Animal Health and Welfare (Scotland) Act 2006: guidance

Guidance on the Promotion of Welfare

Ensuring welfare of animals - Section 24

Where someone is responsible for an animal, they have a positive duty to do all that is reasonable in all the circumstances to ensure that needs of the animal are met to the extent required by good practice. The vast majority of pet owners will be doing all that they need to do to comply with this requirement and it is not intended to criminalise somebody who is unable to take his or her dog for a walk one day.

Codes of practice for many species of livestock are available and although issued under the Agriculture (Miscellaneous Provisions) Act 1968 are, nevertheless, still in force. These codes give practical advice on how to take care of animals, and should be used when considering whether an animal keeper is meeting his or her responsibility to meet the welfare needs of an animal. Codes for other animals, including companion animals, will be issued but it will be some time before they are available.

In considering whether a person has complied with these requirements, the court is required to take into account all relevant circumstances. However there are certain specific matters which the court must take into consideration when deciding whether a person has committed an offence. These are "any lawful purpose for which the animal is kept" and "any lawful activity undertaken in relation to the animal". This provision recognises that some lawful practices may prevent or hinder a person from ensuring that certain welfare needs are met, and requires the court to take that into account when considering what is reasonable in the circumstances of each case. For example, a dog used for search and rescue purposes may be placed in a dangerous situation but such an activity would not give rise to an offence.

Anyone who has care of an animal must provide for its needs. These needs include:

• the need for a suitable environment (including appropriate accommodation or shelter and a comfortable resting area)
• a suitable diet, which should be adequate to maintain full health and vigour through every phase of like
• the ability to exhibit normal behaviour, this could be met by providing sufficient space, appropriate facilities as well as the company of the animal's own kind
• the need to be protected from suffering, injury and disease. Animals should be protected from fear and distress by providing conditions which avoid mental suffering. Problems should be diagnosed quickly and appropriate treatment should be provided for sick or injured animals. Where necessary this treatment should be by a veterinary surgeon

These are not exhaustive, but are examples of an animal's needs which the court can take into consideration when deciding whether an offence has been committed.

Like the section on "Unnecessary suffering" the Act allows the destruction of an animal in an appropriate and humane manner. As described in paragraph 21, that must not cause suffering over and above that necessarily caused by appropriate and humane destruction of the animal. It in vast majority of cases we would expect an animal to be destroyed by a qualified and trained person, usually a vet.

Care notices - Section 25

Inspectors appointed or authorised under the Act, such as local authority animal health and welfare inspectors, the State Veterinary Service and inspectors from the Scottish SPCA, have the discretion to serve care notices. The notices can be served on a person if it appears to the inspector that a person responsible for an animal is failing to secure its welfare in such a way that may constitute an offence. This provision can be used on occasions when an inspector does not wish to pursue an immediate prosecution for a breach of the welfare offence. The ability to issue a care notice provides the opportunity to allow the person responsible for the animal to rectify the situation within a specified period of time. It is an offence to fail to comply with the notice, unless there is a reasonable excuse.

There is no requirement for an inspector to issue a care notice. It is, however, a valuable option and one which could be used in a number of cases where the welfare provisions are not being fully met but the animal is not suffering or is not likely to suffer for the duration of the notice. A care notice can only be issued to rectify a failure to meet the requirements of the need to secure welfare, it cannot be issued where unnecessary suffering is suspected.

A care notice must specify the date on which the failure came to the notice of the inspector, the nature of the failure, and the reason that it appears to the inspector why it constitutes an offence. The compliance period of the notice is flexible. The inspector could specify a short time period (e.g. 24 hours) for urgent action to be taken or a longer period (e.g. 4 weeks) for a longer term solution. An inspector can, at his or her discretion, extend the compliance period.

Once a care notice has been served it will not be possible to prosecute the person who has been served with the notice for the offence itself or for failure to comply with the care notice until the compliance period (set out in the care notice) has expired. However, if after issuing a care notice the situation were to deteriorate and the animal was in danger of suffering, it would be possible for the inspector to take possession of the animal. In such circumstances it may be possible to prosecute for an offence under the unnecessary suffering provisions of the Act.

If the person complies with the care notice no proceedings for the offence specified in the care notice may be taken for the period between the offence coming to the attention of the inspector and the end of the compliance period. However, if the offence were to be repeated after the compliance period, the inspector could issue another care notice or prepare a case for prosecution.

Secondary legislation - Sections 26 and 27

The Act gives Scottish Ministers the power to make regulations to secure the welfare of animals, for which a person is responsible, and their progeny. The inclusion of progeny in this section enables regulations to be made governing animal breeding to protect the progeny as well as the parent. The Act provides a non-exhaustive list of the type of provision which may be made in regulations such as prescribing general or specific requirements or prohibitions, provision for enforcement, provision in relation to offences and post conviction orders. A non-exhaustive list of the matters to which requirements and prohibitions may relate is provided as are examples of the issues which may be addressed in such regulations including the prevention of suffering, the breeding and rearing of animals and the transportation of animals.

Scottish Ministers are also able to make regulations which will require certain activities involving animals to be licensing or registered. These regulations can apply to activities where a person is responsible for animals for the purposes of securing the welfare of animals. It is intended that certain activities involving animals for which a person is responsible (such as pet dealing, pet shops, animal sanctuaries, animal boarding establishments, dog breeding, livery yards and riding establishments) will be made subject to a requirement in secondary legislation that the person carrying out the activity be either licensed by, or registered with, a local authority.

