Damian, Eilidh and Samantha were law student scholars, participating in the WS Society Summer Scholarship programme during August 2020. This article summarises their research and presentation
Introduction
The United Kingdom’s concern for animal welfare has a long and complex history reflected by the progressively slow evolution of legislation. It has been considered that animal welfare law is based on ‘moral a priori assumptions’, such that animal welfare issues are strongly influenced by context, cultural and social values and a society’s moral understanding of the matter. As public opinion on animal health and welfare develops the issue has been pushed into the limelight of the public domain.
“The Animal and Wildlife (Penalties, Protection and Powers) (Scotland) Act 2020 (“2020 Act”) is an advancement of the protection granted to animals brought about by the increasing concerns raised by animal welfare charities and society in light of the continued occurrence of animal and wildlife offences.”
Before the 2020 Act, a few animal cruelty cases highlighted this growing social and political interest in animal welfare, however, the legal sanctions available to the courts at the time were felt to have been inadequate. The 2020 Act amends a lot of the 2006 Act in relation to fixed penalties, protective measures and taking possession of animals. It also amends various wildlife legislation. The 2020 Act was introduced, with two purposes:
1. To make provisions for existing animal and wildlife offences, including how these are dealt with, prosecuted or considered in courts; and
2. To provide authorised persons additional powers to deal with an animal taken into possession on welfare grounds, regardless of whether an offence has taken place.
Wild Animal Welfare
Scotland is known worldwide for its green landscapes and wildlife and wild animals are a key component to enriching this diverse ecosystem. Due to the very nature of wild animals these species have previously been considered as a part of wildlife not under ‘direct’ human control, thus taking away from the fact that they are sentient creatures which should be protected from cruel and inhumane treatment, just as domesticated and captive animals are protected from by law.
For centuries farmers and estate owners have adopted mitigation methods that were justified for wildlife management purposes and the welfare of wild animals was not of principal concern. As a result, wild animal welfare law has fortuitously evolved from conservation and wildlife legislation such as the Wildlife and Countryside Act 1981. Although wild species’ welfare is not comprehensively protected under such statutes, provisions are in place to address wild animal welfare issues. For example, section 9(1) of the 1981 Act makes it an offence to intentionally kill, injure or take any wild animal protected under Schedule 5 of the Act. Additionally, section 11(1)(a) imposes a ban on the use of self-locking snares, and so taking into account animal welfare given the unimaginable suffering that asphyxiation could cause a target or non-target species. Furthermore, section 13(3) of the Wildlife and Natural Environment (Scotland) Act 2011 amends the 1981 Act, imposing a duty on snare operators to inspect it ‘at least once every day at intervals of no more than 24 hours’ to further the protection of wild animal welfare.
New Penalties
The 2020 Act primarily focuses on amending 6 pieces of legislation to increase the penalties applicable to wildlife offences (ss 7-13). The severity of wildlife offences will now be reflected in the severity of the penalties. Fines for particular offences have increased from level 4 or 5 on the standard scale to £40,000 and imprisonment periods have increased from six months to twelve months, or up to five years for the most serious wildlife crimes.
Such penalties aim to create a sentencing deterrent for possible perpetrators of wildlife offences. Whilst this is a possibility - as the Act is not fully enforced it is yet - it to be determined whether this increase in penalties will reduce wildlife crimes in practice. We agree with the Law Society of Scotland that there is an urgent need to introduce sentencing guidelines to evaluate culpability and improve society’s understanding of the disposition of wildlife offences in order for the Act to be effective as a deterrent. It is disheartening to know that sentencing guidelines are unlikely to be created prior to the end of the business period in 2021.
Protection of Species and Licensing
The Beaver and the Hare
The 2020 Act aims to increase protection for wild animals from indiscriminate injury or death. A notable improvement for protection granted to terrestrial animals is the inclusion of mountain hares to the list of protected species under Schedule 5 of the 1981 Act pursuant to section 18(3) of the 2020 Act. This provision has been commended by OneKind as a ‘triumph’ to address the indiscriminate killing of this species which has previously resulted in the death of 26,000 mountain hares a year in Scotland.
