Memorandum submitted by the Association
of Lawyers for Animal Welfare
What we need is clarity: pet fairs and the Pet
Animals Act 1951
1. It was concerns about the depressing
conditions in which pet animals were being sold at certain London
markets that led Parliament to enact the Pet Animals (Amendment)
Act 1983. That Act amended the Pet Animals Act 1951 so that it
provided, in Section 2, that "[i]f any person carries on
a business of selling animals as pets in any part of a street
or public place, or at a stall or barrow in a market, he shall
be guilty of an offence." The 1983 amendment eventually led
to the complete eradication of pet-selling stalls at regular markets.
2. Since the exotic pets craze of the early
1990s, however, a new form of market-type selling of pet animals
has emerged which perhaps presents even greater animal welfare
negatives than the market stalls which used to so sadden the compassionate
market-goer. In many towns and cities across the UK, in community
halls, leisure centres and schools, exotic animal fairs are taking
place, often calling themselves "reptile exhibitions",
at which animals are sold as pets directly to the public. The
typical event consists of a number of different trestle-table
stalls from which 10s, 100s, or even 1000s, of reptiles and other
exotic animals are displayed and offered for immediate sale by
different independent breeders and dealers. In many ways the format
is that of a jumble sale, albeit that the "goods" sold
are sentient creatures rather than unwanted bric-a-brac. The animals
have often been transported for many hours in the backs of hot
cars and vans, before being displayed in unsuitable cages stacked
one atop another. Many visitors to these "exhibitions"
will make impulse purchases of exotic animals that have highly
specialised care requirements, and will do so without the benefit
of appropriate care advice from the sellers.
3. Pet birds are also being sold at such
occasional events. Indeed, bird fairs tend to take place on a
much larger scale than their reptilian counterparts. The National
Cage and Aviary Bird Exhibition, organised by IPC Media (the publishers
of Cage and Aviary Birds magazine), is the highlight of
the bird dealers' calendar. The 2003 event, which took place in
early December of that year at the National Exhibition Centre
near Birmingham, was granted a pet shop licence by Solihull Metropolitan
Borough Council for the selling of up to 100,000 birds. Undercover
investigators from Animal Aid visited the event and documented
a number of apparent breaches of the conditions attached to that
licence, as well as of the Wildlife and Countryside Act 1981.[1]
The multiple independent traders offering birds for sale at that
event were drawn from across the UK, with at least one coming
from another EU Member State. Plainly, therefore, the sellers
were not mere small-time hobbyists, but were serious commercial
operators. Many thousands of birds are believed to have changed
hands in the course of that event.
4. Quite apart from the obvious welfare
concerns that are posed by such events, campaigners against them
also point to the potential risks to public health. Whatever claims
may be made by the sellers of birds and reptiles at such fairs,
it is improbable to deny that at least some of the animals being
offered for sale will have been caught in the wild or will at
least have recently mixed with wild-caught animals. Indeed, such
events would appear to be an ideal outlet for the disposal of
animals by black market dealers or persons involved in various
forms of wildlife crime. The Animal Aid report[2]
recorded that, of a sample of five birds which were purchased
at the event and tested for Chlamydia psitacci (psittacosis),
one (a Senegal parrot) had the infection, which can be transmitted
to humans. The avian flu outbreak in Asia, and the continuing
spread of the virus around the world, would appear to highlight
the dangers inherent in bird-human interaction in large-scale
market-type situations.[3]
Reptile fairs also present significant public health risks, particularly
in view of the absence of quarantine requirements for imported
cold-blooded animals and the documented cases of fatal infection
of humans with salmonella through contact with pet reptiles. Indeed,
the occurrence of two infant deaths in the UK within six months
as a result of salmonella infections from reptiles prompted the
Department of Health to re-issue a warning in 2000 that children
under five years of age, pregnant women, the elderly, and the
immuno-compromised should all avoid contact with reptiles.
5. What, then, is the legal position with
regard to these events? Do they fall within the prohibition, in
Section 2 of the 1951 Act, of selling animals from market stalls
and in public places? And if they do not, then do they require
a "pet shop licence" from the local authority in order
to avoid the commission of criminal offences contrary to Section
1 of that Act, which prohibits the keeping of a pet shop except
under the authority of such a licence? Campaigners against such
events have faced considerable frustration at the variety of views
of the law adopted by different local authorities, who bear the
responsibility for granting licences and prosecuting offences
under the 1951 Act. While most local authorities have accepted
the campaigners' arguments that these events fall within the Section
2 prohibition, some have licensed them under Section 1, while
yet another group of local authorities regard these events as
outside the scope of the 1951 Act altogether so they are left
unregulated.
