As a discipline, animal welfare law is a relatively young sector of the law which is currently experiencing significant and far-reaching changes. This provides great scope for the introduction of new considerations and perspectives in order to influence the future development and execution of this field of juridical expertise. This means undertaking thorough research and analysis of all the different requirements linked to the field, as well as integrating the latest legal, policy, scientific, ethical and practical advancements. This Model Animal Welfare Act has followed this approach, seeking to spare busy legislators from some of this lengthy background research.
In order to introduce major improvements in their animal welfare legislation, countries will need vision, commitment (to doing what is just and right), courage (to break fresh ground) and endeavour (the hard work needed to pass and implement legislation).
The absolutely perfect ‘model’ law is – admittedly – not achievable. This Model Animal Welfare Act can be used as a guide, but it will need to be adapted to take account of each country’s national situation (including its legislative procedures and provisions, socio-cultural situation, and specific animal welfare issues). However, with this approach countries will have the opportunity to design modern, comprehensive animal welfare legislation on a very high level.
Ideally, the recognition of an animal as an individual sentient being and the obligation to respect and protect animals as fellow-creatures should be firmly embedded within the entirety of the juridical system of every country.
This task should preferably commence with the embodiment of key principles and responsibilities in the respective constitutions (as are increasingly being introduced in many countries across the world), thus establishing the foundations for comprehensive and effective care and protection of the animal by the state.
At the very minimum, a constitutional provision on animal welfare and protection should include
The following further provisions are also highly recommended to be manifested in the constitution directly or otherwise at least on statutory level that
Another identified need is the early introduction of a national policy/strategy on animal welfare. This will provide the government with greater detail on the ethical basis of its animal welfare work, and chart a course that it can follow for the proactive development of measures to improve animal welfare and educate and inform stakeholders and citizens. The advantage of formulating an animal welfare policy/strategy at an early stage is that this clarifies the work that has to be undertaken by the government, so the necessary structures, systems and expertise can be developed to deal with this task (indeed, these will be needed before legislation can be considered and drafted, let alone implemented). Simultaneously setting goals, as well as a time-frame for reaching individual objectives under these, is imperative. Governments often attempt to draft animal welfare legislation before they have the necessary policy structures and expertise available, leading to inadvertent mistakes and ineffective provisions which subsequently require amendment.
The following would need to be incorporated in any animal welfare policy/strategy, as a minimum:
One common fundamental problem is where to site the animal welfare remit, i.e. which government department should be given the lead responsibility for animal welfare? Traditionally, animal welfare is located within the Ministry of Agriculture. This arrangement can lead to a clash of interests, i.e. with animal welfare being pitted against competing interests being dealt with in the same department, such as: political, economic, production, land use, science/research etc. In such cases, there is a danger that animal welfare objectives would lose out to human-centred or economic considerations, regardless of any (more altruistic) moral imperative.
Therefore some animal welfare experts promote the idea of a separate ministry for animal welfare affairs. However, such a Ministry is probably more likely to have little power in government. Thus it may be preferable for a separate independent department to be created within a sympathetic ministry.
Another important consideration is where the necessary expertise resides. The OIE, which has now been accepted as the international lead organisation for animal welfare, has national Delegates from each of its member countries. These overwhelmingly come from the national Ministry of Agriculture/Veterinary Services. As animal health is an important component of animal welfare, veterinarians will have a strong professional interest in animal welfare.
So, a country may decide to site animal welfare in the Ministry of Agriculture. However, where this is done, it is essential that measures are taken to avoid any conflicts of interest or ethos.
Another question of competence which frequently arises is that of wildlife welfare. This is often sited under the Ministry of the Environment. In this case, there are (at least) two separate Ministries dealing with wildlife welfare and animal welfare more generally. This can create difficulties whereby different approaches to welfare are adopted by each Ministry, meaning that animals are treated differently depending on the category they fall under (wildlife and other, in this case – so, for example, game animals kept for farming may have much laxer welfare requirements than wild game/game kept in wildlife reserves). This is clearly not equitable, given the uniform ethical principles underlying animal welfare policy and law. It is preferable to have one department leading on animal welfare across the board, so it can establish sound and coherent welfare principles and policies for all animals, and build animal welfare expertise across the board. But if a country does decide to site wildlife welfare under a separate Ministry (e.g. Environment), then it needs to establish procedures to ensure a consistent humane ethos and practical approach in each Ministry.
