| Issue | Draft Bill
| EFRA Comments | Final Bill
| RSPCA comments |
| Definition of "animal" |
Clause 53 | —Noted there was a strong case to include cephalopods but not sufficient evidence.
—Called on Defra to reassess the grounds on which the definition has been based, with the regard to evidence on inclusion of cephalopods and certain crustaceans.
| Clause 1 | —The Society believes that there is already enough scientific evidence to include cephalopods in the definition.
—It is incongruous that the Common Octopus and immature vertebrate forms receive protection under the Animals (Scientific Procedures) Act 1986 yet will not be protected under this new Bill.
—The Society believes cephalopods should be covered under the definition.
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| Cruelty offence | Clause 1
| —Various sub-clauses should be separated into distinct offences.
—The cruelty offence should be amended to make it clear that mental suffering is included.
| Clause 4 | —RSPCA welcomes the clarification of this offence and the separation of the different issues into distinct offences.
—The Society believes the offence in clause 4(1)a should make explicit that suffering covers both physical and mental.
—It is welcome that the mens rea element has been further clarified in the Bill.
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| Fighting offence | Clause 2
| —The fighting offence should be amended to make it clear that the offences are committed when the preparatory acts take place and the prosecution do not have to wait for the fight to have occurred.
| Clause 7 | —The RSPCA does not believe that this clause adequately consolidates the existing offences relating to the fighting and baiting of animals.
—The new clause changes the whole tone of the offence by making it necessary to prove a connection to a specific fight rather than fighting per se.
—The detection of such crimes rarely takes place at actual fights, it is primarily done either before or after a fight—this new clause would add the burden of connecting the act to a specific fight which may be very difficult in some instances.
—The language "participates in making, or carrying out, arrangements for animal fights" does not cover all the offences being deleted in the Protection of Animals Act 1911.
—Furthermore, the new clause does not cover equipment used for fights; for example being in possession of "spurs" for a cock-fight, which is currently an offence, under the Cockfighting Act 1952, would no longer be an offence as that Act is being repealed. The draft Bill provided for such an offence which covered equipment relating to all forms of fighting.
—The new clause also does not make it an offence to provide premises (or parts of premises) for and make recordings of such an event unless it can be connected with a specific fight. See previous comment above re proving fighting offences. The draft contained provision for these offences.
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| Welfare offence | Clause 3
| —Require clarification of what kind of welfare a keeper needs to ensure.
—Clause 3(1) to be expressed as a positive duty of care, rather than as an offence of omission.
—Supported the modified use of the five freedoms.
| Clause 8 | —The RSPCA believes that the welfare offence adequately addresses the issue of abandonment and that there is no need to have a separate offence.
—The Society believes that the reference to "good practice" at the end of clause 8(1) could be a complex and lengthy point to discuss and prove in court. (Especially if the codes of practice do not come into force at the same time as the welfare offence).
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| —The Society feels the original wording in the draft bill which includes reference to "reasonableness" (which has been retained in the latest version of the Bill) and "appropriate manner" (old clauses 3(1) and 3(4)) is a clearer concept for the court to grapple with.
—Clause 8(3) in the final version is a new sub-clause which the Society believes should not be included. It could be utilised by those carrying out a nominally lawful purpose to argue for a lower standard of welfare for the animals kept for that purpose. For example, animals in circuses could be disadvantaged by the proprietor being able to argue that the restricted ability in a circus environment to provide for the animals' needs should mitigate his liability to ensure their welfare.
—This qualification is contrary to the public presentation of the welfare offence by the government as a way of ensuring animals' welfare needs are met. The Minister has publicly explained that, although practices which may be detrimental to an animal's welfare will not be banned by the bill, the safeguard is that they will be subject to the welfare offence. The insertion of the qualification in this clause detracts from this argument.
—It also has the potential to create different standards of acceptable welfare for the same types of animals depending on the circumstances in which they are kept.
