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Session 2005 - 06|
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|Animal Welfare Bill|
These Notes refer to the Animal Welfare Bill as introduced in the House of Commons on 13th October 2005 [Bill 58]
ANIMAL WELFARE BILL
1. These explanatory notes relate to the Animal Welfare Bill as introduced in the House of Commons on 13 October 2005. They have been prepared by the Department for Environment, Food and Rural Affairs (Defra) in order to assist the reader of the Bill and to help inform debate on it.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
3. The main purpose of this Bill is to bring together and update legislation that exists to promote the welfare of vertebrate animals other than those in the wild. The categories of animals that are protected under the Bill depend on the offence in question. For example, the duty to ensure an animal's welfare only applies in respect of animals that are owned or for which someone is responsible or in charge. In contrast, the cruelty and fighting offences have a wider application. The Bill has only limited application to animals in research establishments, the welfare of which is regulated by the Animals (Scientific Procedures) Act 1986. The Bill will make it possible to align welfare standards for farmed animals, which have generally kept in line with developments in scientific understanding, and non-farmed animals which are largely protected by laws formulated in the early twentieth century.
4. The legislation that this Bill repeals is set out in Schedule 4.
[Bill 58-EN] 54/1
5. A draft Bill was published in July 2004 (Cm 6252). The draft followed a public consultation conducted between 2 January 2002 and 30 April 2002. (Analysis of the responses to that consultation can be found on the Defra website at http://www.defra.gov.uk/animalh/welfare/domestic/awbillconsultanalysis.pdf.) In the second half of 2004, the House of Commons Select Committee on Environment, Food and Rural Affairs carried out pre-legislative scrutiny of the draft Bill. The Select Committee published its report on 8 December 2004 (HC 52-I and II). On 3 March 2005, Defra sent its response to the Committee (HC 385).
6. The Bill covers various aspects of animal welfare and clauses are grouped under 14 headings. These are as follows.
Introductory (Clauses 1 to 3): These clauses set out the scope of the Bill and define the different categories of animal to which the Bill applies.
Prevention of harm (Clauses 4 to 7): These clauses set out offences relating to cruelty and animal fighting.
Promotion of welfare (Clauses 8 to 10): These clauses set out specific offences which relate to the promotion of welfare. Clause 8 imposes a duty to ensure welfare and clause 9 relates to the sale of animals to persons under 16 and the giving of animals as prizes to unaccompanied under 16s. They also provide for the making of regulations for the purpose of promoting the welfare of animals protected under the Bill.
Licensing and registration (Clause 11): This clause confers power to bring into force regulations that will make activities involving animals licensable or registrable, and to deal with existing licensing or registration regimes relating to such activities.
Codes of practice (Clauses 12 to 15): These clauses contain details of the purpose and function of Codes of Practice along with details of how they will be made, amended and revoked.
Animals in distress (Clauses 16 to 18): These clauses describe the powers which an inspector or constable has to remove animals which are in distress and their powers to enter premises in order to do so. Among these powers are the powers to take the animal into possession or to destroy it. Further, they set out the procedure for the treatment, release, sale, other disposal or destruction of animals removed in such a way.
Enforcement powers (Clauses 19 to 25): These set out the enforcement powers contained in the Bill, including the powers of entry and search, seizure of animals and inspection under certain conditions.
Prosecutions (Clauses 26 and 27): These clauses give local authorities the power to prosecute proceedings for any offence under the Act and set time limits for such prosecutions.
Post-conviction powers (Clauses 28 to 39): These clauses set out the penalties available on conviction. They include imprisonment, fine, deprivation, disqualification, destruction, forfeiture of equipment and cancellation of licence.
Scotland (Clauses 40 to 44): these clauses make provision for disqualification orders under the Bill to apply across Great Britain and for the powers of the Scottish courts in relation to breach in Scotland of disqualification under the Bill.
General (Clauses 45 to 63)
Schedule 1 (Regulations under clause 11)
Schedule 2 (Powers of entry, inspection and search: supplementary)
Schedule 3 (Minor and consequential amendments)
Schedule 4 (Repeals)
7. The Bill extends to England and Wales. It extends to Scotland only in respect of (a) clause 40, which enables disqualification orders made by the courts in England and Wales to have force in Scotland, (b) clauses 41 to 44, which make provision about the powers of the Scottish courts in relation to enforcement in Scotland of disqualification orders under the Bill, (c) repeals of certain legislation and (d) commencement orders. It extends to Northern Ireland in respect of certain consequential and minor amendments only.
TERRITORIAL APPLICATION: WALES
8. In relation to England, all of the regulation and order making powers contained in the Bill are to be exercised by the Secretary of State. In relation to Wales all of those same powers are to be exercised by the National Assembly for Wales. Unlike in England, there is no parliamentary procedure for codes issued by the National Assembly for Wales. In all other respects the Bill affects England and Wales in the same way.
