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Scottish Executive Consultation on the Draft Animal Health and Welfare (Scotland) Bill

14 July 2005

Thank you for the opportunity for the Farm Animal Welfare Council (FAWC) to provide its views on the draft Animal Health and Welfare (Scotland) Bill.

I enclose for background a letter sent to Defra in May 2002 in which FAWC set out its initial thoughts on modernising animal welfare legislation in Great Britain (Appendix 1).

In addition, FAWC sees significant improvement issues represented in the draft including:

• Modernisation of existing law for both farmed and companion animals;
• Real strengthening in respect of companion animals (although this is outside our remit);
• Establishing the basic principle of ‘ensuring an animal’s welfare’;
• A real strengthening of the provisions and sanctions for animals likely to be in distress/likely to suffer in addition to those in actually in distress/suffering, including not just Court penalties but a very positive stance on deprivation and disqualification;
• Bringing clarity to when a defendant is in breach of a disqualification order;
• Greatly enhanced enforcement powers for inspectors and constables and delegated powers of prosecution for Local Authorities to deal with the welfare of animals.

We believe that all of these improvements are absolutely essential to the impact of the eventual legislation and it will be critical to ensure that they survive the debates between now and enactment. We will be happy to provide advice and assistance during this process.

This Bill places considerable reliance on the veterinary profession delivering an informed opinion on both matters of health and welfare. It is critically important that welfare is seen as an important issue in its own right. We are confident that the veterinary profession is adequately trained and experienced to handle matters relating to health and disease. However, we do have concerns that the depth to which animal welfare is taught, both in veterinary schools and to the practising profession through Continuing Professional Development, may not be adequate for the demands of this proposed legislation. We are aware that the profession has recognised this but there will be a need for further activity from the RCVS and Government to ensure the strength of this cornerstone of the proposed law.

S18 prohibits activities classed as mutilations unless there is a specific order by the appropriate national authority (subsection 5). Tail-docking and teeth-clipping is currently permissible on pig farms in some circumstances under veterinary supervision. Related problems in pigs (e.g. tail-biting) are not fully understood and are under current research. It is important for welfare reasons that the ability to continue with teeth-clipping and tail-docking where circumstances are deemed appropriate under veterinary health plans is in place at the same time, i.e. by a national order as described, before this part of the bill is introduced.

Some confusion has been expressed about the licensing and enforcement roles of local authorities. These different roles may be taken up by different tiers of local authority for different classes of animals (e.g. farm and companion animals). This would benefit from clarification.

S22 - FAWC notes and welcomes the translation of the five freedoms into the legislation. It is hoped that the application of these needs, and others, will have real positive impact on the welfare of farmed animals.

S24 - The potential, through the enabling Act, to require licensing of activities involving animals is a powerful piece of legislation. FAWC would draw attention to its recent Report on the Welfare of Farmed Animals at Gatherings which calls for a single piece of legislation to protect the welfare of farmed animals at all gatherings and specifically recommends “that the licensing of all gatherings should be subject to welfare provisions and to inspections based on risk.” It would be a great step forward if Scotland were to take these recommendations forward.

S32 - Concern has been raised about the need for policemen and other agents who may become involved in emergency killing of animals to have adequate training to fulfil this role successfully.

FAWC notes the provision in section 33 enabling Scottish Ministers to establish by statutory means a body to provide it with advice on matters concerning the welfare of animals. Council hopes it can continue to discharge its primary responsibility to the Scottish Executive by offering advice on farm animal welfare issues in line with its remit.

Council is concerned about the apparent lack of any additional financial resources from Government to support this major initiative. A Regulatory Impact Assessment suggesting no additional funding for the work of Local Authorities and other enforcement agencies understates and weakens the potential benefits that this legislation could bring to the welfare of animals. In order for the law to have the impact it deserves it must be effectively enforced and this will require funding from Central and Local Government.

I would bring your attention to two publications recently launched by FAWC: Report on the Welfare of Farmed Animals at Gatherings; and Report on the Welfare Implications of Farm Assurance Schemes. Copies are enclosed.