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| Licensing | Clause 6 |
—Did not support Defra's (then) proposal to introduce 18-month licences rather than annual ones.
—Also felt that with respect to pet fairs and similar events, licences for pet fairs should apply to a single event only, and that each separate event should require a separate licence.
| Clause 11, Schedule 1(5) | —Although there is no lower time limit in the Bill the RSPCA does not believe that licensing authorities would perform more frequent inspections than three years maximum in the proposal, unless this is spelled out in the secondary legislation.
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| Devolution | Clause 6, 7, 8, 9, 10
| | Clause 1(3), 10, 11, 12, 13, 14, 15, 40, 41, 42, 55, Schedule 1
| —This bill raises some important practical issues.
—Not only will secondary legislation be devolved but also the definition of animal. This means that there could be different regulations, codes and definitions of animals in England and Wales (and Scotland via the Animal Health and Welfare Bill).
—In terms of enforcement and in order to make this legislation clear and accessible to members of the public, it is essential to ensure consistency between the jurisdictions, particularly in respect of the definition of animal.
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| Secondary legislation procedure |
Clause 6, 7, 8, 9 | —Felt that Defra should enter into a "memorandum of understanding" with EFRA and undertake to publish in draft form any proposed regulation and inform the Committee of this.
| Clause 10, 12, 13, 14, 55 | —The Society is interested to see that there is a negative resolution procedure for the codes of practice (clause 13) and a positive resolution procedure for the regulations (clause 55).
—The Society would be interested to know EFRA's position on this in light of their previous comments about proper consultation and consideration by Parliament on this matter.
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| Animals as prizes | Clause 5
| | Clause 9 | —The Society does not believe that animals should be given as prizes under any circumstances and does not understand why Defra has amended the provisions on this matter.
—Allowing animals to be given as prizes goes against the Bill's objective of securing and maintaining responsible pet ownership.
—Owning an animal should be a considered act, not something that can happen by chance. (Interestingly this is the view that the Scottish Executive and other countries have taken when prohibiting the giving of animals as prizes—see clause 28 of the Scottish Bill).
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| Power of arrest | Clause 35
| | | —New provisions under s24 and 24A of Police and Criminal Evidence Act will contain an applicable power of arrest which should adequately replace that currently contained in the Protection of Animals Act 1911.
—We understand that the new provisions will come into effect on 1 January 2006 so there will a power of arrest for police officers for offences under this Bill.
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| Definition of "premises"
| Clause 54 | —Asked for clarification of the meaning of the words "any part of premises which is used as a private dwelling".
—Recommended greater powers of entry with respect to premises which were not only used as a private dwelling.
| Clause 56 | —The RSPCA is concerned that the definition of "part of a premises which is used as a private dwelling" has been extended to include yards, gardens and sheds. A warrant would therefore be required to search these.
—The Society's experience is that most offences involving poor welfare occur in these parts of premises. The Society accepts that entry to a private dwelling should require a warrant but the extension of the requirement for a warrant in respect of these areas will expend unnecessary time and resources (for the police and courts) and could prolong suffering.
—The RSPCA believes that the definition of private dwelling should be limited to the principal dwelling building—as in many other pieces of animal welfare legislation.
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| Emergency powers for animals in distress
| Clause 14 | —Felt that the serious nature of some offences justifies inspectors and constables to enter premises, other than private dwellings, without a warrant.
—Recommended that the government should clarify what is meant by "any part of premises which is used as a private dwelling".
| Clauses 16 and 17 | —The RSPCA welcomes clause 16 as this provides emergency powers for dealing with animals in distress, eg dogs in hot cars.
—However, clause 17 exempts these powers in relation to "private dwellings". (See previous point). Again the Society understands the reasons for this. However, in an emergency situation for example, a dog hanging by its lead over a balcony or banister that is choking itself to death, there is no time to obtain a warrant. Yet it would appear this is required for such situations and so the chances of saving the animal would appear negligible.
