2006 Chapter 45

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These Notes refer to the Animal Welfare Act 2006 (c.45) which received Royal Assent on 8 November 2006

ANIMAL WELFARE ACT 2006

EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Animal Welfare Act 2006 which received Royal Assent on 8 November 2006. They have been prepared by the Department for Environment, Food and Rural Affairs (Defra) in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given.

BACKGROUND

3.     The Act brings together and updates 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 Act depend on the offence in question. For example, the duty to ensure an animal's welfare only applies to animals that are owned or for which someone is otherwise responsible, but the cruelty and fighting offences have a wider application. The Act has only limited application to animals in research establishments, the welfare of which is regulated by the Animals (Scientific Procedures) Act 1986. The Act aligns 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 Act 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 2 January 2002 and 30 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 8 December 2004 (HC 52-I and II). On 3 March 2005 EFRA published Defra's response to the Committee's report (HC 385). Both the Report and the response are available on the UK Parliament's website at:

www.publications.parliament.uk/pa/cm200405/cmselect/cmenvfru/cmenvfru.htm. The Committee published a further report on 14 December 2005 (HC 683). This report is available at www.publications.parliament.uk/pa/cm/cmenvfru.htm No response was required as the report contained no recommendations.

OVERVIEW

7.     The Act covers various aspects of animal welfare and sections are grouped under 11 headings. These are as follows:

Introductory Sections 1 to 3 set out the scope of the Act and define the different categories of animal to which the Act applies.

Prevention of harm Sections 4 to 8 set out offences relating to cruelty and animal fighting.

Promotion of welfare Sections 9 to 12 set out specific offences which relate to the promotion of welfare. Section 9 imposes a duty to ensure welfare. Section 10 empowers inspectors under the Act to issue improvement notices to those responsible for animals. Section 11 relates to the sale of animals to persons under 16 and the giving of animals as prizes to unaccompanied under 16s. Section 12 provides for the making of regulations for the purpose of promoting the welfare of animals for which a person is responsible.

Licensing and registration Section 13 confers power to make 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 Sections 14 to 17 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 Sections 18 to 21 describe the powers which an inspector or constable has to enter premises and remove animals which are in distress, including 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 under these sections.

Enforcement powers Sections 22 to 29 set out the enforcement powers contained in the Act, including the powers of entry and search, seizure of animals and inspection under certain conditions.

Prosecutions Sections 30 and 31 give local authorities the power to prosecute proceedings for any offence under the Act and set time limits for prosecutions.

Post-conviction powers Sections 32 to 45 set out the penalties available on conviction. They include imprisonment, fine, deprivation, disqualification, destruction, forfeiture of equipment and cancellation of a licence or registration.

Scotland Sections 46 to 50 make provision for disqualification orders under the Act to apply across Great Britain and for the powers of the Scottish courts in relation to breach in Scotland of disqualification under the Act.

General Sections 51 to 69

Schedule 1 (Regulations under section 13)

Schedule 2 (Powers of entry, inspection and search: supplementary)

Schedule 3 (Minor and consequential amendments)

Schedule 4 (Repeals)

TERRITORIAL EXTENT

8.     The Act extends to England and Wales. It extends to Scotland only in respect of (a) section 46, which enables disqualification orders made by the courts in England and Wales to have force in Scotland, (b) sections 47 to 50, which make provision about the powers of the Scottish courts to enforce in Scotland of disqualification orders under the Act, (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

9.     In relation to England, all of the regulation and order making powers contained in the Act 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 Act 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 Act affects England and Wales in the same way.

APPLICATION TO THE SEA

10.     The Act will apply to all inland waters (rivers, streams, lakes and ponds) and to estuaries. It will not apply to the sea.

COMMENTARY ON SECTIONS

Introductory

Section 1: Animals to which the Act applies

11.      The Act will apply only to vertebrate animals, as these are currently the only demonstrably sentient animals. However, section 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.

12.     In the case of Wales, the "appropriate national authority" means the National Assembly for Wales, and for England it means the Secretary of State.

Section 2: "Protected animal"

13.     This section, together with section 3, establishes the scope of the principal offences under the Act, by defining those animals which the Act will cover. The cruelty and fighting offences (Sections 4 - 8) extend to "protected animals" as defined in this section, whereas the welfare offence (Section 9) applies to animals for which a person is "responsible" as that word is to be understood under section 3.

14.     Animals 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.

15.     Animals of a kind 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 may have ceased to be under the control of man, and therefore do not fall within section 2(b), but are not yet living wild, including (though not limited to) animals which have escaped, for example from a zoo or circus.

Section 3: Responsibility for animals

16.     Sections 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 section. Similarly, the power to issue improvement notices in section 10 and the regulation-making power in section 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 section 13.

17.     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

Section 4: Unnecessary suffering

18.     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 section is intended to replicate the protection provided by the 1911 Act, but to simplify and update the legislation.

19.     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.

20.     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 section 3.

21.     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 section). 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 section). Where suffering inevitably occurs in the course of complying with any regulations, licence or code of practice an offence would not normally be committed.

Section 5: Mutilation

22.     This section 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 section 2.

23.     Subsection (3) defines the term "carrying-out of a prohibited procedure".

24.     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).

25.     Subsection (5) imposes a duty on the Secretary of State and the National Assembly for Wales to consult before introducing regulations under subsection (4).

26.     Subsection (6) makes clear that docking a dog's tail is outside the scope of this section. This is to be considered solely under section 6.