APPLICATION TO THE SEA
9. The Bill will apply to all inland waters (rivers, streams, lakes and ponds) and to estuaries. It will not apply to the sea.
COMMENTARY ON CLAUSES
Clause 1: Animals to which the Act applies
10. The Act will apply only to vertebrate animals, as these are currently the only demonstrably sentient animals. However, Clause 1(3) makes provision for the appropriate national authority to extend the Act to cover invertebrates in the future if they are satisfied on the basis of scientific evidence that these too are capable of experiencing pain or suffering.
11. In the case of Wales, the "appropriate national authority" means the National Assembly for Wales, and for England it means the Secretary of State.
Clause 2: "Protected Animal"
12. This clause, together with clause 3, establishes the scope of the principal offences under the Bill, by defining those animals which the Bill will cover. The cruelty and fighting offences (Clauses 4 - 7) extend to "protected animals" as defined in this clause, whereas the welfare offence (Clause 8) applies to animals for which a person is "responsible" as that word is to be understood under clause 3.
13. Animals that are of a kind commonly domesticated in the British Islands are to be "protected animals", whether they can be said to be under the control of man or not. This ensures that, for example, stray dogs and feral cats are covered. Kinds of animals which are to be considered commonly domesticated in the British Islands are those whose collective behaviour, life cycle, or physiology has been altered as a result of their breeding and living conditions being under human control, in the British Islands, for multiple generations.
14. Animals of a kind that is not commonly domesticated in the British Islands are only "protected animals" to the extent that they are under the control of man or are not living independently in the wild. "Under control" is intended to be a broader expression than "captive animal", which was used in an equivalent context in the Protection of Animals Act 1911 ("the 1911 Act"). The latter expression was interpreted narrowly in the courts. "Not living in a wild state" is intended to cover those animals which have ceased to be under the control of man, and therefore do not fall within clause 2(b), but are not yet living wild, including (though not limited to) animals which have escaped, for example from a zoo or circus.
Clause 3: Responsibility for animals
15. Clauses 4(2), 5(2), 6(2), and 8 only apply to persons who are "responsible for an animal" as that phrase is understood under this clause. Similarly, the regulation-making power in clause 10 can be exercised only in relation to animals for which a person is responsible. The same is true for licensing and registration provisions under clause 11.
16. Responsibility for an animal is only intended to arise where a person can be said to have assumed responsibility for its day-to-day care or for its care for a specific purpose or by virtue of owning it. This will include a person who assumes responsibility for the animal temporarily (subsection (1)) such as, for example, a veterinary surgeon, staff at boarding premises, and staff at animal sanctuaries.
Prevention of harm
Clause 4: Unnecessary Suffering
17. The 1911 Act makes it an offence to cause unnecessary suffering to any domestic or captive animal, with limited exceptions including suffering caused under the Animals (Scientific Procedures) Act 1986. The 1911 Act has formed the basis for most prosecutions concerning animal cruelty and has been amended by several subsequent Acts. The provisions of the 1911 Act no longer reflect modern practice. Excepting the restriction to vertebrates, this clause is intended to replicate the protection provided by the 1911 Act, but to simplify and update the legislation.
18. Subsection (1) sets out the circumstances in which a person who causes an animal to suffer commits an offence. It will be an offence to cause physical or mental suffering, whether this is by a positive act or an omission, to a protected animal where this is unnecessary and the person knew or could be expected to know that an animal would suffer as a result. The effect of paragraph (b) is to introduce an objective mental element. It will not be necessary to prove that a defendant actually knew his act or failure to act would cause suffering.
19. Subsection (2) provides that a person responsible for an animal who permits another person to cause unnecessary suffering will commit an offence. He will also commit an offence if he fails to take reasonable steps to prevent the suffering from taking place, for example, a failure of supervision. An offence of 'permitting' unnecessary suffering caused by another can only be committed by a person in relation to an animal for which he is responsible. See further clause 3.
20. Subsection (3) sets out considerations to which the courts should have regard in determining whether the suffering is unnecessary. Considerations focus on the necessity, proportionality, humanity and competence of the conduct. The court should take all relevant considerations into account, weighing them against each other as appropriate. Where, for example, a horse suffers while being used for the purpose of riot control, this may well be considered necessary for the purposes of protecting persons or property (one of the considerations specified in the clause). Or, where legitimate pest control activities entail an animal suffering, a court may consider whether this was in compliance with a relevant enactment, for a legitimate purpose, and proportionate to that purpose. The court would also consider the extent to which the suffering could reasonably have been avoided or reduced (another of the considerations specified in the clause). Where suffering inevitably occurs in the course of complying with any regulations, licence or code of practice an offence would not normally be committed.