Occasionally other aspects of animal welfare are sited under other Ministries – for example, live animal transport may be placed under a Ministry of Transport or animals used in science and research under a Ministry for Science and Technology. This raises similar concerns to those discussed above in relation to wildlife, and the same recommendations would apply.
Another option, which has been used by some countries, is to embed the animal welfare remit under a ministry that has no involvement with any animal issues (i.e. covers no issues involving the commercial exploitation of animals). For example, Denmark placed its animal welfare department under the Ministry of Justice at one stage, but this brought a problem with expertise (the practical result of which was that policy staff from the Ministry of Justice had to be supported by veterinary experts at relevant EU/Council of Europe animal welfare meetings). In this case, the remit has now been moved to the Danish Ministry of Food, Agriculture and Fisheries.
Each government will have to make its own choice from the above options, and this will depend largely on its existing government structures and seats of expertise. Situations, needs and practicalities will differ from country-to-country. However, it is paramount that the responsible government agency builds the political will, systems and procedures necessary to administer this important remit. This also means building the values, principles and expertise which will equip it to champion animal welfare throughout government.
The Ministry in charge of the remit will need to place substantial political importance and significance to this subject, and be prepared to allocate to it the necessary staff, resources and political support. It will need to ensure that it is viewed as a strong moral imperative, of value and relevance in its own right, and not a marginal issue to be disregarded when other (vested) interests are at stake. The officer in charge must be willing to dedicate considerable energy and commitment to the task, and to be a strong advocate for the cause, promoting this throughout government and society more broadly.
This is not so much a legal problem as a political and administrative one: Relatively easy to overcome if the political support and commitment is present.
It should be noted that only legislation which is widely considered just and equitable can ultimately be enforceable and effective. Thus it would be advantageous to invite all stakeholders – who may be affected by the law in any way – to participate in consultations about this Act and any subsequent secondary legislation, [and codes of conduct and guidance]. The aim should be to provide all stakeholders with the opportunity to examine and discuss the legislation from the early stages of formulation, in order to eliminate any potential areas of conflict. Where feasible, consultations should include face-to-face meetings, as well as written representations, as this provides stakeholders with the opportunity to interact and gain an understanding of the (often competing) needs and interests of other groups of stakeholders.
There will be various categories of stakeholders and concerned parties which will need to be consulted by the legislative body right from the start of the decision-making process. These will include (but not be restricted to) the following:
Two alternative designations are suggested for a modern, comprehensive animal welfare law: either ‘Animal Welfare Act’ or ‘Animal Protection Act’. In principle, both the terms ‘animal protection’ and ‘animal welfare’ signify that animals are afforded protection under the law. However, ‘animal protection’ puts the main emphasis on the element of protection, i.e. defence against endangerment, violence and assaults (including cruel treatment and acts that cause pain or suffering); whereas ‘animal welfare’ also incorporates the concept of care, consideration and circumspection with regard to the individual animal. 'Animal welfare' is about ensuring that an animal is in a state of overall well-being, which is a condition of physical, mental and emotional harmony and includes the ability to live naturally and to meet all species-specific and ethological needs. Thus, in our view, ‘animal welfare’ is the more comprehensive and attentive definition, with ‘animal protection’ regarded as an integral element of ‘animal welfare’. Consequently, we feel the designation ‘Animal Welfare Act’ to be preferable as a more accurate, precise and suitable description (see Section 1 of the Model AWA). Alternatively, it would be considered absolutely acceptable to use the designation ‘Animal Welfare and Protection Act’.
