Guidance on the Animal Welfare Sections
Definition of "animal" - Section 16 of the Act
"Animals" are defined as vertebrates other than man. The vertebrate family includes all creatures which are mammals, birds, reptiles, amphibians and fish. Invertebrates such as insects, shellfish, crustaceans and cephalopods are not "animals" for the purpose of this part of the Act. It is possible, however, for this definition to be amended by the Scottish Ministers, if scientific evidence shows that other creatures are able to experience pain or suffering. The provisions of Part 2 of the Act do not apply to an animal whilst it is in its foetal or embryonic form (although this too can be changed).
Protected animals and responsibility for animals - Sections 17 and 18 of the act
Having established a definition for "animal" the Act then defines "protected animals". For an animal to be classed as a "protected animal" it needs to satisfy just one of the following conditions:
- it is of a kind commonly domesticated in the British Islands (animals that are of a kind commonly domesticated in the British Islands include feral domestic animals such cats, sheep, goats and ponies)
- it is under the control of man on a temporary basis (as, for example, where an animal is caught in a trap set by man; or where a wild bird is being ringed by an ornithologist) or on a permanent basis (as, for example in the case of farmed deer or ostriches, or penguins kept in a zoo)
- it is not living in a wild state (as, for example, where a parrot or non-native snake or reptile escapes from captivity and, not being native to the British Islands, cannot be said to be living in a wild state even though it is living in the wild)
"Protected animals" include the kinds of animals whose collective behaviour, life cycle, or physiology has been altered as a result of their breeding and living conditions being under human control for multiple generations. Livestock, poultry, horses, cats and dogs are all protected animals whether they are in captivity or living wild as "feral" animals. Thus feral cats, sheep, goats or ponies are "protected animals" for the purpose of the Act. Other animals living in the wild which have not had their behaviour, life cycle or physiology altered by being under human control, such as pheasants or deer, are not classed as protected animals. When man has made an animal dependent on him, then the animal should continue to be protected. Wild rabbits, mice and rats are not protected animals unless they are under the control of man as they are not of a "kind" commonly domesticated in the British Islands. The domestic rabbit, mouse and rat is quite different to the wild kind, and the fact that some kinds of animals can be domesticated, does not mean that all such animals are then "protected". The British Islands means the United Kingdom, the Channel Islands and the Isle of Man.
Farmed deer are protected animals as they are under the control of man. However, wild deer are not protected animals, even where the land manager provides supplementary food or fodder for them nor is a farmed deer which has escaped from the farm and is living in a wild state. If, however, deer are managed in such a way that the land available to them is restricted to such an extent that they cannot live in a wild state, then they must be considered to be under the control of man and therefore are "protected" animals. The situation is similar for game birds raised for sport shooting. Whilst the birds are under the control of man and kept in cages or pens, they are "protected", but when released into the wild, they cease to be protected animals as they are not animals commonly domesticated in the British Islands, nor are they under the control of man.
The welfare of animals which are not "protected animals" for the purposes of this Act is covered by other legislation such as the Wildlife and Countryside Act 1981 and the Wild Mammals Protection Act 1996.
The welfare provisions of the new Act distinguish between the duties owed towards an animal by "the man in the street" and by a person who is responsible for the animal. Naturally, the duties of a person responsible for the animal are greater.
Responsibility for an animal is only intended to arise where a person can be said to have assumed responsibility for its day to day care, or for a specific purpose, or by virtue of owning it. The owner is always regarded as having a responsibility for an animal. But that responsibility can be shared by another person who is in charge of the animal. This applies whether the person owns the animal or is in charge of the animal on a temporary or permanent basis. For example, if a horse were stabled at a livery yard, both the horse owner and the operator of the livery yard would have responsibility for the welfare of the horse. The owner would have a responsibility to ensure that the livery yard was a suitable place to leave the horse. The livery yard would have a responsibility for the day to day welfare of the horse. Where a DIY livery arrangement had been made, the livery yard operator would not normally be expected to have a responsibility for the day to day welfare of the animal. However, he or she would have a responsibility for the welfare of a horse if the horse owner or the person contracted to take care of the animal failed to attend to it.
A further example of shared responsibility is where a livestock owner employs a livestock manager. The owner has responsibility to ensure that the person employed is competent and knowledgeable about the livestock under his or her control.
If an animal is abandoned, the person responsible for it continues to be responsible for the animal even after it has been abandoned. Taking care of a stray cat has caused problems in the past. Where a person has given a stray cat a home and is feeding it so that the animal becomes dependent on that person, it could be considered to be abandonment if that person were to remove the cat from their home (if, for example, it required costly veterinary treatment) no matter in what way they had become responsible for the cat.
Where a person under 16 years of age is responsible for an animal, the person who has care and control of that young person is also responsible for the animal. This seeks to ensure that an adult can normally be identified as a person responsible for an animal.