Memorandum submitted by the Environment
Agency
There are a number of issues that need clarification
in relation to the applicability of the provisions of the Animal
Welfare Bill to angling and fishing activities in particular whether
angling could be caught (and therefore anglers could be committing
offences under the Bill) by these provisions. The following points
are relevant in this context:
1. The definition of "animal"
in the Bill [Clause 53] is "a vertebrate other than man"
and vertebrate means "any animal of the Sub-phylum Vertebrata
of the Phylum Chordata". Does this include fish given that
the dictionary definition of "fish" in the Cassell Concise
Dictionary is "cold-blooded vertebrate animal"? This
is relevant when considering the applicability of Clause 3 to
angling (see below). Fish are not mentioned specifically in the
Bill.
2. The definition of "protected animal"
in relation to offences of cruelty in Clause 1 generally covers
domesticated animals. However the definition of "protected
animal" in Clause 54(2)(b) covers non-domesticated animals
that are being kept by man or temporarily in the custody or control
of man. This could include wild fish that have been caught and
kept by man in a keepnet or some such container eg livebait kept
in a container prior to use.
3. The cruelty offences in Clause 1 require
a number of conditions to be met namely that an act causes an
animal to suffer; the person knew or ought to have known that
his act would have such an effect; the animal is a protected animal,
and the suffering is unnecessary. Given what is said above in
relation to "protected animals" this clause could apply
to fish and the question would be whether there is any suffering
and whether it is necessary in relation to treatment of fish.
The use of livebait could come within the ambit of Clause 1 although
one of the considerations as to whether suffering is unnecessary
is whether the conduct which caused the suffering was in compliance
with any relevant statutory provisions, regulations, licence or
code [Clause 1(3)(b)] which may include Byelaws. The cruelty provision
could also cover keeping of fish in overstocked/crowded waters
if suffering could be proved and thus may extend to fish in fish
farms.
4. The offence in Clause 3 relates to animals
alone and makes keepers liable for failure to ensure an animal's
welfare. Keeper includes someone who owns an animal or is responsible
or in charge of an animal. Arguably this could include an angler
once he has caught a fish and got it in his possession although
there may be a temporal aspect in that any fish caught is not
"kept" for very long as it is usually returned to the
water or killed. The issue would then be whether the fish's welfare
has been ensured whilst in captivity eg is being kept in a keepnet
consistent with the requirements of Clause 3(4) and 3(5). Clause
3(6) does allow the killing of an animal in an appropriate and
humane manner. This clause could also catch fishery owners who
keep fish in such a way that they are prone to injury or disease
because of the way the fish are kept in ponds etc. The key provision
is the interpretation of animal welfare in Clause 3(4) and 3(5)
and whether the keeping of fish fits into those provisions.
5. The Bill may not be intended to regulate
fishing and fish but without explicit exemptions for fish or fishing
activities the clauses can be interpreted to cover fish and thus
attempt to be used to prevent some fishing activities although
it should be noted that only the local authority may prosecute
proceedings under the Bill [Clause 42].
1 September 2004
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