Memorandum submitted by Defra
I am grateful to you and the members of the
Select Committee for your continuing interest in the Animal Welfare
Bill, and for the opportunity you have offered Ben Bradshaw to
give further evidence about the Bill on 15 November.
In advance of that meeting, I am enclosing a
paper that explains the principal differences between the Animal
Welfare Bill, as introduced in the House of Commons on 13 October,
and the draft Bill, published last year. The paper, which deals
with substantive rather than drafting changes, should be read
in the light of your report of 8 December, 2004 and my response
of 14 February, 2005.
I look forward to reading the Committee's report
in due course, and to further debate as the Bill continues its
passage through Parliament.
1. This paper explains the key differences
between the draft Animal Welfare Bill published in July 2004 and
the Bill as introduced in the House of Commons on 13 October 2005.
It should be read alongside the Government's response of 14 February
2005[1]
to the EFRA Select Committee's report of 8 December 2005.
2. The paper is arranged around eight central
themes: scope; cruelty offences; welfare offences; delegated powers;
animals in distress; enforcement powers; prosecutions; and post-conviction
powers. The paper deals only with important, substantive changes
to the draft Bill, passing over minor, drafting changes.
3. In response to a recommendation of the
EFRA Committee we have rearranged the Bill, to make it clearer
and more simple. Unless otherwise stated, references throughout
this paper are to Clause numbers in the Bill as introduced on
13 October.
4. Annexed to this paper are two tables,
enabling readers of the draft Bill to find the comparable clauses
in the Bill as introduced on 13 October (Annex A), and vice versa
(Annex B).
SCOPE OF
THE BILL
Animals to which the Act applies: Clauses 1 and
52
5. We have accepted EFRA's recommendations
1-3, and included a new subsection (4) in Clause 1. This now sets
out the criteria according to which the power to extend the Act's
application may be exercised. We agreed that this power should
be exercised only on the basis of scientific evidence.
6. We have limited Clause 1(4), however,
by requiring scientific evidence of the capacity of invertebrates
to experience pain and suffering. We do not agree that evidence
of a capacity to experience "distress and lasting harm",
without evidence of a capacity also to experience pain and suffering,
should be sufficient for extending the Bill's application. That
would be inconsistent with the offences in Clauses 4-7 of the
Bill, which are based on causing pain and suffering.
7. The evidence for including cephalopods
and crustaceans in the Bill remains under review, and we await
the outcome of ongoing deliberations within the Europe Union on
this matter.
8. Our policy not to apply the Bill to animals
held under an ASPA [Animals (Scientific Procedures) Act 1986]
licence is unchanged.
9. However, a number of drafting amendments
have been made to this Clause to ensure that our policy aim of
preserving the status quo regarding these animals is achieved.
Rather than exclude the application of the whole Bill with a saving
provision for the cruelty and fighting offences, new Clause 52
excludes particular parts of the Bill on designated premises.
— subsection 2 excludes powers of inspection
and search from being exercised on designated premises, save for
Clause 24 powers to enter farming premises. This will ensure that
inspections in connection with animals kept on designated premises
will generally be the responsibility of the Home Office. The power
to enter farming premises has been included so that the current
power to enter and conduct searches and inspections on "dual
purpose farms" under the Agriculture (Miscellaneous Provisions)
Act 1968 is preserved. This will give responsibility for animals
kept on designated premises for farming purposes to inspectors
acting under the provisions of the Animal Welfare Bill.
— subsection 3 excludes the welfare
offence from application to animals kept, bred, kept for breeding,
or kept for supply, for use in regulated procedures. The welfare
of these animals is already provided for by conditions attached
to the ASPA licence when it is granted.
10. The approach in subsection (3) has been
taken to ensure that other animals kept on designated premises,
such as farm animals, the guard dog and the office cat, are still
protected by the welfare offence. By oversight, the draft Bill
did not achieve this; all animals on designated premises were
excluded.
11. The cruelty and fighting offences will
protect all animals on designated premises. If cruelty is inflicted
on research animals, outside the terms of the ASPA licence, an
offence will be committed under the Animal Welfare Bill. The Protection
of Animals Act 1911 is already applicable in these circumstances,
and its enforcement in these circumstances is the responsibility
of the Home Office. Clause 52 will preserve this approach.
