Notes to Chapter 2: General Provisions
Section 7 Prohibition of Cruelty to Animals
Section 8 Prohibited Interventions Performed on Animals
Section 9 Prohibition of Killing Animals
Section 10 Prohibition of Passing on, Selling, Offering for Sale, Purchasing or Possessing Certain Animals (Doomed Animals)
Section 11 Obligation to Grant First Aid
Whilst the primary purpose of this Act is the development of a humane ethic and positive ‘duty of care’, the following provisions mainly relating to the general human-animal relationship are established at the outset to categorically prohibit certain unacceptable acts of cruelty.
Section 7 (1): This Axiom contains the core elements of an offence against this law. It is a general clause explicitly prohibiting the infliction/causing of pain, suffering or injury on an animal, or exposing an animal to illness and disease or to fear and distress, without ‘sound justification’ (in terms of any overriding reason of human or animal welfare), whereby ‘sound justification’ means there is a factual/objective justification or a legitimate interest for the act or omission, in other words the conduct must be in regard to the reason as well as to the expedient used and the extent of the encroachment vindicated.
This norm protects all animals and makes no distinction between owned animals and animals which are not under the ambit or care of people. The tort itself can be committed by everybody. Both wilful and negligent commitments of the offence are covered.
The wording of the general prohibition clause has been carefully considered, and a decision made to express this as a prima facie prohibition against the infliction of any pain, suffering, injury or the exposure to illness and disease or to fear or distress - with the only exception to this being over-riding reasons of human or animal welfare (with ‘sound justification’ explained above). This is considered the only way of complying with the internationally-recognised Five Freedoms, which have been included as fundamental principles of this Act. The use of any wide qualification of the prohibition, such as ‘unnecessary’ or ‘unavoidable’ has been dismissed as such terms are frequently used to justify the breach of clauses protecting the welfare of animals when balanced against any common commercial practices or economic needs. In our view, this approach does not meet the spirit of the Five Freedoms, or the moral imperative to safeguard the welfare of each animal.
[However, if consideration is given to including any qualifying terms, then (as regards ‘pain, suffering or injury’) the term ‘avoidable’ is considered preferable to the term ‘unnecessary’, which has already caused many interpretive problems in practice.]
Similarly, deliberation has been given to the possibility of including the qualification ‘significant’ in relation to ‘fear’ in some of the specified provisions detailed in Section 7 (2) (see below), as it was recognised that in some cases fear could be fleeting and also triggered in response to an imagined threat (as well as a real threat). In such cases, it would be considered disproportionate to prosecute. However, the qualifier was omitted in order to meet the principles of the Five Freedoms. At an earlier stage the qualifier ‘significant’ was likewise rejected in relation to ‘distress’, because ‘distress’ was considered to have more of a fundamental impact on the welfare of the animal.
[However, if consideration is given to including any qualifying terms, in regard to ‘fear’ then the term ‘significant’ is considered preferable to either ‘avoidable’ or ‘unnecessary’, for the reasons given above. As regards ‘distress’ no qualifier is considered acceptable.]
Section 7 (2): Contains a list of specified general prohibitions which are not subject to negotiation. These provisions deal with the human’s incumbent responsibility for his/her actions towards the animal as a fellow being. Thus they stipulate the basic mandatory principles of human conduct towards the animal, providing the imperative guidelines which would form the basis of any further and more specific regulations [and, as appropriate, ‘Welfare Codes’, standards and guidance].
Still, this list of 26 gross violations is neither final nor conclusive, and can be extended by the inclusion of further serious general prohibitions if the legislator feels this would be preferable for reasons of clarity and detail. However, it should be born in mind that not all contingencies can be comprehensively covered at an early stage of law development, so it is often preferable to include wider general provisions, as opposed to a greater number of provisions containing more specific details. The aim is to provide a framework law which establishes major principles, which cover the widest possible variety of circumstances, but remains transparent and accessible.
The order of these violations should not be deemed to be indicative of the severity of the individual act or infringement, i.e. the position in the list of provisions does not reflect the severity of the breach (and should not be interpreted as the higher the more serious, and the lower the less serious the offence).