The Section 2 prohibition on selling animals in
public places and from market stalls
6. What exactly is a "public place"
for the purposes of the 1951 Act? The phrase is not defined in
the Act itself, but has generally been defined in other regulatory
legislation as "[a]ny place to which the public have access
whether on payment or otherwise".[4]
Such a definition would appear to be capable of embracing leisure
centres, racecourses, school playing fields, agricultural showgrounds
and other places where pet fairs typically take place. The difficulty
with giving such a broad scope to the phrase, however, is the
need to exclude conventional pet shops, which it plainly cannot
have been the intention of the legislature to prohibit.
7. Further confusion has been caused by
the organisers of pet fairs who have sought to portray their events
as being open to "members only", essentially as a device
to circumvent rulings by some local authorities that pet fairs
that are open to the public, whether on payment of an admission
fee or otherwise, are properly regarded as being held in public
places and thus as falling within the Section 2 prohibition. Often
the "memberships" sold are a thinly disguised sham,
with "membership cards" being provided on payment of
what is in truth no more than a nominal admission fee payable
at the door.
8. Whether or not a pet fair is held in
a public place, however, it will still fall within the Section
2 prohibition if it involves the selling of animals as pets from
market stalls. The usual common law definition of a "market"
is "a concourse of buyers and sellers". It seems likely
that the selling of animals from a stall at an event which consisted
of a number of different independently-run stalls gathered together
in an open-plan setting would come within that definition, whether
the event was held indoors or outdoors, and whether it took place
regularly or occasionally.
9. Until this issue is resolved by the higher
courts, however, confusion will continue to reign as to whether
or not pet fairs do involve the commission of criminal offences
contrary to Section 2.[5]
Assuming the events do not involve violations
of Section 2, is a pet shop licence required under Section 1?
10. Section 1 of the 1951 Act makes it an
offence to "keep a pet shop except under the authority of
a licence granted in accordance with the provisions of [the] Act".
The definition of a "pet shop" is provided in Section
7(1):
"References in this Act to the
keeping of a pet shop shall, subject to the following provisions
. . . be construed as references to the carrying on at premises
of any nature (including a private dwelling) of a business of
selling animals as pets, and as including references to the
keeping of animals in any such premises as aforesaid with a view
to their being sold in the course of such a business, whether
by the keeper thereof or by any other person." (emphasis
added)
11. Thus, it is not only conventional "high
street" pet shops that are required to be licensed.[6]
Accordingly, it would seem that, even if pet fairs do not involve
the commission of criminal offences under Section 2, such offences
would nevertheless be committed under Section 1 by any person
"carrying on . . . a business of selling animals as pets"
who was not doing so under the authority of a valid licence.
12. A question therefore arises as to the
party who must apply for, and be issued with, a valid licence
in order to "keep a pet shop" at the event (ie carry
on a business of selling animals as pets). Section 1(2) of the1951
Act appears to provide a simple answer:
"Every local authority may, on
application being made to them for that purpose by a person who
is not for the time being disqualified from keeping a pet shop,
and on payment of such fee . . . as may be determined by the local
authority, grant a licence to that person to keep a pet shop
at such premises in their area as may be specified in the application
and subject to compliance with such conditions as may be specified
in the licence." (emphasis added)
13. Thus, the legislation appears to envisage
pet shop licence applications being made only by the intending
keepers of pet shops, ie the legal or natural persons intending
to carry on a business of selling animals as pets (but not by
persons employed within someone else's pet selling business).
If that is correct, then it would appear to follow that every
trader intending to sell animals as pets at a pet fair must apply
for, and obtain, a valid licence from the local authority. It
would not be open to local authorities to grant (as a small number
have) an "umbrella" pet shop licence to the organiser
of a pet fair under which all persons selling animals as pets
at that event could shelter. The organiser of a pet fair is not,
after all, the keeper of a pet shop at all since it is not the
organiser who is carrying on a business of selling animals as
pets. Rather, the organiser is carrying on a business of "renting
out" stalls from which other parties (the independent traders)
carry on their quite independent businesses of selling animals
as pets.
14. Once again, however, we cannot be sure
that this analysis represents the law until the point has been
decided by a court of precedent.
Clarifying the law: the Animal Welfare Bill
15. The draft Animal Welfare Bill which
was published by the Department for the Environment, Food and
Rural Affairs (DEFRA) in July 2004 included powers for the Secretary
of State to repeal the 1951 Act in its entirety and put in its
place delegated legislation regulating the selling of pet animals.