Clause 5: Mutilation
21. This clause prohibits the mutilation (referred to as a "prohibited procedure") of any protected animal unless the procedure has been exempted from the general prohibition by regulations made under subsection (4). The expression "protected animal" is defined in clause 2.
22. Subsection (3) defines the term "carrying-out of a prohibited procedure". This definition is based on the definition of "mutilation" adopted by the Royal College of Veterinary Surgeons.
23. Subsection (4) makes provision for the Secretary of State and the National Assembly for Wales to specify procedures which will be exempted from subsections (1) and (2). The intention would be to bring clause 5 into force only at such a time as exemption regulations under subsection (4) is also brought into force.
24. Subsection (5) imposes a duty on the Secretary of State and the National Assembly for Wales to consult before introducing regulations under subsection (4).
Clause 6: Administration of poisons etc
25. This provision, which replaces section 1(1)(d) of the 1911 Act, creates offences relating to the administration to a protected animal of any poisonous substance or drug where the person has no lawful authority or excuse.
26. Under subsection (2), when a person is responsible for an animal, he must not permit another person to administer a poisonous or injurious substance or drug to the animal, unless that person has a lawful authority or excuse. Furthermore, a person responsible for an animal must take reasonable steps to prevent any other person from administering any drug or substance that he knows to be poisonous or injurious to the animal.
27. Under this clause it is not necessary to show that the animal did in fact suffer as a result of the prohibited action in order to establish liability. It is, however, necessary to show that the person accused of the offence knew the poisonous nature of the substance administered to the animal.
28. Subsection (3) provides for the offences in subsections (1) and (2) to apply in cases where substances that are otherwise harmless have been administered in a harmful quantity or way.
Clause 7: Fighting etc
29. This clause creates a specific offence of animal fighting, which in the 1911 Act was subsumed under the general heading of "offences of cruelty".
30. The offences under the clause replace the offences under sections 1(1)(c), 5A and 5B of the 1911 Act.
31. Subsections (1) and (2) penalise various forms of involvement in an animal fight. The majority of the specific offences contained in the 1911 Act relating to advertising a fight, allowing premises to be used, accepting money for admission to an animal fight etc, are covered by subsection (1)(a) and (b). Some of the offences under this clause can be committed without a fight having taken place.
32. Subsection (3) defines an animal fight as an occasion on which a protected animal is placed with an animal or with a human, for the purpose of fighting, wrestling or baiting. The provision applies to any protected animal which under clause 2 includes any animal under the control of man, whether on a permanent or temporary basis. As a result, a person commits an offence in relation to an animal fight even if there is no one who is responsible for either animal within the meaning of clause 3.
33. Legitimate pest control activities which involve the use of one animal to catch another will not fall within the definition of an animal fight, as the animals are not placed together for the purpose of fighting, wrestling or baiting.
Promotion of welfare
Clause 8: Duty of person responsible for animal to ensure welfare
34. The welfare offence in this clause extends similar provisions found in the Welfare of Farmed Animals (England) Regulations 2000 (made under the Agriculture (Miscellaneous Provisions) Act 1968), which ensure the welfare of livestock situated on agricultural land, to non-farmed animals. A duty to ensure welfare will therefore apply to all animals for which someone is responsible, as defined in clause 3. Where someone is responsible for an animal, he has a duty to take steps that are reasonable in all the circumstances to ensure its needs are met to the extent required by good practice (subsection (1)).
35. Note that the duty will apply when a person abandons an animal for which he is responsible. The Abandonment of Animals Act 1960 is repealed and effectively replaced by this clause, and anyone who leaves an animal without taking reasonable steps to ensure that it is capable of fending for itself and living independently will commit an offence under clause 8.
36. Note also that when a person transfers responsibility for an animal to another temporarily, the duty will apply in so far as he must ensure that the person to whom he transfers responsibility will care for it appropriately. Whether he fulfils his duty will depend on whether the steps he took to ascertain the competence of the person to whom he transferred responsibility were "reasonable in all the circumstances" under clause 8(1).
37. Subsection (2) specifies the needs that a person responsible for an animal is required to meet (to the extent required by good practice), in order to avoid committing an offence under the clause.
38. Subsection (3) specifies certain matters to which the courts should, in particular, have regard, when considering whether a person has committed an offence under this clause. The provision recognises that some otherwise lawful practices may prevent or hinder a person from ensuring that all of the welfare needs specified in subsection (2) can be met, and requires the courts to take such practices into account when considering what is reasonable in the circumstances of the case.
39. Subsection (4) clarifies that the killing of an animal is not in itself inconsistent with the duty to ensure its welfare, if done in an appropriate and humane manner.