To Pt. 11: Some of the provisions in Section 7 (2) are general in nature, and will need to be more specific and tightly drafted in regulations. For example, this provision on tethering could specify the minimum length of any tether and its type (e.g. a running lead which moves freely and enables a dog to run along its length without danger of entanglement).
To Pt. 20: The Animal Welfare Committee will compile a list of traps and catching devices which are authorised, as well as define which poisons are allowable in which circumstances (positive list). When carrying out their review, they will also clarify which do not meet their criteria, and therefore should be prohibited.
To Pt. 23: This provision safeguards domestic or companion animals from abandonment in all circumstances. It also prevents the abandonment/release of non-indigenous wildlife in recognition of the fact that these are not adapted to survive in the alien environment and may adversely affect the welfare of native wildlife and the balance of nature/biodiversity. As regards indigenous wildlife, the provision against abandonment/release applies in cases where they have not been fully rehabilitated or where there are any doubts about their ability to survive. This is to prevent abandonment or irresponsible release back into the wild and/or release into unsuitable territory (for example, into alien habitat and/or in close proximity to human habitation).
‘Founded reasons’ (to doubt an animal’s ability to survive in the territory to which it is being released) would include examples such as: the case of an injured wild animal which has not been successfully rehabilitated to adapt to a life in the wild; or a wild animal being released into unsuitable or dangerous territory.
To Pt. 26: This provision is in particular aimed at prohibiting sexual actions for the purpose of sexual gratification, perversion, recreation, entertainment or abuse. ‘Unnatural offences’ against animals, such as ‘carnal knowledge of an animal’/sodomy/bestiality, are sometimes included in a country’s Penal Code. It has been incorporated here in this framework Act, to ensure that all criminal offences against animals are covered in one law. This may necessitate further discussion, and possibly an amendment of the Penal Code.
Today’s legal requirements in connection with interventions performed on animals have to conform to a number of important (and often recently established) norms. It is necessary that these norms are prominently reflected in any new regulations [and, as appropriate, ‘Welfare Codes’, standards and guidance]. The underlying principles include securing the integrity and well-being of the animal.
Clearly interventions have to be permitted for therapeutic or diagnostic purposes, where these are likely to be in the interests of the animal’s health and welfare. An exception has also been permitted for expert markings/identification, where this is carried out in accordance with legal regulations. This is currently considered acceptable for purposes of animal management and traceability, but may be superseded by more welfare-friendly methods in the future – in which case the situation can be amended by regulatory means, as opposed to an amendment of this act.
Any intervention to create a transgenic animal is categorically prohibited, as not only might this have a detrimental impact on the animal or the animal’s progeny; but would also infringe the intrinsic value and integrity of the animal.
Non-therapeutic mutilations are strictly prohibited, with the exception of a limited number of specified exemptions, for example, to prevent reproduction or to indicate a neutered stray animal by the tipping of an ear (see Section 8 (3) for details).
In addition and as a brief summary of Section 8, three main focus points alone would justify any intervention which might cause any pain for the animal: a medical indication must be established and then the intervention may only be performed under effective anaesthesia and in compliance with the obligation that the procedure including the pre-sedation, the post-operative treatment of pain and with non-steroidal anti-inflammatory drugs must be carried out by a qualified veterinarian.
Section 9 (1): Initially animal protection legislation concentrated mainly on the prohibition of animal cruelty. The unjustified (please see also explanation of ‘sound justification’ in the Explanatory Notes to Section 7 (1) above) killing of a vertebrate was only made a punishable offence from the second half of the last century (for example, by Germany in the 70s). In principle, following an ethical approach, a comprehensive protection of life should be guaranteed for every individual animal – thus the general interdiction of killing an animal should be explicitly included in the law. However, in order to enable practical and progressive implementation this prohibition is dealt with by providing limited permission for the killing of animals, as stated in accordance with provisions stipulating an exception from this rule and offering an express authorisation, for example in connection with the killing/slaughter for the production of meat or for reasons of disease or ‘pest’ control. It is also worth remembering that ‘sound justification’ will be partly dependent on current social and cultural norms, and may therefore change over time (for example, killing of animals for food may currently be considered an accepted justification, but this may not be the case in future, for instance, when meat substitutes and test-tube grown meat are widely available and accepted).
