Toward a life worth living: The challenges and opportunities of the ‘welfare offence’
When it was passed, the Animal Welfare Act 2006 (‘the AWA’) was a landmark piece of legislation. It promised the fulfillment of dual goals, not only the prevention of harm - a thread which winds back to the very earliest days of animal protection law, but also the promotion of animals’ welfare.
History of Welfare Protection
Legal requirements to meet animals’ needs, now contained in section 9 of the AWA, can be traced back to the report of the 1965 Technical Committee to enquire into the Welfare of Animals kept under Intensive Livestock Husbandry Systems, known as the ‘Brambell Report’. The Brambell Report followed a public outcry about the conditions of intensive animal agriculture exposed in Ruth Harrison’s 1964 book ‘Animal Machines’, and its findings marked a significant turning point in the law’s approach to animals.
While the report did not use the term ‘sentient’, it described the sentient qualities of farmed animals - such as their ability to feel fear and distress - for the first time in a government publication. Recognising these qualities, the report set out the needs of animals in terms of required freedoms, describing the need for animals to be provided ‘the freedom to stand up; lie down; turn around; groom themselves; and stretch their limbs’.
The report led to the enactment of legislation such as the Agriculture (Miscellaneous Provisions) Act 1968, the promulgation of regulations, and the publication of codes of practice which sought to enhance the protection of farmed animal welfare by securing minimum conditions, placing obligation on farmers to meet those conditions. The report also led to the establishment of the Farm Animal Welfare Council (‘FAWC’) in 1979.
The Five Freedoms
The Brambell Report’s formulation of ‘freedoms’ was further developed by the FAWC into the ‘five freedoms’, which now form the framework of the legislative understanding of animal welfare, both in the UK and across the world. These include:
Freedom from thirst, hunger and malnutrition;
Freedom from discomfort;
Freedom from pain, injury and disease; and
Freedom to express normal behaviour;
Freedom from fear and distress.
The FAWC has recognised that the ultimate aspiration of the legislative framework is to secure a life worth living, and ultimately, a good life for farmed animals.
The ‘Welfare Offence’
The AWA broadened and strengthened requirements to provide for animals’ needs. Section 9 makes it an offence for those responsible for an animal to not take reasonable steps to ensure that their needs were met, to the extent required by good practice.
Section 9(2) of the AWA sets out the needs of an animal. Following the ‘five freedoms’ model, it includes the need for a suitable environment and diet, the need to be able to exhibit normal behaviour patterns, any need an animal has to be housed with or apart from other animals, and the need to be protected from pain, suffering, injury and disease.
The assessment of whether a person has failed to provide for the needs of an animal is objective; it requires a Court to assess the steps that a reasonable person would have taken in the circumstances. The requirements of ‘good practice’ are species specific and, for farmed animals, are set out in codes of practice made under the AWA.
When establishing whether a person has committed an offence, the Court can have regard to certain factors set out at section 9(3), which provide that the Court is able to consider ‘any lawful purpose for which an animal is kept’ and (b) ‘any lawful activity undertaken in relation to the animal’ in determining whether needs are met to the extent required by good practice. These section 9(3) considerations have been subject to critique, seen to minimise the real level of protection afforded by the section especially to working and farmed animals. However, just because an animal is being kept for a certain purpose does not mean that that purpose will justify not meeting an animals’ needs; these considerations are not a complete defence.
Section 9 as an opportunity for progress
One critique given to Section 9’s requirements has been that it places too much emphasis on avoiding negative experiences, rather than promoting positive ones. However, when interpreted properly, section 9 holds the potential to mandate significant improvements in the current standards of animal care. In fact, this potential has already been demonstrated: when the UK government banned foie gras, it did so under the prohibition of unnecessary suffering and section 9’s requirement to provide a suitable diet.
This progress could be replicated elsewhere. For example, intensive farming practices often curtail animals’ expression of normal behavioural patterns to nest, forage and explore. This is particularly the case when cage systems are used, such as in the case of chickens or pigs. Robust interpretation, with a view to actually promoting welfare, has the power to make a tangible change in the lives of millions of farmed animals across the UK.
We are calling on the government to press the reset button and ensure the law properly protects the interests of animals in the way Parliament intended and the way the public expects. It is time to put animals back into the Animal Welfare Act.
