared, only 40% end up being shot.
However, we have heard insufficient evidence to draw any firm
conclusion on this issue. (Paragraph 354
87. We do not consider
that gamekeepers should continue to be responsible for taking
reasonable steps to ensure the welfare of game birds once they
have been released into the wild, in terms of the clause 3 welfare
offence. However, as the draft Bill stands, we consider there
is scope for prosecutions to be brought in this respect. We recommend
that the Government ensure that the protection provided by the
draft Bill does not extend to game birds once they have been released
into the wild. (Paragraph 355)
88. We support Defra's
suggestion that vendors who sell pet animals over the internet
in England should be subject to a code of practice, issued under
clause 7, which would set out minimum welfare standards. However,
given that Defra describes its policy in this area as "to
be agreed", we doubt whether Defra will be in a position
to issue such a code of practice within a year of any Bill being
enacted, as is its stated intention. We recommend that the Government
assess whether it is really in a position to issue a code of practice
on internet trading within its intended timescale. (Paragraph
358)
89. Given the importance
of any secondary legislation made under a future Act for the practical
operation of the Act, we consider it is important that Parliament
should have some indication of what policies the Government is
proposing to implement under the delegated powers in the Act.
This is particularly crucial given the wide-ranging concerns that
have been raised in evidence about many aspects of the policies
proposed for implementation in the first tranche of secondary
legislation and codes of practice. We therefore recommend that
the Government publish revised details of its proposed policies
for implementation in the first tranche at such time as it may
introduce a final Bill to Parliament. (Paragraph 359)
Proposed second tranche of secondary legislation
and codes of practice
90. We
recommend that, prior to publishing any draft regulations providing
for the licensing and registration of animal sanctuaries, Defra
consult widely in order to produce a practical definition of what
types of establishment constitute an "animal sanctuary".
As part of this exercise, Defra will need to establish with greater
certainty how many animal sanctuaries there are in England. (Paragraph
367)
91. We recommend that
a licensing scheme should be extended to all animal sanctuaries,
regardless of their size. We acknowledge that the imposition of
the compliance costs associated with such a requirement may cause
some smaller sanctuaries to close down. On balance, however, we
consider it is more important that minimum animal welfare standards
be ensured across all sanctuaries.
(Paragraph 369)
92. We recommend that
Defra amends its proposals to license the use of performing animals
in circuses by distinguishing between the use of wild animals
and domesticated animals in circuses, with a view to prohibiting
the use of the former. Circuses should not be permitted either
to bring in new wild animals or to breed from their existing wild
animals. (Paragraph 381)
93. With this qualification,
we support Defra's proposals to license the use of performing
animals in circuses, television, films, theatre and promotional
work. However, we recommend that Defra clarify whether it proposes
to license the circus/organisation, the trainer or the animal.
We also recommend that Defra clarify what use it envisages being
made of registration requirements in these circumstances. (Paragraph
382)
94. We recommend that
any draft regulations proposing to implement a licensing regime
for the use of performing animals should specify that all personnel
who train, work with, supply or are responsible for supplying
animals must be licensed. Such personnel should be required to
attain a formal animal training qualification before they can
be licensed. (Paragraph 383)
95. We recommend that
Defra explain whether it intends to regulate international circuses
visiting England and, if so, how. (Paragraph 384)
96. We recommend that
Defra re-examine its rationale for exempting "amateur theatrical
productions" from any licensing or registration scheme. The
proposed exemption appears to be contrary to the draft Bill's
ultimate objective of improving animal welfare. (Paragraph 385)
97. We are unconvinced
by the argument that the greyhound racing industry should be allowed
until 2010 to regulate itself and improve its own welfare standards.
We accept that the British Greyhound Racing Board and the National
Greyhound Racing Club are making significant efforts to improve
welfare standards at NGRC-registered tracks, but their best efforts
cannot alter the fact that about 40% of greyhound racing tracks
are run independently of the NGRC, and therefore apparently operate
free from external, independent scrutiny. If these tracks do not
wish to register with the NGRC, they cannot be compelled to do
so. We therefore consider external, independent regulation of
these tracks is essential, and we do not consider that it would
be fair to exclude NGRC-registered tracks from such regulation.
(Paragraph 392)
98. We consider that
greyhound racing tracks should be subject to a licensing regime,
not a code of practice, and we therefore recommend that Defra
should publish draft regulations to address this issue as soon
as possible. We do not accept that regulation in this area should
wait until 2010, or five years after any future Bill is enacted.
(Paragraph 393)
Comments on the pre-legislative scrutiny process
99. We
welcome the extent to which Defra has chosen to involve itself
in our pre-legislative scrutiny process, and the helpful and open-minded
attitude adopted by the Minister and his officials in the course
of our oral evidence sessions with them. (Paragraph 395)
100. However, we consider
that this draft Bill was not an appropriate candidate for pre-legislative
scrutiny by Parliament in the absence of the Government having
first conducted its own consultation process. Defra last consulted
on this policy proposal two and a half years before the publication
of the draft Bill. Given the complexity of the proposal and the
widespread public interest in it, we consider that it should have
been subject to further consultation prior to being published
for the purposes of pre-legislative scrutiny. (Paragraph 396)
101. While it is not
always inappropriate for government departments to choose to rely
on Parliament's pre-legislative scrutiny process, rather than
conducting a separate consultation process in accordance with
Cabinet Office guidelines, we consider the Government should adopt
such an approach only where the policy behind a draft Bill has
recently been consulted on, or where the draft Bill is minor or
uncontroversial. Neither of these conditions were met in the case
of the draft Animal Welfare Bill. (Paragraph 398)
| 