Section 9 (2): The inclusion of a categorical ban on killing of a companion animal, and in particular of dogs and cats, does not seem superfluous within this concept. These animals have been domesticated to hold a special relationship with humans, rather than for any economic purposes. Thus no justification is able to override these strict legal rules.
Countries may consider adding other animals to this list – for example, wildlife (such as turtles or tortoises) for which there may already be a ban on killing in a wildlife law.
Section 9 (3): A categorical ban on the killing of any animal in order to provide entertainment has also been included. This is for avoidance of doubt – here again no justification is able to override these strict legal rules.
Section 9 (4): Here consideration could also be given to imposing a prohibition of killing an animal in a public place/space (like a market, a street, a square etc.) and of killing an animal in the sight or view of another conscious animal.
Section 10 Prohibition of Passing on, Selling, Offering for Sale, Purchasing or Possessing Certain Animals (Doomed Animals)
Section 10 (1): Another exception from Section 9’s prohibition to kill any animal is covered in Section 10 in association with doomed animals. This is the case when the continuation of life would be connected with irremediable pain, suffering, agony, torment or distress, which would represent an unreasonable and unacceptable burden for an animal. In such cases the law requires the immediate humane killing of the animal concerned. This first sub-section prohibits the passing on, selling, offering for sale or purchase of such animals.
Section 10 (2): Further prohibition has been included covering the possession of any animal, without reasonable cause, which is suffering irremediable pain, agony, torment or distress. This is necessary for purposes of consistency of approach – to ensure that owned animals do not suffer similar unreasonable and unacceptable burdens; requiring the immediate humane killing of such animals. This can assist animal welfare in practical ways, for example, in cases where producers retain a suffering animal until it reaches its slaughter weight, or where owners or keepers of companion animals still keep them alive even though they are doomed and their welfare is seriously impaired.
Evidently, there are discrepancies in concepts and views regarding an obligation to extend first aid to an animal and these are to a certain degree attributable to differences between legal systems. In Austria for instance according to § 9 Tierschutzgesetz (Animal Welfare Act) of 2005 someone “who has recognisably hurt or jeopardized an animal shall, to the extent he can reasonably be expected to do so, grant the necessary first aid to the animal”. The new Norwegian Animal Welfare Act of 2010 goes even further and speaks in its § 4. 'Duty to help‘ provision of the general public, i.e. “anybody who discovers an animal which is obviously sick, injured, or helpless, shall as far as possible help the animal”, so here no perpetrator situation is required any more.
As the aspiration is to compile a forward-looking and all-embracing piece of legislation, the Norwegian approach is definitely seen as among the most progressive and considerate practices and thus preferred.
Section 11 (1): Obliges everyone, and not just those causing an accident or a hazardous situation, to render an animal first aid and care as needed, or to arrange for such first aid and care and/or diagnosis and treatment. However, this legal duty is slightly limited as it falls under the precondition that the person concerned can reasonably be expected to act and comply with this obligation.
Section 11 (2): Obliges the owner or keeper of an animal to provide a sick, injured or distressed animal with diagnosis and appropriate treatment without any delay: Where necessary, veterinary advice must be sought. For avoidance of doubt: The primary duty of care falls upon the owner or keeper of the animal. However, it is recognised that in emergency situations, as above, the owner or keeper may not be on hand or available to carry out such duties.
To Chapter 2 - Aspects still to be given further consideration:
- From the perspective of creating an objective ranking for the above mentioned provisions further consideration could be given to whether the ‘Prohibition of Killing Animals’ (Section 9) – as the more serious infringement – should be positioned before the ‘Prohibition of Cruelty to Animals’ (Section 7). The traditional classification of cruelty to animals utilised here and thus systematically located before the actual tort of killing an animal, results from legal-historical reasons; as originally animal cruelty was the primary determinant of the real legitimacy of animal protection, and thus constituted the central focus and objective of animal protection laws. Nowadays this no longer applies; and in most of the more recent examples of animal welfare laws the unjustified killing of a vertebrate is now seen as a punishable offence.
- Another fundamental consideration is whether to include, in the appropriate position, a general paragraph giving the Minister or the Competent Authority the authorisation to adopt any regulations [supplemented as necessary by ‘Welfare Codes’, standards and guidance] in order to provide further interpretation or detail in support of certain provisions.