Definition of "Protected Animal": Clauses
2 and 53
12. As noted in our response to the Committee
of March, we do not agree with recommendation 6 that we should
adopt a broad definition of an "animal" and then exclude
protection of those animals in certain situations.
13. We have separated Clause 54(2) of the
draft Bill from the General Interpretation Clause (previously
Clause 54, now Clause 56), and moved it to a more prominent and
logical position in the Bill, ie Clause 2. The drafting has also
been simplified, though the animals covered remain the same. Clause
2 (together with Clause 3, referred to below), should also address
the Committee's concerns, expressed at recommendations 10 and
11, that the Bill's definitions and their interrelationship were
not clear and easily accessible for readers.
14. We also accepted the Committee's concern,
expressed in recommendations 8 and 9, that if we did not reconsider
our definitions here, fish caught by anglers might be covered
by the term "temporarily in the custody or control of man".
In the light of the Government's manifesto commitment not to do
anything which could adversely affect fishing and angling, Clause
53 ("Fishing") has been added; it excludes "anything
which occurs in the normal course of fishing" from the Bill.
15. By virtue of Clause 1, fish are covered
by the Bill, and if a fish is under the control of man it will
be a protected animal under Clause 2. However, the effect of the
exemption in Clause 53 is that, when a fish comes under the control
of man in the course of fishing, the Bill will not apply to anything
that happens to the fish in the normal course of that activity.
So, for example, the use of livebait and the practice of catch
and release will not be subject to the Bill.
16. This approach is the same as that which
is currently being proposed in Scotland under the Animal Health
and Welfare (Scotland) Bill, currently being considered by the
Scottish Parliament.
17. We intend the term "fishing"
to apply to the ordinary activities of fishermen and anglers,
and also the ordinary activities of those who own and run stocked
ponds in allowing fishing activities to take place on their ponds.
18. If unnecessary suffering were caused
outside what is commonly understood to be "the normal course
of fishing", that would be an offence caught by the Bill.
19. The Bill applies to all inland waters
(rivers, streams, lakes and ponds) and to estuaries, but not to
the sea.
Definition of "Responsibility": Clause
3
20. Clause 3 ("Responsibility for Animals")
has also been included following the Committee's recommendations
10 and 11.
21. Previous references to animal "keepers"
have been deleted. The welfare offence in Clause 8, and the power
to make secondary legislation in Clauses 10-15, are both now linked
to a single concept of "responsibility" to ensure consistency,
and Clause 3 is intended to aid interpretation of this term. Ultimately
it will be for the courts to determine whether a person is "responsible"
for an animal. However, Clause 3 has been included for the sake
of certainty to make sure that the following cases will all be
considered cases of having responsibility:
— having temporary responsibility for
an animal;
— being in charge of an animal;
— being responsible for a child who
in turn is responsible for an animal.
22. This approach should address the Committee's
concerns that the Bill's definitions and their interrelationship
were not clear and easily accessible for readers, and also that
the welfare offence and delegated powers should employ the same
language.
Territorial extent
23. No changes have been made to the Bill's
territorial extent. The substance of Clauses 40-44, on enforcing
English and Welsh disqualification orders in Scotland, is unchanged.
Their form has changed so as to accord with the procedures for
enforcing disqualification orders in Scotland that are outlined
in the Animal Health and Welfare (Scotland) Bill.
CRUELTY OFFENCES
(PREVENTION OF
HARM)
24. As recommended by the Committee (recommendations
12-13) we have separated the previous Clause 1 into a number of
different clauses, along the lines that the Committee proposed.
As mentioned at paragraph 21, we have also removed the definition
of "keeper" and added a new Clause 3 which defines when
a person is responsible for an animal. We agree with the Committee
that this approach makes it easier for the reader of the Bill
to identify the specific offences of cruelty as well as the more
general offence of causing unnecessary suffering.
Mens Rea
25. The Committee expressed concern (recommendation
14-17) that it was not clear whether an objective or subjective
test of mens rea would be employed. We have not amended
this Clause because we consider that the drafting makes clear
than an objective mental test will apply—"knew or ought
reasonably to have known".