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| Penalties | Clause 24 |
—Considered that the gravity of the offences under the Bill should be reflected in increased sentencing powers.
—Recommended that certain offences (eg fighting and most serious cruelty offences) should be triable "either way" (summary or indictable) in order to give the courts the ability to impose longer sentences in appropriate cases.
| Clause 28 | —Although it appears on the face of the Bill that penalties have been increased from the current six months for conviction of offences under the new bill. It should be noted that the effect of "custody plus" is to limit the custodial period to a maximum of thirteen weeks. (See the explanatory notes para 102).
—The Society is concerned that this provision may mean that there will not in effect be a higher sentence and that convicted people will serve only a maximum of 13 weeks if they receive a custodial sentence followed by a "licence" period. This would not act as a suitable deterrence for offences, in particular the most serious offences such as fighting and some cruelty.
—The Society believes that for the most serious offences a higher sentencing regime should be offered and that such offences should be triable either way.
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| Mutilations | Clause 2(4)
| —Tail docking in dogs should be banned for cosmetic reasons, but allowed for therapeutic reasons, where it is in an animal's best welfare interests.
—Supported Defra's proposal for prophylactic docking for certain breeds or types of working dogs, but recommended that certain conditions should be met to ensure there is not abuse of the system.
| Clause 5 | —RSPCA welcomes the ban on all mutilations on the face of the Bill. The Society agrees that tail docking of dogs should only occur where there are genuine therapeutic reasons.
—Society does not believe that there is a justifiable need to allow for prophylactic docking of dogs' tails.
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| Circuses | Annex A |
—Recommended that Defra should amend its proposals to licence the use of performing animals in circuses by distinguishing between the use of wild animals and domesticated animals, with a view to prohibiting the use of the former.
| Annex A | —RSPCA believes the circuses by their very nature cannot provide an adequate environment for animals and believes, at the very least that wild animals should be prohibited from use in a circus.
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| Pet fairs | Annex B
| —Considered that it is important for the legal status of pet fairs to be determined before Defra proceeds to draft regulations which would repeal the 1951 Act and introduce a licensing regime.
—Recommended that Defra should reappraise the basis on which its proposed regime for licensing pet fairs is predicated.
| Annex C | —RSPCA believes that those events that are currently illegal under the 1951 Act should continue to be prohibited. Therefore, pet fairs which involve commercial trading should be prohibited. Genuine members' only events should be allowed to continue, but only where the welfare of the animals can be protected by appropriate regulations and following good practice.
—The RSPCA notes that the Government in their announcement on 26 October to a temporary ban on bird fairs due to health concerns about avian influenza have implicitly acknowledged the health control problems in pet fairs which will continue even after the present avian influenza epidemic has passed.
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| Animal sanctuaries | Annex E
| —Considered that all animal sanctuaries should be licensed regardless of size.
| Annex F | —The RSPCA is concerned that Defra has replaced its proposed licensing scheme for larger animal sanctuaries with a registration requirement for all sanctuaries. This is surprising given that Defra has acknowledged the drawbacks of the current registration scheme for performing animals.
—The RSPCA believes that all sanctuaries should be covered by a regulatory regime which requires inspection.
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| Shock collars | | —Considered Defra should take further research on this matter.
—Felt that electronic shock collars and perimeter fencing should be outlawed for use expect perhaps for suitably qualified veterinarians.
| | —Defra is proposing to undertake some research on this area.
—RSPCA would support prohibition of the use and sale of electronic shock collars and perimeter fencing for training of companion animals, and electric goads for the training of performing animals and control of livestock.
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| Fishing | | —Both commercial and recreational fishing should not be in the remit of the Bill.
—Supported an exemption for fishing but wished to see welfare standards to continue to apply where appropriate.
| Clause 53 | —The Society believes that welfare standards should apply and that codes of practice should be referred to in the Bill.
—The exemption in the Bill undermines the positive benefit of the codes of practice currently issued by angling associations.
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| November 2005 |
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