It was made clear at the time by DEFRA that they were minded to
resolve the confusion over the legality of pet fairs by making
express provision for such fairs to be licensed and repealing
section 2 of the 1951 Act—a change which would have been
likely to lead to an increase in the number of such fairs, which
would then have been unarguably legal. DEFRA sought to portray
the proposed change as a pro-animal welfare move bringing pet
fairs within the licensing control of local authorities for the
first time. Accordingly, the question posed by DEFRA in its consultation
documents was whether pet fairs should be regulated, and
not, as anti-pet fair campaigners would have preferred, whether
pet fairs should be legalised.
16. The draft Bill was considered by the
Commons Environment, Food and Rural Affairs Committee in the 2004-05
Parliamentary session.[7]
The Committee criticised DEFRA's consultation exercise in relation
to the regulation/legalisation of pet fairs, recommending that
DEFRA consult again, this time asking interested parties whether
the confusion over the law should be resolved by expressly legalising
pet fairs or banning them altogether.
17. The Animal Welfare Bill which is now
making its way through Parliament does not provide a power for
the Secretary of State to repeal section 2 of the 1951 Act, since
only section 1(1) of that Act can be repealed in consequence of
the making of delegated legislation. It is unclear whether that
change was the result of a happy drafting error or a genuine change
of heart by DEFRA. Curiously, the Regulatory Impact Assessment
accompanying the Bill continues to state that pet fairs will be
regulated (rather than prohibited). DEFRA's present position on
the pet fairs issue is therefore unclear, and the Bill (as currently
drafted) will do nothing whatsoever to resolve the confusion over
the legality of pet fairs (which was, after all, DEFRA's original
justification for its intention to introduce regulation of such
events). It thus seems that the legality of pet fairs will ultimately
be decided by the courts, rather than the legislators we elect
to make policy choices on the nation's behalf. What is needed
is for the Bill to be amended to, in turn, amend section 2 of
the 1951 Act to make it clear that all commercial selling of animals
as pets by more than one independent trader at a temporary event
falls squarely within the section 2 prohibition.
1 "From Jungle to Jumble-National
Cage and Aviary Birds Exhibition 2003: Evidence, findings and
recommendations", a report by Animal Aid, March 2004. Back
2
Ibid. Back
3
The death of an imported parrot in an Essex quarantine
facility from the H5N1 strain of avian flu (the lethal strain
which can be passed on to humans) in October 2005 led to a temporary
EU ban on the selling of birds at pet fairs: Decision 2005/745/EC,
Article 1 of which inserted a new Article 2a into Decision 2005/734/EC.
The ban is due to expire on 31 December 2005. Back
4
Licensing Act 1902. Other examples of the use of the
same or a similar definition are: Indecent Displays (Control)
Act 1981; Environmental Protection Act 1990, Part VIII, Section
149(11); Dangerous Dogs Act 1991, Section 10(2). Back
5
Section 2 has been the subject of a number of decisions
in the magistrates' courts (see, eg, Rogers v Teignbridge District
Council (Torbay Magistrates' Court, 7 November 2000); Rapa Limited
v Trafford Borough Council (Trafford Metropolitan Magistrates'
Court, 18 June 2002); also the Scottish case White v Kilmarnock
and Louden District Council 1991 SLT (Sh Ct) 69). However, Section
2 has not yet been the subject of a decision by the High Court
or the Court of Appeal, and thus no binding authority exists. Back
6
In Chalmers v Diwell (1975) 74 LGR 173,
it was held that a premises where birds were held prior to export
to overseas purchasers required a pet shop licence. The premises
were effectively no more than a holding center: birds usually
stayed on the premises for less than 48 hours, though they had
occasionally remained on the premises for up to 12 days. Nevertheless,
the defendant was held to have been keeping a pet shop. Giving
judgment for the Court, Lawton J attached no weight to the fact
that purchasers did not visit the defendant's premises. It was
sufficient that the defendant was: "in fact carrying on a
business of selling animals [as] pets. He [was] in fact keeping
those pets on the premises for the purposes of his business, even
though it [was] for a limited time." The defendant appears
to have supplied the birds directly to the final purchaser (ie
the party who would keep the bird as a pet). It therefore remains
unclear whether all premises that hold animals that are in the
pet trade supply chain require a licence, or whether the requirement
only applies to premises from which a business is carried on of
supplying animals as pets to the final consumer (ie the pet owner). Back
7
HC 52-I, December 2004. Back
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