Examining the Implications of the Animals (Low-Welfare Activities Abroad) Act 2023

On 18 September 2023, the Animals (Low-Welfare Activities Abroad) Act 2023 (the Act) received Royal Assent, following almost eighteen months of debate and revision before Parliament. This week Guest Writer Saskia Sinha will explore what we can expect from this new piece of legislation, and how might it change the broader landscape of tourism and animal law in the United Kingdom.

The Issue

The collective efforts of legislators, research groups and animal welfare charities have seen renewed executive focus on animal welfare issues in recent years. This drive culminated in the UK Government publishing its ‘Action Plan for Animal Welfare’ (APAW) in 2021. Several campaigns have highlighted the problem of animal confinement and abuse that takes place abroad for the purpose of tourist entertainment and this new Act now addresses such practices.

Oxford University’s Wildlife Conservation Research Unit and World Animal Protection (WAP) in a joint study on ‘wildlife tourism’ addressed the magnitude of the problem. The report found that wildlife tourism may account for “20-40% of global tourism,” with animal encounters attracting between 3.6 and 6 million tourists each year . The EU Centre for Promotion of Imports (CBI) added that in the aftermath of the COVID-19 pandemic the wildlife tourism market was “expected to recover faster than others,” with the United Kingdom named as one of the “largest European source countries” for wildlife tourism.

While the CBI exclusively promotes ‘sustainable conservation-motivated’ ventures abroad, not all animal experiences are of equal standards. Unfortunately, according to a TripAdvisor investigation “The findings showed 80 per cent of people who left reviews on the travel site were unaware of the potential for animal cruelty at the attraction venues.”

Key Provisions Explained

Scope of the Act

As the UK Parliament does not possess the jurisdiction to directly legislate against the extra-territorial actions of traders, the Act instead introduces a rather unique indirect approach. Under these new provisions, the “sale, offering for sale, or advertisement in England and Northern Ireland of low-welfare animal activities which take place abroad,” is entirely prohibited (per sections 1 and 2).

It is important to note, this Act only applies to England or Northern Ireland but it is hoped the devolved governments of Scotland and Wales will introduce similar legislation.

Section 1 deems it an offence for a person, in a relevant part of the United Kingdom (i.e. England or Northern Ireland), to sell, offer or arranges to sell any right to observe or participate in any activities involving an animal; outside of the United Kingdom; and of a description falling under the “activity regulations” made by “the appropriate national authority.” The ambit of Section 1 is wider than it initially appears. It captures individuals who sell, offer to sell (including invitations to treat), or arrange to sell such rights to domestic consumers.

There are several key terms to unpack within section 1(1)(c). In England the named “national authority” is the Secretary of State. For Northern Ireland it is the Department of Agriculture, Environment and Rural Affairs, or the Secretary of State acting with the consent of that Department.

Section 2(1) reproduces the conditions of section 1(1), but in relation to advertisements with the purpose or effect of promoting those conditions. The subsequent subsections (3) to (4) outline specific operational roles that stand to incur liability for contributing to the offending advertisement, namely publishers, printers, and distributors. Individuals found to have caused such publishing, printing, or distribution, are also liable under the Act.

Low Welfare

The test for determining whether the conditions an animal is kept in or the treatment it is subjected to during a specified activity would be classed as ‘low-welfare,’ is signposted by section 1(3) of the Act. Subsection (3) refers to criteria listed under “appropriate national legislation” as guiding authority on acceptable treatment conditions for animals. In relation to England, this is the Animal Welfare Act 2006 and in Northern Ireland, the Welfare of Animals Act (Northern Ireland) 2011.

Under these Acts, cruelty to animals - for example causing unnecessary suffering, mutilation, poisoning, or drugging an animal - is prohibited (ss.4-8 of both Acts). Conditions necessary to maintain animal welfare standards are also outlined, including provision of a suitable environment, diet, housing, allowance for normal behavior patterns and freedom from pain, suffering, injury, and disease (s.9(2) of both Acts).

Penalties

Section 3(1)(a) of the Act provides that an individual found to be acting contrary to sections 1 and 2 in England commits an offence, and “is liable on summary conviction […] to a fine.” o No specific fine level is indicated.

On application in Northern Ireland, fines are capped at level 5, or £5,000, which represents the maximum penalty on the standard summary convictions scale (section 3(1)(b)).

Defences

There are some defences available under the Act, most notably absolving ‘innocent’ third-party printers and distributors of wrongdoing. If the accused party can prove that they “did not know, and had no reason to suspect, that the advertisement would be published” in a relevant part of the United Kingdom, they will be excluded from liability (section 2(8)). Additionally, if an advertisement is enclosed in a publication “printed outside the United Kingdom and whose principal market” does not include a relevant part of the United Kingdom, the involved parties are, by section 2(5), outside the scope of sections 1 and 2. Mandatory penalty notices also give the accused an opportunity to pay a typically much smaller amount up-front to avoid litigation.

Potential Impact and Legislative Omissions

There are concerns that activities are not explicitly banned and instead you will need to lobby for each activity to be banned.

Similarly whilst some practices do not exist in the UK, they are not expressly banned under welfare legislation, which may in turn create a loophole. For example, the UK’s last dolphinarium ceased operations in 1993, due to high standards being required, yet it was not expressly banned under the Animal Welfare Act; however, groups led by World Animal Protection argue that it is in fact implicitly banned under that same act due to the fact a suitable environment can never be met for dolphins in captivity.

World Animal Protection places the number of dolphins suffering for entertainment worldwide at 3,000 and emphasises that captive tanks are 200,000 times smaller than a dolphin’s natural habitat.

The UK Government website posits the passing of the Animals (Low Welfare Activities Abroad) Act into law as confirmation of “the UK’s position as a world leader in animal welfare standards both at home and abroad.” If actively applied and enforced, the powers this Act delegates to relevant domestic authorities could certainly have significant global implications. Isolating international wildlife tourism traders from a large portion of their target audience will place a strain on their ability to continue operations and this is undoubtedly an intended outcome of the Act.

Getting Advice

This blog post is not legal advice. For more information on the services Advocates for Animals offers please contact info@advocates-for-animals.com