Mutilations
26. In response to the Committee's recommendation
20, we have included a definition of "mutilation" at
Clause 5(3). This explains that a mutilation is "a procedure
which involves the interference with the sensitive tissue or bone
structure or the animal". This is the definition used by
the Royal College of Veterinary Surgeons and its inclusion is
important in helping to clarify this offence. We have also included
a duty to consult before using the power to specify exceptions
in regulations under Clause 5(4).
Cruel Operations
27. In line with our general aim of simplifying
the Bill and the Government's commitment to the better regulation
agenda, we have removed the previous Clause 1(9) from the Bill.
This Clause carried forward from the 1911 Act the offence of performing
an operation without due care and humanity, but was superfluous
to general provisions in the Bill. Performing an operation without
due care and humanity will, by definition, generally cause an
animal unnecessary suffering and constitute an offence under Clause
4.
Fighting offences
28. In our response to the Committee's report
we explained (at recommendation 23) that we intended to remove
some of the detail from the fighting offence. The draft Clause
2(1) listed ten separate activities related to animal fighting
that were to be offences. Each of these activities will still
be an offence, but the drafting in Clause 7 of the Bill as introduced
in the Commons is simpler than its predecessor. The terms "arranging",
"making arrangements" or "carrying out arrangements"
for an animal fight will capture all of the specific offences
that have been removed.
29. The offences in the previous draft Clause
2(2)(b)-(d) (recording animal fights) have also been deleted.
On further consideration, we believe that the difficulty of enforcing
these provisions would have made them inoperable. It would have
been virtually impossible to prove that any particular fight for
which a recording existed took place within the jurisdiction of
the courts in England or Wales. It would also have been exceedingly
difficult to prove that the animals involved were actually harmed
or, eg, that the fight wasn't a computer-generated image. The
Obscene Publications Act (1959) and the Cinematographic Films
(Animals) Act 1937 will continue to apply.
Welfare Offence
30. We accept the Committee's recommendation
that, since "welfare" is a neutral term, the welfare
clause should be clarified. We have therefore rephrased Clause
8(1) to say that a person commits an offence if they do not take
reasonable steps "to ensure that the needs of an animal|
are met to the extent required by good practice".
Transfer of animals to under 16s
31. The previous Clauses 4 and 5 have been
amended and incorporated into a single Clause 9. Since children
are less likely than adults to be fully aware of the implications
of pet ownership, our aim with this clause is to prevent their
gaining a pet, whether by purchase or in a competition, without
adult consent. Children will still be able to own a pet, provided
that an adult has bought it for them or has consented to the receipt
of a pet in a prize competition.
32. The draft Bill proposed a total ban
on giving pets as prizes. In the Bill as introduced in the Commons,
this ban has been limited to unaccompanied children under the
age of 16. The narrower scope of the ban reflects the Government's
commitment to better regulation, and the view that adults should
have the same freedom to exercise their own responsibility in
relation to the winning of animals as prizes, as they do in buying
animals.
Abandonment
33. As noted in our response to the Committee's
recommendations 31-32, the Bill as introduced in the Commons does
not contain an explicit offence of abandonment. In the interests
of a simple Bill we do not consider a specific offence to be necessary
since the act of abandoning an animal will be caught by both the
welfare offence in Clause 8 and, potentially, the cruelty offence
in Clause 4.
DELEGATED POWERS
34. The changes to the delegated power in
Clause 1(3) have already been addressed in paragraph 5.
Duty to consult
35. In response to the Committee's recommendation
41, we have inserted subsection (6) in Clause 10, to impose a
duty to consult when making regulations for the promotion of animal
welfare. A similar subsection (5) is also included in the power
to make a regulation exempting certain mutilations from the general
ban in Clause 5.
Regulations to promote welfare
36. We shared the Committee's concerns that
the detail contained in the previous Clause 6(2) might have curtailed
the powers in Clause 6(1) by implication. Clause 10(2), therefore,
now contains a shorter, more general list of examples for which
the power could be used.