Another consideration is that accustomed terminology will differ from country-to-country. In countries where the concept is relatively new, the term ‘animal welfare’ is more common, deriving from the OIE and/or scientific work in this field. In other countries, either the term ‘animal welfare’ or the term ‘animal protection’ may have already evolved in popular use. However, another reason we have used the designation ‘Animal Welfare Act’ is because we feel it is more widely used and better reflects the current international policy and scientific environment.
Clearly the designation ‘Prevention of Cruelty to Animals Act’ would be unsatisfactory and misleading for a modern, comprehensive law.
The legal target for a modern and progressive animal welfare law should be the regulation of all areas where humans have the potential to affect the lives or welfare of animals, ensuring their humane treatment and care. It should also cover the progressive development of a broader based humane ethic and ‘culture of caring’ in society.
To achieve this coverage, definitions are of utmost importance. Acts of commission, as well as omission, must be encompassed in the statutes. Also, a ‘duty of care’ has to be a prominent theme, reflecting the characteristics and requirements of individual animals.
Ideally, the Animal Welfare Act should, as a framework act, cover all aspects of animal welfare. In addition to general provisions covering all animals, this would include all major categories of animal issues:
It is important to include all aspects of animal welfare, even those which have been separately covered in the past (as is often the case with wildlife or stray management). This is because there must be a coherent and consistent approach to animal welfare across all sectors. The Model Animal Welfare Act has, therefore, established general guiding principles and rules (‘core obligations’) covering all areas of animal welfare.
The Animal Welfare Act will also vest the Ministry or Competent Authority with the powers to issue secondary legislation. This is particularly important for areas where specific animal welfare problems have been identified, or where abuse and infringements have been found.
In addition the Act will also warrant the Ministry or Competent Authority with the powers to enact supplementary codes of conduct and guidance to enable them to provide detailed guidance and interpretation for users and/or enforcement bodies, as necessary. This will give the relevant authorities the flexibility to meet new and emerging needs (for example, in response to new technologies which may affect animal welfare), and to provide any additional specialist input and advice considered necessary.
The powers to issue delegated legislation as well as supplementary provisions will not only cover specific areas of animal welfare concern, but also major areas of work needed to develop a broader based humane ethic and ‘culture of caring’ in society.
These would include
Ideally, this Act should supersede or take precedence over all other legislation with which it may conflict. However, particular care should be taken to ensure that: it provides for the introduction of higher level provisions in the future (for example, to meet international standards, and/or to upgrade animal welfare standards following scientific or ethical advances); does not supersede any laws or provisions which provide greater protection for animal welfare; and will not conflict with any existing constitutional provisions.
It is recommended that a review is carried out of all other Acts and laws involving animal issues, to ensure that there is conformity and a solid platform for a progressive approach. This review should identify all laws that require amendment and/or where provisions should be repealed and integrated into the Animal Welfare Act. Acts which may need revision, rather than combination, would include measures covering areas such as animal health and disease control (which may impact on animal welfare, but be directed at other specific purposes).
The structure and composition of animal welfare laws worldwide vary greatly, with diverse priorities, perspectives and approaches. As already addressed briefly in Section II, this present suggestion is based on the concept of a framework law which establishes the ethical basis and firm guiding principles which would underpin all subsequent subordinate or secondary legislation. The framework law should provide overall ‘guiding principles’ for animal welfare, and also identify core animal welfare issues which need to be regulated, establishing guiding principles for each of these issues. Then, it should supply the powers for the authorities to enact these principles in secondary legislation [and, as appropriate, ‘Welfare Codes’, standards and guidance].
It is recommended that detailed substantive provisions are dealt with in regulations, supplemented by ‘Welfare Codes’, standards and guidance whenever necessary. For this purpose no additional legislative measures are needed, as all these aforementioned aspects would be covered by the power directly delegated to the Ministry or Competent Authority respectively through the Animal Welfare Act itself.