With kind regards,

Yours sincerely

Professor Christopher Wathes
FAWC Chairman

APPENDIX

Mr Phil Alder
Branch F, Animal Welfare Division
DEFRA, Room 606, 1A Page Street
LONDON, SW1P 4PQ
20 May 2002
Dear Mr Alder

PLANS TO MODERNISE ANIMAL WELFARE LEGISLATION

Thank you for the opportunity for FAWC to comment on proposals to modernise and simplify the various legislation on animal welfare.

Council is restricting its comments to issues relevant to farm animals. However, it recognises that these species are not always found on agricultural land and subsequently the level of protection afforded to them varies. FAWC considers that the protection of an animal’s welfare should be relevant to the animal and not relative to its location.

It has been noted that the new DEFRA remit, covering all animal welfare issues except animals used in experiments, might logically lead to a single animal welfare Act, similar to those now in place in New Zealand and Germany. If a new single Act which protects the welfare of all captive animals is the desired outcome then all the Acts, particularly the Protection of Animals Act 1911 would need to be modernised and consolidated, rectifying problems with the current legislation and all opportunities taken to strengthen the law where required. There is confusion within the current legislation about the definitions of farmed animals, holdings and of agricultural land, which would need to be addressed.

It is equally important to ensure that no enforcement abilities are lost. Powers should be improved and made equally consistent. With this intent, we attach a copy of FAWC’s 1990 Report on Enforcement together with the 1999 update. Both documents address many of the areas where we see problems with enforcement.

There is a need for clarity about the status of horses in animal welfare legislation. It is uncertain whether, and under what circumstances, they are considered as ‘agricultural’ animals.

We have noted that the consultation was restricted to England. While it is unlikely that wildly differing legislation would be introduced by the devolved administrations, FAWC would like to see consistently strong legislation across Great Britain.

“Likely to cause…”

Calls for an offence of conduct “likely to cause” unnecessary pain or unnecessary distress could enable enforcement action to be taken in a situation where it was obvious that an animal’s welfare was compromised, but not to the extent of actually causing unnecessary suffering. Enforcement authorities should not have to wait for circumstances to worsen. On the other hand there is a need to safeguard against claims that actions taken or omissions were likely to cause suffering in circumstances where this was unlikely to be the case, e.g. animals kept on water meadows with a remote risk of flooding. If this offence were to be included in the armoury of the single Act then it would need to be tightly defined. There are precedents for legislative clauses, such as “likely to cause suffering by reason of” in the welfare during transport legislation and “likely to cause significant harm” in child protection legislation.

An alternative approach to the ‘likely to cause” offence might be a “duty of care”, based on the five freedoms, for animals in the charge of a keeper. Failure to discharge this duty through act or omission and/or failure to respond to an improvement notice would constitute an offence. There may be a need for statutory provision to facilitate the use of improvement notices.

It is important however that commonly accepted husbandry practices which may even have welfare benefits in normal weather (e.g. outdoor housing of hens or pigs) do not fall into the category of “likely to cause” unnecessary pain or distress simply because a possibility exists that inclement weather may suddenly arrive.

Enforcement powers.

A consolidated Act might best designate the enforcement authorities to be involved, but on a multi-agency approach with defined powers and consistent with the expertise required by each case. There should be discretion for enforcement authorities to give advice on improvement or to issue compliance notices. Also, powers now in place in GB to take custody of animals, could be used in a “likely to cause” case before suffering occurred, but there needs to be the will and the resources available to exercise this option. Commitment and consistency is needed from the enforcement authorities. . Abandonment of animals needs to be added to the consolidated welfare Act, its current place under Police responsibility is out of date. Enforcement authorities need powers to take such animals into custody and sell or slaughter them if they could not be returned to their owner. Requirement for Police attendance and authorisation to slaughter a welfare-compromised animal is similarly out of date

There are major elements of enforcement under the Agriculture (Miscellaneous Provisions) Act 1968 for which local authorities are not designated as an enforcement authority but for which they are well qualified to act. The current arrangements have the potential to constrain entry and the potential enforcement action local authorities can take on farms.

Time limits.

We understand that 6 months is often too short a time for the enforcement process to bring matters to Court and is now at odds with many modern criminal statutes. We would support an extension in the time limit in line with current thinking.