37. The explicit inclusion of Clause 10(2)(a)
which allows us to impose specific requirements for the purpose
of ensuring that an animal's needs are met takes account of the
Committee's suggestion that the welfare offence and regulation
making clause ought to be better aligned.
38. Clause 10(1) will allow regulations
to be made not only to promote the welfare of animals for which
a person is responsible, but also to promote the welfare of the
progeny of such animals. This is to ensure that should a Government
wish to regulate the breeding of animals, for example to restrict
the breeding of animals with harmful characteristics, they would
have the power to do so.
Licensing and registration
39. The Committee previously expressed some
concern that the provisions relating to licensing and regulation
were only touched upon briefly within the previous Clause 6. We
have responded to these concerns by creating a separate Clause
and Schedule (11 and 1 respectively) which set out more clearly
the requirements of any licensing/registration regime. They give
greater clarity to the roles and powers of local authorities in
this regard.
40. We have also included in Clause 11 a
new subsection (8). This "Henry VIII" power is intended
to allow an appropriate national authority to repeal certain specified
legislation which provides for licensing or registration. The
previous Clause 6(3)(f) would have permitted the amendment or
repeal of any existing enactment, but only in consequence of the
introduction of a licensing or registration system under the previous
Clause 6(1). The new Clause 11(8) will allow the specified licensing
or registration systems to be repealed without the need to replace
them with further licensing or registration systems. We do not
currently envisage using this power, but it is important that
the Bill be drafted in such a way that it can accommodate unforeseen
future needs, which may include regulation of these areas by means
other than licensing or registration. The Government's commitment
to the better regulation agenda means it needs the power to repeal
existing legislation if it were found to be unnecessary, for example,
once the welfare offence had been enacted.
ANIMALS IN
DISTRESS
41. The number of clauses relating to animal
in distress has been reduced. There is no longer a distinction
made between "animals in distress", and "animals
in distress: proceedings pending". This is because, whether
proceedings are pending or not, if an animal is in distress a
constable or inspector will be able to use their emergency powers.
We do not see the need to maintain a distinct system for owners
who are the subject of proceedings.
42. The provisions relating to animals in
distress have therefore been simplified. There is one single system
for handling animals in distress, with one set of powers and one
procedure for the courts to determine their future. Clause 16
now outlines a single set of emergency powers, including the power
to destroy, administer treatment, and take an animal into possession.
Clause 17 contains a single power of entry that can be exercised
to help an animal in distress. Clause 18 outlines a single procedure
for recourse to the courts.
43. In line with the Committee's recommendation
47, the time limit during which an animal seized while in distress
can be retained has been removed. An owner or person with sufficient
interest in the animal can make an application for the release
of the animal immediately under Clause 18(1)b. If no such application
is made, anyone with a sufficient interest in the animal (which
may be the animal's present keeper, the inspector who seized it,
the person who wishes to offer it a new home, the sanctuary through
whose hands the animal has passed, or the veterinarian who has
given it treatment) will be able to make an application for its
disposal. This could be an application for its release to them,
under Clause 18(1)b, an order for its sale, for its destruction,
or its disposal by other means.
44. The Government had indicated in its
response to the Committee's recommendation 61 that provisions
would be included in the Bill relating to written agreements with
the Secretary of State for making applications in relation to
animals seized under emergency powers. On reflection, we considered
that this would actually involve an undue level of bureaucracy.
The Bill makes provision for the owner of an animal, or anyone
who has "a sufficient interest" in it to make an application
under Clause 18. This means that the courts have discretion as
to whose applications they hear, rather than the Secretary of
State retaining this discretion. We consider this more appropriate.
45. As we noted in our response to the Committee,
we do not consider it possible to specify further the circumstances
in which there will be "no reasonable alternative" to
an inspector or constable destroying an animal, nor to define
the expression "reasonable alternative". Flexibility
is important; any such restriction could be a disincentive to
putting a suffering animal out of its misery. The term therefore
remains unchanged in Clause 16(4).
ENFORCEMENT POWERS
Order in the Bill
46. The order of the enforcement Clauses
in the Bill has been changed, in line with the Committee's recommendation
46. Powers relating to animals in distress are now followed by
enforcement powers, prosecutions, and then post-conviction powers.