It is essential that any ‘Welfare Codes’ and standards are developed in accordance with the Animal Welfare Act, and any breach of these is taken to be a breach of the subject Act. Thus it is imperative that any Welfare Codes and standards (or amendments to these) are disseminated and well publicised. It should be borne in mind that ‘Welfare Codes’ and standards may be developed and amended outside of parliamentary processes, and thus the use of these should be restricted to matters of clarification and detail, with regulations being used in preference. Guidance notes should be considered a more informal source of advice and interpretation, and not be used when any legally binding provisions are required or desired.
Within the law, the ethical values and guiding principles the Act is drawing upon should precede the general rules (or ‘core obligations’) concerning the welfare and protection of animals, i.e. the basic precepts of the human-animal elation. In turn, these general rules should precede the rules relating to the specific issues/areas of concern identified. Thus, there is a clear distinction between the establishment of underlying principles, fundamental provisions and specific statutory provisions.
In practice, the purpose of the Act, its ideology, scope, intent, objectives and definitions would be found in ‘Chapter 1: Preliminary Provisions’. This chapter would first and foremost contain the 'Title’, then the 'Objectives’ as well as the State’s/Government’s 'Support for Animal Welfare’, the 'Scope of Application’ and the 'Definitions’. This affords the opportunity to not only outline the law’s purpose and mission but to also highlight its relevance as well as its concrete significance within the legal system itself. The ‘Preliminary Provisions’ provide above all the foundation for the Act; and thus they also constitute the basis for all the ensuing provisions.
The second chapter, entitled: ‘Chapter 2: General Provisions’ would comprise the statutes which are linked to human conduct towards animals in general, and normally are with a few exceptions addressed to ‘everybody’ and not coupled with any further specific preconditions. These concern, in particular, certain completely unacceptable acts of cruelty which thus should be particularly emphasised/highlighted. They cover: ‘Prohibition of Cruelty to Animals’, ‘Prohibited Interventions Performed on Animals’, ‘Prohibition of Killing Animals’, ‘Prohibition of Passing on, Selling, Offering for Sale, Purchasing or Possessing Certain Animals (Doomed Animals)’ and ‘Obligation to Grant First Aid’.
The third chapter entitled: ‘Chapter 3: Keeping of Animals/Care of Animals’ would codify specific requirements which have to be fulfilled (as opposed to the more basic aspects of the human-animal relationship mentioned above). The scope of these requirements covers the care and protection of animals kept within a person’s sphere of influence, custody or control in order to meet the need to care for the welfare of the individual animal in this state of dependence. In this situation, the explicit ‘duty of care’ (for the owner, keeper or person in charge of the animal) and the ‘Five Freedoms’ are of utmost importance, given human ethical responsibilities (for details see Part 1, I. Introduction). Still, access into these statutes of Chapter 3 shall preferably be sought more with regard to the ‘principles of proper animal keeping’ and not so much via the virtue of ‘ownership’ or the feature of being a ‘person in charge of an animal’. Indeed, as perceptions of animals evolve over time, with increased emphasis on their intrinsic value and autonomy, the concept of ‘ownership’ of an animal becomes less ethical and acceptable, and human responsibilities for understanding and meeting animal needs as an act of ‘guardianship’ gain prominence.
Chapter 3 would be split into two distinct groups, ‘A. General Regulations’ and ‘B. Special Regulations’: The first group would determine the general or overall regulations to be observed for animals in human custody and care; and the latter would stipulate further parameters in the context of people’s conduct towards animals, i.e. keeping animals within the scope of business activities, transport of animals, killing/slaughter etc.
Chapter 4 would cover specific categories of animal use. This enables separate provisions to be delineated covering concrete areas of animal use, meaning these can be tailored to conditions prevailing in the particular sector.
Chapter 5 would be devoted to the ‘Enforcement and Execution Provisions’ of the Act. This would include aspects such as: enforcement/implementation structures and systems; powers; and the allocation of responsibilities (including the Competent Authority, enforcement responsibilities, and also animal welfare organisations and the Animal Welfare (and Ethics) Committee).
Chapter 6 would be dedicated to the ‘Penal and Final/Concluding Provisions’. This would include provisions covering both penal and administrative fines.
