These Notes refer to the Animal Welfare Bill as brought from the House of Commons on 15th March 2006 [HL Bill 88]
ANIMAL WELFARE BILL
1. These explanatory notes relate to the Animal Welfare Bill as brought from the House of Commons on 15th March 2006. 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. 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.
5. A draft Bill was published in July 2004 (Cm 6252). The draft followed a public consultation conducted between 2nd January 2002 and 30th 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.)
6. 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 8th December 2004 (HC 52-I and II). On 3rd March 2005, Defra sent its response to the Committee (HC 385). The Committee published a further report on 14th December 2005 (HC 683).
7. The Bill was introduced in the House of Commons on 13th October 2005. It received a second reading on 10th January 2006 and was considered by Standing Committee A between 17th and 26th January 2006. Copies of the debates are available at http://www.publications.parliament.uk/pa/cm/cmscanim.htm. Report stage and third reading took place on 14th March 2006.
8. The Bill covers various aspects of animal welfare and clauses are grouped under 11 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 8): These clauses set out offences relating to cruelty and animal fighting.
Promotion of welfare (Clauses 9 to 12): These clauses set out specific offences which relate to the promotion of welfare. Clause 9 imposes a duty to ensure welfare. Clause 10 empowers inspectors under the Bill to issue improvement notices to those responsible for animals. Clause 11 relates to the sale of animals to persons under 16 and the giving of animals as prizes to unaccompanied under 16s. Clause 12 contains provision for the making of regulations for the purpose of promoting the welfare of animals protected under the Bill.
Licensing and registration (Clause 13): This clause confers power to bring into force regulations that will require people conducting certain activities involving animals to register or hold a licence, and to deal with existing licensing or registration regimes relating to such activities.
Codes of practice (Clauses 14 to 17): 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 18 to 20): 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 21 to 28): 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 29 and 30): 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 31 to 42): 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 43 to 47): 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 48 to 66)
Schedule 1 (Regulations under clause 13)
Schedule 2 (Powers of entry, inspection and search: supplementary)
Schedule 3 (Minor and consequential amendments)
Schedule 4 (Repeals)
9. The Bill extends to England and Wales. It extends to Scotland only in respect of (a) clause 43, which enables disqualification orders made by the courts in England and Wales to have force in Scotland, (b) clauses 44 to 47, 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
10. 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 for England, the Bill does not set out the parliamentary procedure for codes of practice issued by the National Assembly for Wales, although such codes will be subject to scrutiny in accordance with the Assembly's Standing Orders. In all other respects the Bill affects England and Wales in the same way.
APPLICATION TO THE SEA
11. 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
12. 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.
13. 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"
14. 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 - 8) extend to "protected animals" as defined in this clause, whereas the welfare offence (Clause 9) applies to animals for which a person is "responsible" as that word is to be understood under clause 3.
15. 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.
16. 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
17. Clauses 4(2), 5(2), 6(2), 7(2) and 9 only apply to persons who are "responsible for an animal" as that phrase is understood under this clause. Similarly, the power to issue improvement notices in clause 10 and the regulation-making power in clause 12 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 13.
18. 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 taking responsibility for the animals kept in his surgery overnight, staff at boarding premises, and staff at animal sanctuaries.
Prevention of harm
Clause 4: Unnecessary suffering
19. 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.
20. 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.
21. 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.
22. 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
23. 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.
24. 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.
25. 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 only to bring clause 5 into force at a time when exemption regulations under subsection (4) were also ready to be brought into force.
26. Subsection (5) imposes a duty on the Secretary of State and the National Assembly for Wales to consult before introducing regulations under subsection (4).
27. Subsection (6) makes clear that docking a dog's tail is outside the scope of this clause, and that this is to be considered solely under clause 6.
Clause 6: Docking of dogs' tails
28. Clause 6 prohibits the docking of a dog's tail, otherwise than for the purposes of its medical treatment, unless a vet has first certified that the dog is likely to work. It also restricts the showing of docked dogs. A dog docked after this clause comes into force can only be shown if it is for the purpose of demonstrating its working abilities.
29. Subsections (1) and (2) make it an offence for a person to dock a dog's tail, or for a person responsible for a dog to cause its tail to be docked or permit it to be docked, otherwise than for the purposes of its medical treatment.
30. Subsection (3) stipulates that an offence would not be committed under subsection (1) or (2) if the dog was under 5 days old and a vet had certified that it was likely to work. This would not affect the Veterinary Surgeons Act 1966 which provides that the docking of a dog's tail can only be done by a vet. Subsection (4) restricts the types of work for which a dog can be certified as a working dog.