Clause 9: Transfer of animals by way of sale or prize to persons under 16
40. Subsections (1) and (2) prohibit vendors from selling animals to any person under 16 in circumstances where they have reasonable cause to believe that the person is under 16. The prohibition applies equally to the direct sale of an animal and to any indirect sale that may accompany an otherwise legal transaction. The clause extends the scope of the existing offence in section 3 of the Pet Animals Act 1951, which prohibits the sale of pet animals to children under 12.
41. Subsections (3) - (4) provide that it is an offence to enter into an arrangement with a person reasonably believed to be under 16, who is not accompanied by an adult, whereby an animal is to be won as a prize, except in the circumstances specified.
Clause 10: Regulations to promote welfare
42. Clause 10 enables the Secretary of State and the National Assembly for Wales to make regulations, subject to affirmative resolution by Parliament, to promote the welfare of animals for which a person is responsible, or the progeny of such animals. Including the progeny of animals in this regulation-making power enables regulations to be introduced governing animal breeding that protect the offspring as well as the dam or sire.
43. Subsection (1) creates a general power to make regulations for the purpose of promoting the welfare of animals for which someone is responsible.
44. Subsection (2) provides a non-exhaustive list of purposes for which the regulation-making power in subsection (1) may be exercised. This includes power to make regulations specifying how people responsible for animals should meet their animals' needs (clause 56(5) provides that an "animal's needs" are to be understood as they are under clause 8(2)).
45. Subsection (3) authorises the appropriate national authority to make it an offence to breach specified provisions of the regulations and confers associated powers. The power to apply a "relevant post-conviction power" in relation to conviction for an offence under the regulations enables the regulations to provide that conviction for certain offences will have certain consequences. For example, the regulations could provide that, on conviction for breach of a specified regulation, the court should have power to disqualify a person from owning animals under clause 30. The phrase "relevant post-conviction power" is defined at clause 56(6).
46. Subsection (6) imposes a duty on the Secretary of State and the National Assembly for Wales to consult interested parties before introducing regulations under this clause.
Licensing and registration
Clause 11: Licensing or registration of activities involving animals
47. Under subsection (1) regulations made for the purpose of promoting animal welfare may require certain animal-related activities to be licensed by the local authority or appropriate national authority. At present, licensing regimes contain many identical or similar provisions and are to be found in a variety of statutes and secondary legislation.
48. Under subsection (3) activities may be subject to a registration rather than a licensing requirement. The registration procedure would be used in cases where it is necessary for the enforcement authority to know of the existence and location of organisations or individuals who are keeping specific animals or carrying on particular activities, but where the additional controls and costs of a licensing regime are either unnecessary or would be unduly burdensome.
49. Subsection (5) provides that licensing and registration requirements may only be introduced for the purposes of promoting the welfare of animals for which someone is responsible, and their progeny.
50. Subsection (6) provides that it is an offence to operate an activity for which a licence or registration is required without being licensed or registered. Schedule 1 makes further provision about licensing and registration under this power; see the relevant explanatory note.
51. Subsection (7) enables the Secretary of State or the National Assembly for Wales to set out the regimes attaching to a licence or registration requirement in regulations. As now, licensing and registration will normally be the responsibility of the local authority, though under the Bill it would be possible in principle to fulfil this function centrally. Regarding entry and inspection in connection with licensed and registered activities, see the explanatory notes for clauses 22 and 23 respectively.
52. Subsection (8) enables the Secretary of State or National Assembly for Wales to repeal the provisions of existing Acts that impose licence or registration requirements relating to activities involving animals. Other provisions of the relevant Acts which assume the existence of the licence or registration requirement may be consequentially repealed (see paragraph 19(2) of Schedule 1). The power will be exercised where it is decided to replace provision for licensing or registration in an existing Act with provision for licensing or registration in regulations. The power will also enable provision for licensing or registration in an existing Act to be disposed of without replacement should that be considered appropriate.
Codes of practice
Clause 12: Codes of practice
53. Codes of practice are already widely used to promote the welfare of farmed animals and the Bill extends their use to non-farmed animals. The existing codes on the welfare of farmed animals, which have been made under section 3 of the Agriculture (Miscellaneous Provisions) Act 1968, will be treated as if issued under the Bill when its provisions come into force. New codes will be made in relation to other situations.
54. Codes provide non-binding guidance - agreed by Parliament after appropriate consultation - that enforcers and the courts can refer to when making judgements on whether the relevant welfare standards stipulated in the Bill have been attained. Owners and keepers of animals may also find the codes a useful resource by which to increase or confirm their understanding of acceptable welfare standards and to regulate their conduct accordingly.
Clause 13: Making and approval of codes of practice: England
55. Subsections (1) to (4) of clause 13 provide that codes of practice shall only be issued following consultation with relevant interest groups and subject to parliamentary approval under a version of the negative resolution procedure to which statutory instruments are sometimes subject.
56. Subsection (5) makes provision for commencement orders.
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