“There is no doubt that this protection is a step in the right direction for the welfare of mountain hares by reducing wildlife management mitigation methods to those permitted by licence.
However, a licence to kill is still just as deadly for an animal even if permitted by law.”
This raises the question as to whether a provision allowing a licence to kill can truly be in favour of individual wild animal welfare.
In 2019, beavers received status as a European Protected Species of Animals and are protected by Scottish Law. Shooting such animals is only permitted by a licence granted by NatureScot. However, in this same year it was recorded that a fifth of the beaver population were shot under licence.
The 2020 Act may bring an end to indiscriminate killing of mountain hares, but it is to be determined if this further protection paired with more serious penalties for wildlife offences will ensure that a licence to kill will be conducted with the welfare of the animal in mind. We urge further discussions on introducing further preventive measures to protect wild animals’ welfare.
Seals
The 2020 Act intend to further protect terrestrial animals and other marine life. Section 14(2)(a) of the 2020 Act repeals s110(1)(f) and (g) of the Marine (Scotland) Act 2010 in order to reduce the purposes which would allow for a seal to be killed under licence. This provision removes the justification to protect the health and welfare of farmed fish and the need to prevent serious damage to fisheries or fish farms - in most circumstances seal shooting occurs on fish farms. It was also introduced to satisfy the US Marine Mammal Protection Act requisite that no fish could be imported from Scotland unless the welfare of marine species is protected.
OneKind has voiced concerns that the continuation of licences for the repealed purposes until 31 January 2021 could contribute to an increase in seal shooting over the next few months. This is particularly concerning given the upward trend of seal killings in 2020 compared to last year. Libby Anderson has stated that an aim of OneKind is to ensure that a ban on seal killing becomes ‘permanent, comprehensive and watertight’ in a provision and the 2020 Act does not introduce such a measure.
Farm Animal Welfare
Two recent cases, read in light of the new provisions, can illustrate the improvements under the 2020 Act for farm animals in Scotland.
In the first case, East Lothian Council v Martin ([2015] CSIH 13), the owner of a herd of pigs and a flock of hens left their animals unattended. The local council then took the pigs and hens into their care and sought permission from the court to sell the animals. The owner opposed the order and the case went up to the Court of Session, dragging on for almost a year, while the cost of accommodation to the local council was racking up. Parliament held discussions about striking the right balance between the right to private property and the need to protect animals. The 2020 Act strikes a good balance as they reduce costs by allowing the authorised persons to take action sooner.
The second case, McLeod v Noble (2018 S.L.T. (Sh Ct) 227), a pony was stabled in the living room of the owner for two years, before being removed into the care of a local riding school, at the expense of the local council. This amounted to over £5000. Under the 2020 Act, again, the cost of keeping the animal in temporary accommodation, while waiting for a court decision, would be significantly reduced. What is interesting about this case is the test used by the court to determine if possession of the animal should be given to an authorised person. The possibility that the animal would suffer and inappropriateness of the living conditions, were sufficient to transfer possession. The court acknowledged that the owner cared deeply for the pony and did her best to look after it, however, the welfare of the animal came foremost.
It has been suggested that 2020 Act does not go farm enough in protection of farm animals. In the cattle industry, many farms are adopting the ‘zero graze’ practice, which means that cattle are kept indoors all year around, causing significant health problems for the animals. Chickens face similar problems. Around half of the hens in the UK are kept in ‘enriched cages’, while breeding methods cause painful leg disorders, heart, and lung problems. In the pig industry, farrowing crates inflict pain and are used for approximately 60% of the sows in the UK.