Definition and liability of "Inspector"
47. The definition of an "inspector"
hasn't changed since the published draft. It remains for the police,
local authorities, and national authorities (in practice, the
SVS) to enforce the Bill. Clause 45 reflects the previous Clause
44 on Appointment of Inspectors by Local Authorities, Clause 45
on Protection of Inspectors, and Clause 54(1) on General Interpretation.
The new Clause 45 is consolidated and simplified.
48. The Committee did query, at recommendation
56, whether the definition of an "inspector" should
be changed to an "approved person", to clarify the status
of the RSCPA inspectors as distinct from the Bill's "inspectors".
As noted in our response, we considered such a change in definitions
would make the Bill more, rather than less, confusing. The term
"inspector" is used throughout existing animal health
and welfare legislation. If the definition were changed, it would
not be clear whether there was a distinction to be drawn between
an "approved person", and SVS and local authority inspectors.
49. We did not accept the Committee's concerns
at recommendation 55 that RSPCA inspectors may be appointed as
Bill "inspectors" by local authorities. We consider
it unlikely that this would happen. However, if it did, the RSPCA
inspector would be fully accountable to the local authority for
the discharge of their duties as an "inspector".
50. Nor did we accept the Committee's concerns
at recommendation 55 that we include, on the face of the Bill,
"characteristics" of persons who may be appointed as
inspectors, or appropriate categories of such persons. To include
such limitations on the face of the Bill would be a severe limitation
on its flexibility. We agree that it will be important to issue
guidance, but we consider it important that the guidance be capable
of evolving in light of emerging scientific knowledge and management
practices. We therefore intend to issue guidance on this under
the powers contained in Clause 45(2)-(4), rather than include
it on the face of the Bill.
51. The Government are currently working
on a Memorandum of Understanding with the Home Office and Association
of Chief Police Officers. This will clarify police responsibilities
under the Bill and prevent an unreasonable enforcement burden
from falling on them.
52. The previous Clause 45 on the Protection
of Inspectors is now reflected in Clause 45(5). In line with our
response to the Committee, this Clause remains unchanged in spite
of recommendation 57. However, a new Clause 45(6) has been added
to make clear that the local and national authority which employs
the inspectors may still be held vicariously liable for their
employees' actions, even though the inspectors cannot be held
liable personally.
Powers of Entry
53. As noted in our response to the Committee,
the Bill's powers to enter and search for evidence of the commission
of an offence, contained in Clause 20, have been amended. They
are now restricted by a warrant requirement.
54. This change was made following a careful
consideration of human rights law, and in particular the decision
of the European Court of Human Rights in Camenzind v Switzerland
RJD-III 2880. According to this judgment, powers of search
and seizure must be proportionate and subject to adequate safeguards.
In view of the general approach to search and seizure taken in
the Police and Criminal Evidence Act 1984, which applies to more
serious offences than animal cruelty and welfare, we do not consider
a power to enter and search for evidence without a warrant could
be justified.
55. The other powers of entry in the Bill
remain the same.
56. The Bill also now contains a clarification
of what is meant by "a part of premises which is used as
a private dwelling". This is in Clause 56(3), in line with
the Committee's recommendation 52. However, in line with our response
to the Committee, this clarification makes clear our intention
that any part of the premises which is used for dwelling, even
if it is also used for other purposes at the same time, should
be included. This is to ensure that constables and inspectors
cannot enter a kitchen that is also used as an office etc, without
a warrant. It should not affect farming premises, as the Committee
was concerned it might, as those areas used for commercial farming
purposes are highly unlikely to also be used for dwelling purposes.
Power of Arrest
57. The previous Clause 35, which amended
the Police and Criminal Evidence Act 1984 to allow arrest without
a warrant of those committing cruelty and fighting offences, has
been deleted.
58. This does not represent a change of
policy. It has been made because the Serious Organised Crime and
Police Act 2005 will come into force in January 2006, and will
give constables a general power to arrest without warrant anyone
who is about to commit an offence and anyone who is in the act
of committing an offence (at Section 110). An amendment to PACE
to add to the list of offences subject to arrest was therefore
no longer necessary.