Codes of recommendations

While codes should be capable of being used in support of welfare cases, most of the current codes are well out of date. FAWC needs a commitment from DEFRA to comply with the recommendation of its 1999 Enforcement Update Report (see copy attached) for reviews to codes of recommendations to be performed on a regular basis, perhaps on at least a quinquennial cycle.

Disqualification.

The problem of individuals disqualified from having the custody of animals simply transferring ownership in the animals to a family member and continuing to have daily contact and care of their stock is totally unacceptable. The deterrent of disqualification is currently insufficient. A tighter definition of “custody” of animals is required which sets out what contact with animals is permitted, and the process available to enforce this. There is currently no specific offence of breach of a disqualification order, just contempt of court.

Pet Fairs.

It is conceivable that farm species such as goats, pigs, ducks, geese, etc. could be found in pet fairs and they need protection in the same way as those kept on farm, including animal health provisions. As noted earlier, a single Act protecting the welfare of animals regardless of their location could deal with this, and other, anomalies. It has been suggested that farm animals being treated as pets should transfer ownership only at licensed premises (e.g. pet shop or auction premises). However we believe there should be arrangements for limited private sales between individuals, perhaps based upon some form of passport registered with DEFRA. The scale of pet holdings of pigs, goats, sheep etc should not be underestimated as recent experience of “post FMD” blood testing has demonstrated.

Captive pheasants.

We consider that captive reared pheasants have insufficient protection under current legislation; they are generally considered outside agricultural legislation. Different standards currently apply to captive pheasants reared for meat and for sport. The principle that all captive animals should be treated the same in terms of basic protection should take into account all such cases.

Tail docking.

FAWC believes that any mutilation of a farm animal should have a benefit for the animal concerned or for its immediate companions. The legislation in place is generally satisfactory in regard to farm animals, subject to outstanding FAWC recommendations (e.g. on disbudding and dehorning of cattle).

With regard to the docking of dogs’ tails, FAWC makes no comment. However, in principle FAWC believes that wherever a mutilation is unacceptable on grounds of welfare, it should be made illegal. We believe that exemption on the grounds of exceptional clinical need is always available to a veterinary surgeon and this need not be incorporated into legislation. Wherever a veterinary surgeon exercises such an exemption, it is a reasonable expectation that full clinical records will be available to support the case for exceptional clinical need.

Increased sentences.

With the current level of sentences at £5000 or 6 months imprisonment per offence we understand that very few offenders are ever imprisoned and most are fined. The introduction of new legislation would be a good opportunity for improved guidance to magistrates dealing with animal welfare cases.

Misuse of biotechnology in animal breeding.

This is an area of considerable concern to FAWC about which a separate report is being prepared. We have already expressed our concerns on numerous occasions, including in our response to the Banner Committee’s consultation in 1990 and in our Report on Cloning in 1998. We will be making specific recommendations for a controlling authority to cover this area for at least agricultural animals in a FAWC Report due to be published later this year.

1990 FAWC Enforcement Report and 1999 update (copies attached).

FAWC stands by the recommendations made in its previous advice in 1990 and 1999 and many of these are reflected in the text of this response. Issues specifically addressed in this response include the need for a clear linkage of compliance (with welfare legislation and codes) to subsidy payments, and the need for simplification of cross border authorisation for local authority inspectors in order that investigations can be conducted more efficiently across county, and country, boundaries.

A requirement (preferably statutory) for training and competence testing of stockpersons remains a matter of principle, which FAWC has previously recommended. However we are aware that training delivery capacity may be currently a limitation. Nevertheless, the educational sector has frequently shown its ability to respond rapidly to demand once this is established. We would re-iterate our recommendation from the FAWC submission (November2001) to the Policy Commission on the Future of Farming and Food that “There should be investment into raising the farm animal welfare skills base of those responsible for livestock management in all production systems through better training, appropriate recognition of demonstrable stockmanship skills, and enhanced communication and delivery of advisory services.”

Finally, I would emphasise FAWC’s unique role in providing advice to Government on all aspects of the welfare of farm animals. The Council is thus ideally placed to offer an ongoing advisory role to those within DEFRA involved in the planning and drafting of this new legislation. The Council stands ready to respond promptly with advice; I sincerely hope that this opportunity will be grasped positively for the benefit of the legislation that will ultimately be the result.

With kind regards,

Yours sincerely

Dr Judy MacArthur Clark