As a priority solution, systemic change is recommended, which can be achieved by either market influence or through legal change. Market influence, in the form of consumer pressure can incentivise farmers to adopt new, more humane practices. However, rather than relying on market influence, change could be achieved through legislation. If we want to prevent the movement of cattle from pastures to year-round indoor grazing, campaigning for legal change, is more likely to be effective than relying on the market influence of consumers.
Considering these structural problems with farming, it is clear there are failings in the 2020 Act. While the UK, as a whole, is doing well at protecting animals in captivity and companion animals, compared to other countries it has been ranked low in relation to the protection of animals used in farming.
Animal’s Used for Testing Welfare
When considering what the 2020 Act does for improving animal welfare it is useful to make a comparison between how we protect the three significant categories of wild, domestic and farm animals but have no such regard for animals used in scientific testing – which is another short falling of the Act.
While animal welfare is a devolved issue, there is no Scottish provision for governing the welfare of animals used for testing. This is devolved, under the Animals in Scientific Procedures Act 1986 and the adoption of the 3Rs principle. The authors believe there is a disparity between the ways in which domestic animals are treated against lab animals.
A case heard in 2015, concerned a man who was charged with two separate offences under the 2006 Act for both negligence and abuse of animals in his care. The accused bred rats and mice to feed to his reptiles and at worst had over 130 rodents at one time. Being kept in poor conditions left many of the animals deformed and paralysed and the rodents had to be euthanised to prevent any further suffering. The Defendant in this case was prosecuted for breeding rodents and keeping them in a way which compromised their welfare. While the 2020 Act provides provision to fine and sentence this sort of animal cruelty, we see similar activities carried out every day in Scottish laboratories where rats and mice are bred and often ending up paralysed and deformed like the animals in the Riddle case.
While scientists and supporters of animal testing may argue that a rat or mouse in a lab does not suffer the way Riddle made those in his care suffer, the statistics show that only 11% of vermin used in scientific testing suffer sub-threshold pain, thus suggesting 89% experienced suffering ranging from moderate to severe to non-recovery. This begs the question, why does the value of an animal change dependent on whether they are a domestic pet or a laboratory animal? As famously stated by Webster in 1994, a rat is a rat whether we define it as vermin or as a pet.
Many may be are under the belief that Scotland is not so much involved in the world of animal testing. However, the author’s found it surprising that Edinburgh University has for many years topped the charts for being the facility to test the most animals per year in the UK: In 2018 averaging testing on 660 animals per day.
Animal testing is more relevant than ever due to the urgent need for a COVID-19 vaccine.
The way in which scientists have dealt with vaccine testing in relation to COVID-19 has broken the significant liner pattern. A traditional full safety vaccine testing package would have included 2 years’ worth of animal testing in order to produce a product safe to test of humans. However, the urgency of the development of a COVID-19 vaccine has led to a number of trials have opted to test on both humans and animals at the same time.
A trial conducted in Oxford bypassed the traditional way of testing on animals entirely and went straight onto human trials. Prioritising human first approaches in the search for a COVID-19 vaccine sets a powerful precedent that will hopefully lead to alternative methods being used over the historically preferred animal testing; An idea that is not radical considering the growing developments in stem cell, silico models and other alternatives.
Final Remarks
Rural Affairs Minister Mairi Gougeon has stated that 'this [Act] is an important milestone in Scotland’s long tradition of protecting our animals and wildlife' and the Scottish SPCA has considered the Act as a 'momentous' decision of the Scottish Parliament to revolutionise animal welfare. However, one omission from the 2020 Act is the idea of animal sentience e.g. that animals have the ability to feel, perceive or experience subjectively. This is inferred in the 2020 Act but not explicitly outlined. This is surprising considering it was one of the most noticeable omissions from the Animal Welfare Act 2006, for which it was noticeably criticised.
Reform should not stop with the 2020 Act and the failings in the Act should encourage the Scottish government to review the situation again. We look forward to seeing the advancements the Act will hopefully make for animal welfare when it is fully in force.