Section 6: Docking of dogs' tails

27.     Section 6 prohibits the docking of a dog's tail, otherwise than for the purposes of its medical treatment, the dog is a certified working dog and is not more than 5 days old. It also restricts the showing of docked dogs. A dog docked after this section comes into force can only be shown if it is for the purpose of demonstrating its working abilities.

28.     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 purpose of its medical treatment.

29.     Subsections (3) and (4) stipulate 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 he had seen evidence 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. Subsections (4), (5) and (6) provide for the appropriate national authority to make regulations specifying both the evidence that a vet must see before he can certify the dog as a working dog, what types of work will qualify a dog as a working dog and the types (breed) of dog that may be exempted from the ban.

30.     Subsection (7) 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 he reasonably believes that the dog is under 5 days old and that a vet has certified it as a working dog. 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.

31.     Subsection (8) 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. The owner will commit an offence if he does not take reasonable steps to ensure that his docked dog is so identified before it is three months old. Subsection (13)(b) allows the appropriate national authority to make regulations about the method of identification required, e.g. micro-chipping.

32.     Subsections (9) to (11) introduce a restriction on the showing of docked dogs. Subsection (9) 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 section comes into force.

33.     Subsection (10) provides an exemption to that ban if a certified working dog is being shown only for the purpose of demonstrating its working ability. Subsection (11) ensures that a person would not be liable to conviction if he could show that he reasonably believed either that the dog was docked before the section came into force, that the fee paying public was not being admitted or that the dog was a certified working dog demonstrating its working abilities.

34.     Subsection (13) allows the appropriate national authority to make regulations about the functions of inspectors in enforcing this section. 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.

Section 7: Administration of poisons etc.

35.     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 reasonable excuse.

36.     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 reasonable 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.

37.     Under this section 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 section 7.

38.     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.

Section 8: Fighting etc.

39.     This section creates a specific offence of animal fighting, which in the 1911 Act was subsumed under the general heading of "offences of cruelty".

40.     The offences under the section replace the offences under sections 1(1)(c), 5A and 5B of the 1911 Act.

41.     Subsection (1)(a) will penalise a person 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, publicising a fight, training an animal to fight and taking part in a fight.

42.     Subsection (2) will make it an offence to be present at an animal fight without lawful authority or reasonable excuse.

43.     Subsection (3) creates offences relating to recordings of animal fights that took place in Great Britain after this section 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.

44.     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 8 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 section 2(2) of 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.

45.     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 section 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 section 3.

46.      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.

47.     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.

Promotion of welfare

Section 9: Duty of person responsible for animal to ensure welfare

48.     The welfare offence in this section extends to non-farmed animals similar provisions found in the Welfare of Farmed Animals (England) Regulations 2000 ¹ (made under Part 1 of 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 section 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

49.     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 section, 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 section 9. If the animal actually suffers as a result of its abandonment, there may also be an offence committed under section 4.

50.      Note also that when a person transfers responsibility for an animal to another temporarily, the duty will apply in so far as he must take reasonable steps to 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 section 9(1).

51.     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 section.

52.     Subsection (3) specifies certain matters to which the courts should have regard, when considering whether a person has committed an offence under this section. 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 this into account when considering what is reasonable in the circumstances of the case

53.     Note that subsection (3) does not provide those responsible for animals with an absolute defence under this section. It will direct courts to take a lawful purpose or a lawful activity into account as one factor in the balance; it will not mean that no offence can be committed under this section so long as the activity or purpose is lawful.

54.     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.

Section 10: Improvement notices

55.     Section 10 empowers inspectors under the Act to issue 'improvement notices' to those responsible for animals, if they are of the opinion that the requirements of section 9 are not being met.

56.     Subsection (1) stipulates the information that an improvement notice must contain. The inspector must state that he believes the person is failing to comply with section 9 and the respects in which he believes the person is failing to comply; state the steps that should be taken in order to comply and the time in which they must be taken; and explain the effect of subsections (2) and (3).

57.     Subsection (2) ensures that no prosecution under section 9 can be initiated in respect of the non-compliance specified in the notice, or any continuation of that non-compliance, until the period for complying with the notice has passed. This will not affect the ability of enforcers to bring prosecutions under section 9 for non-compliance that is not specified in the notice - for example, a prosecution could still be initiated during the compliance period in relation to animals not specified in the notice (for failure to feed a flock of sheep, if the notice was issued for failure to feed a herd of cattle), or in relation to behaviour not specified in the notice (for failure to water when the notice relates to feed).

58.     Subsection (3) provides that, where a person responsible for an animal takes the steps specified in a notice issued under subsection (1) within the time specified, no prosecution can be brought under section 9 for the non-compliance in relation to which the notice was issued, or any continuation of that non-compliance prior to the taking of the steps specified in the notice. This means that a person who takes the steps required by an inspector within the specified time will have a shield from prosecution under section 9, in relation to that particular instance of non-compliance with section 9.

59.     This section will not affect the ability of enforcers to bring prosecutions under section 9 without issuing a notice first, or their ability to bring prosecutions in respect of non-compliance that is not specified in the notice (e.g. in respect of failure to feed cattle, where the notice relates to failure to feed sheep), or in respect of subsequent non-compliance (e.g. where a person takes the steps required by the notice, but two months later lapses again).

60.     Subsection (4) provides that an inspector may extend, or further extend, the compliance period if he considers it appropriate.