31. Subsection (5) sets out a defence available in respect of the subsection (1) and (2) offences. A person who docks a dog's tail, or causes or permits a dog's tail to be docked, will not commit an offence if they reasonably believe either that the dog is under 5 days old or that a vet has certified that it is likely to work. For example, if a vet docked the tail of a 6 day old police dog, reasonably believing it was 4 days old, he would not commit an offence.
32. Subsection (6) requires a person who owns a dog which was legitimately docked by a vet to ensure that the dog is identified as having been legally docked. A person will commit an offence if they do not take reasonable steps to ensure that a dog which they own is identified before it becomes three months old. Subsection (11)(b) allows the appropriate national authority to make regulations about the method of identification required, e.g. micro-chipping.
33. Subsections (7) to (9) introduce a restriction on the showing of docked dogs. Subsection (7) makes it an offence to show a dog at an event to which a fee-paying public is admitted if the dog has had its tail removed. It will be irrelevant, for these purposes, whether the dog's tail was removed in England and Wales or elsewhere. This ban on showing will apply to all dogs whose tail was removed after the date on which this clause comes into force.
34. Subsection (8) provides an exemption to that ban if a certified working dog is being shown only for the purpose of demonstrating its working ability. Subsection (9) ensures that a person would not be liable to conviction if they could show that they reasonably believed either that the dog was docked before the clause came into force, that a fee paying public was not being admitted or that the dog was a certified working dog demonstrating its working abilities.
35. Subsection (11) allows the appropriate national authority to make regulations in relation to the vet's discretion in deciding whether a dog is likely to work and in relation to the identification of legally docked dogs. Under subsection (11)(a) the appropriate national authority could, for example, make provision for issuing a standard template certificate or for specifying the type of evidence a vet should see before being able to certify that a dog is likely to work. Subsection (11)(c) allows regulations to make provision about the functions of inspectors in enforcing this clause. This will enable the appropriate national authority to make provision, for example, empowering an inspector to inspect a certificate or read a microchip on a dog.
Clause 7: Administration of poisons etc.
36. 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.
37. 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.
38. 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. While this mental element relates to the nature of the substance administered, the term "administer" should be understood as indicating a deliberate action. Accidental poisoning will not be caught by clause 7.
39. 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 8: Fighting etc.
40. This clause creates a specific offence of animal fighting, which in the 1911 Act was subsumed under the general heading of "offences of cruelty".
41. The offences under the clause replace the offences under sections 1(1)(c), 5A and 5B of the 1911 Act.
42. Subsection (1)(a) will penalise causing an animal fight, or attempting to do so. Subsections (1)(b)(i) cover various activities relating to animal fights, such as receiving money for admission, publicizing a fight, training an animal to fight and taking part in a fight.
43. Subsection (2) will make it an offence to be present at an animal fight without lawful authority or reasonable excuse.
44. Subsection (3) creates offences relating to recordings of animal fights that took place in Great Britain after this clause becomes law. It will be an offence to supply, publish, show, or possess with intent to supply, such a recording without lawful authority or reasonable excuse. An exemption from these offences is provided in subsection (5) for recordings used, or intended for use, in a "programme service" as defined in the Communications Act 2003.
45. Subsection (6) makes provision to ensure that the national authority can comply with Directive 2000/31/EC of the European Parliament and of the Council of 8th June 2000 on certain legal aspects of information society services, in particular electronic commerce in the Internal Market (Directive on electronic commerce). The Directive requires that the offence is extended to information society service providers established in the UK but who operate (for example by publishing) in another EEA State. The government intends to effect this extension by making regulations under the European Communities Act 1972. Subsection (6) will ensure that the same penalties can be applied to such providers as to others who commit the offence, when the offence is extended.
46. Subsection (7) 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 the animal or animals involved within the meaning of clause 3.
47. 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.
48. Subsection (7) defines a video recording as a recording, in any form, from which a moving image may by any means be reproduced and includes data stored on a computer disc or by other electronic means which is capable of conversion into a moving image. This definition will not cover still photographs.
1. Promotion of welfare
Clause 9: Duty of person responsible for animal to ensure welfare
49. The welfare offence in this clause extends to non-farmed animals similar provisions found in the Welfare of Farmed Animals (England) Regulations 2000 1 (made under the Agriculture (Miscellaneous Provisions) Act 1968), which ensure the welfare of livestock situated on agricultural land. 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)).
1 S.I. 2000/1870
50. 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 9.
51. 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 9(1).
52. Subsection (2) specifies some of 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.
53. 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.
54. Note that subsection (3) does not provide those responsible for animals with an absolute defence under this clause. It will direct courts to take a lawful purpose or a lawful activity into account as one factor in the balance; it will not direct them that no offence can be committed under this clause so long as the activity or purpose is lawful.
55. 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.