An ethically-based, comprehensive and future-orientated concept of animal welfare should be overarching, and cover all animals indiscriminately. However, as special consideration and care is afforded to the welfare of sentient non-human animals, and in the interests of effective and practical enforcement, the sanctions focus on sentient animals (which would, based on current scientific knowledge, encompass all vertebrates, birds, fish and many other creatures, including cephalopods and decapod crustaceans; and through the application of the precautionary principle, any other animal which appears to be sentient).
Some animal welfare laws incorporate aspects of punishment/sanctions directly into provisions detailing the requirements of the law (and any related offence), i.e. the consequences of the breach are explicitly specified directly following the provision outlining each potential breach of the law. At face value this might seem quite practical as regards the application of the law. However, this would be at the expense of the general clarity and accessibility of the Act in question. This is firstly because continuous repetitions would make the text lengthy and unwieldy; and secondly because it would prove difficult to make comparisons between the consequences of different infringements.
Thus, preference is given to an arrangement which gathers all the consequences of infringements in a separate section of the legislative text, which would cover a number of violations: This approach has the advantage of streamlining the law and facilitating assessment of the impacts of individual provisions.
A banding system has been suggested for the establishment of fines. This is preferred to the establishment of fines in given units of currency, which tends to result in the level of fines being eroded by inflation as they become outdated (often combined with the reluctance to review the Act to update these). The value of fine bandings can be established by regulation, making it possible to update fine levels across the board by a simple regulatory amendment to take account of inflationary pressures. This system has the advantage of keeping the same differential between the level of fines (between different Acts, as well as within the same Act); as well as being simple administratively.
Another aspect that was briefly mentioned under Part 1, II. Ethical Guiding Principles, Objectives and Targets, above, which should be addressed in more detail here:
To some extent relevant criminal offences will already exist in the country’s Penal or Criminal Code (as appropriate). To harmonise the provisions and to secure an identical approach one might want to consider either amending the Penal/Criminal Code accordingly, i.e. remove the criminal offences from the Penal/Criminal Code and add them to the Animal Welfare Act, or to redraft the latter to only deal with acts categorised as administrative offences.
However, in these cases discretion is needed, as the provisions of a new Animal Welfare Act should always be in addition to and not in lieu of any other laws protecting animals and animal welfare. Therefore certain penalty schemes shall be allowed to coexist in order to guard against weakening the position of animals and animal welfare in an already sophisticated legal system.
Certainly in cases where the country’s Penal/Criminal Code does not already cover relevant criminal offences against animals it is considered preferable to include criminal offences, along with administrative offences, in one dedicated Animal Welfare Act. This is because although inclusion in the Criminal Code/Penal Code might, at first sight, be considered a more effective deterrent, there are clear advantages in including all offences in one single body of law. Probably the most important of these is the clarity and accessibility of having one compact compendium of animal welfare law; which is readily accessible to a wide range of potential users. This would include government agencies, the legal profession and animal welfare organisations which will all have to apply the law, and animal users as well as owners, keepers and handlers who will have to conform to the law – and all of these will need to understand exactly what is expected of them in this context. Indeed, providing all relevant provisions in one Act at the same time gives clarity around those bodies that have enforcement powers under the Act. Also, consistency of approach is easier when all offences are consolidated in one law – including the option of giving fines as well as prison sentences for both infringements and crimes, depending on the relative severity of the breach of the law.
Finally, it has to be highlighted that any law concerning the welfare and protection of animals should be a set of rules that are not primarily directed at the authorities alone, but also (and predominantly) aimed at the public and other interested parties including (but not limited to) animal businesses and industries; and animal welfare organisations (see Part 1, II. Ethical Guiding Principles, Objectives and Targets, above for a fuller list of potential stakeholders). Therefore it should be comprehensive, and also straightforward, accessible and easily manageable for every citizen. Thus the approach used here has ensured that the Model Animal Welfare Act is clearly drafted, tightly structured, logically ordered, and well elaborated – beginning with a table of contents for user-friendly navigation.