Improvement Notices
59. As indicated in our response to the
Committee's recommendation 60, we have not amended the Bill to
make provision for issuing improvement notices. As this remains
a common enforcers' Bill we do not see how it would be possible
to make provision for private individuals to issue statutory notices.
Costs incurred
60. The Bill has been amended, in line with
the Committee's recommendation 48, to allow for the recovery of
costs by inspectors. This is now reflected in Clauses 16(11),
18(4)d, 32(1)e, 33(3)e, 34(3)e, and 35(1). These clauses do not
explicitly state that only "reasonable costs" are to
be recoverable, because, as indicated in our response to the Committee,
the court is a public body and therefore under a duty to act reasonably.
PROSECUTIONS
61. No changes have been made to the powers
to bring prosecutions. The Bill remains a private enforcers' Bill,
and still empowers local authorities to bring prosecutions. The
time limits outlined remain unchanged.
62. Some questions have recently been raised
in the media about the powers of NGOs, and in particular the RSPCA,
to bring animal welfare prosecutions. We consider these concerns
misplaced. Animal welfare legislation has, as a matter of common
law, always been private enforcers' law. The role of the RSPCA
in particular in enforcing animal welfare law is fundamental,
and it would be entirely inconsistent with the aims of this Bill
if we were to take away their power to bring prosecutions.
63. We understand that claims have been
made to the effect that, because of its charitable status, the
RSPCA is entitled to reclaim some of its costs through the legal
aid system, whereas defendants are not, and that it is therefore
common to plead guilty rather than incur the expense of defending
a case. Again, such concerns are entirely misplaced. The Department
of Constitutional Affairs have assured us that any defendant in
a criminal prosecution will be entitled to claim legal aid, and
have the court determine the merits of his claim. Cases are decided
individually. They are not barred by the prosecution having been
brought by a private enforcer, rather than the Crown Prosecution
Service.
64. In this regard we agree with the Committee's
recommendation 62.
POST-CONVICTION
POWERS
65. As explained in paragraph 32 we have
included greater detail in the Bill on how licensing/registration
systems would work. A new subsection (3) in Clause 28 requires
that any regulation made under Clause 10 or 11 will have to specify
the penalties that will apply for offences committed under that
regulation. This too adds greater certainty to how any licensing/registration
or general regulation would work.
66. Clause 29(3) has also been inserted,
to empower a court to include any "dependent offspring"
in a deprivation order. Under the draft Bill a court would only
have been able to order that a person be deprived of ownership
of an animal in relation to which an offence was committed. Cases
were brought to our attention of owners being deprived of ownership
of a pregnant animal, and the offspring having to be returned
to the previous owner once they were born. We do not consider
this desirable, and so have inserted the power to deprive of the
offspring as well.
67. We have amended Clause 30(2)(d) so that
"being party to an arrangement under which he is entitled
to control or influence the way in which animals are kept"
would also be covered by a disqualification order. This is in
line with the Committee's recommendation 64 and will help to close
the loophole by which those who have been disqualified seek to
evade that prohibition.
68. Under the draft Bill someone who was
subject to a disqualification order could apply after one year
and every year after that to have the disqualification lifted.
Clause 30(6) has been inserted to reduce unnecessary applications
under this provision. It will allows the disqualifying court to
specify a minimum period before which the individual is not able
to apply for the disqualification order to be lifted.
69. The previous Clause 31 stated that an
animal involved in a fighting offence could only be destroyed
if it constituted a danger to public safety or that it may be
used in the commission of further offences. We considered these
situations too restrictive and inflexible, and Clause 34 now empowers
the court to order the destruction of a fighting animal for reasons
other than the interests of the animal.
70. The Committee recommended (number 65)
that conviction for a fighting or certain other animal cruelty
offences should carry an automatic disqualification. We consider
that automatic disqualification places an unnecessary restraint
on the ability of the courts to impose proportionate and appropriate
penalties based on the facts of each case. Automatic disqualifications
could also breach the right to peaceful enjoyment of possessions
as set out in the European Convention on Human Rights. We are
therefore content to leave it to the courts to decide on the penalties
in each case.
1 Published by the Select Committee in its Fourth
Special Report of Session 2004-5, HC385 [3 March 2005]. Back
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