Registration will be used in cases where it is necessary for the enforcement authority to know of the existence and location of organisations or individuals who are keeping specific animals or carrying out particular activities. Registration may be required where it is considered that the additional controls and costs of a licensing regime are either unnecessary or would be unduly burdensome.

The Act sets out the types of provision that regulations for both licensing and registration may include: enforcement; the creation of offences; the imposition of penalties; post-conviction orders; the conferring of powers on specified individuals (such as powers of entry, search, inspection and seizure in connection with breaches and suspected breaches of provisions of the regulations); the creation of an offence of obstructing a person who is exercising their powers under this section; and for exemptions from or qualifications to an offence under the regulations.

All proposes for regulations must be consulted on before the regulations are presented to Parliament for their approval. Normally for the regulations to be published in draft and issued to interested persons and organisations. It will be usual for the consultation period to last 12 weeks.

Prohibition on Keeping Certain Animals - Section 28

This section gives the Scottish Ministers power to make regulations to prohibit the keeping of certain types of animals at domestic and other premises. The main purpose of this section is to give the Ministers the power to prohibit the private keeping of certain animals. However, regulations can only be made under this section for animal welfare purposes. It will be necessary for Scottish Ministers to have a consultation on proposals for regulations with interested bodies and organisations before the regulations are presented to Parliament.

"Domestic premises" are defined as premises or a part of premises used exclusively as a dwelling house including any land or structure belonging to or enjoyed with or adjacent to the house. Scottish Ministers can, however, define the meaning of "other premises" in the regulations. The provision to add "other premises" as places where the keeping of certain animals can be prohibited in any premises which are not suitable. Without this additional provision it might be possible to prohibit the keeping of a primate in a house but not, for example, in an office.

Zoos, defined as establishments licensed under the Zoo Licensing Act 1981 have been specifically exempted from this section. However, zoos are not exempt from the need to ensure that the needs of an animal are met under the welfare section of the Act.

The Act sets out examples of the types of provision which may be included in the subsequent regulations. These include provision for enforcement, offences, penalties, post-conviction orders, the conferring of powers on specified individuals (such as powers of entry, search, inspection, and seizure) and for provision for exemptions or exceptions to the regulations. Scottish Ministers must have regard to whether adequate care is capable of being made and likely to be made for animals at the type of premises concerned before prohibiting the keeping of animals on such premises.

Abandonment - Section 29

This Act contains a specific offence of abandonment. The Act provides that a person commits this offence in two ways, either permanent or temporary abandonment:

• the abandonment of an animal for which they are responsible in circumstances likely to cause it unnecessary suffering. This provision is designed to deal with the situation where an animal, such as a cat, dog or horse, is taken it to a place and left. Examples have included dogs tied to doorways and horses left on road side verges
• leaving an animal unattended for which a person is responsible and failing to make adequate provision for its welfare. This provision is intended to cover a situation where an animal is not abandoned on a permanent basis but is left without adequate provision being made for its welfare

No time periods have been specified after which it can be assumed that an animal has been abandoned. We believe that this will vary according to the individual circumstances of each case and from animal to animal. This section gives a non-exhaustive list of the factors that the court is to have regard to when considering whether adequate provision has been made for the animal. This includes the kind of animal, its age, state of health, the length of time for which it has been left and its requirements for food and water, and shelter and warmth. An adult cat with access to a cat flap, water and dried cat food could be left for a longer period than a young puppy, before the animal could be considered to be abandoned. An abandoned animal does not need to have suffered for an offence to have been committed. The offence would have been committed if the animal was abandoned in circumstances which were likely to cause it unnecessary suffering.

When introducing or re-introducing animals to the wild, care needs to be taken to ensure that they are able to survive and will not be in danger of suffering. This means that rescued injured animals should not be released until fit enough to fend for themselves and that animals being introduced to the wild for the first time such as pheasants or fish should be sufficiently mature to have a reasonable chance of survival. In the case of pheasants, it may be necessary for supplementary food to be provided for a short period until the birds learn to feed themselves.

Sale of animals to children - Section 30

This section raises the age at which a young person can legally buy an animal. The offence is to sell an animal to a person under 16 years. It is not an offence for someone under 16 to buy an animal. It is a defence if the seller believed that the purchaser was 16 or over and was either shown evidence of the purchaser's age or had no reasonable cause to suspect from the purchaser's appearance that they were under 16.

Whilst a young person under 16 cannot legally buy an animal, it is not an offence for that person to own an animal, including being the "registered" owner or keeper of the animal. This will allow young people under 16 to continue to show or exhibit animals in their name. However, the legal responsibility for the welfare of the animal does not rest with the young person, but rests with the adult who has the care and control of that young person, or the adult with whom the young person resides.

Offering animals as prizes - Section 31

This section creates an offence for a person to offer or give another person an animal as a prize, the only exception being where the "prize" is given within a family context. Examples of offences include to offer or give goldfish as prizes at funfairs, raffle livestock at agriculture shows, organise newspaper or magazine competitions where the prize is a horse or pony, or organise any competition at a fete or club where an animal is the prize. If the raffle prize is an egg, as is sometimes the case at pigeon or birds shows, that would not be an offence, as an egg is an animal in its embryonic form, and thus not an "animal" under the definition of animal in the Act.

The exception to this offence is where the "prize" is given within a family context. This will allow a parent, guardian or other family member to give a dog, or other pet, to a child as a prize or reward for success in exams or at a family event. Such action would not constitute an offence.