Ariane Aquilina Five Freedoms, Five Domains: An Analysis of the Implementation, or Lack thereof, of the Five Freedoms and the Five Domains in the Maltese Animal Welfare Act.
Ariane Aquilina obtained the degree of LL.D. from the University of Malta in 2017 after suc-cessfully defending a thesis entitled “Regulating the Keeping of Animals in Zoos: De Facto and De Jure” and was called to the bar in 2018. She is currently studying for a M.Sc. in International Animal Welfare, Ethics and Law at the University of Edinburgh. Ariane Aquilina is involved in the local animal welfare NGO scene. While reading law at the University of Malta, she took an active part in Għaqda Studenti tal-Liġi, fulfilling the roles of both editor and editor-in-chief for Id-Dritt Law Journal, and serving as Publications Officer on the Executive Board 2016/2017.
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1. Five Freedoms, Five Domains The Five Freedoms of animal welfare are a model comprised of freedoms that have had an immeasurable effect within the ambit of animal welfare. The emergence of the Five Freedoms can be traced back to the exponential increase in factory farming which boomed post-World War II, when a growing population demanded a more readily available and cheaper meat supply.1 This increase in demand required an increase in supply, which led to farms using processes to increase production that practically ignored the welfare of the animals being used. In 1964, the publication of Ruth Harrison’s seminal work “Animal Machines”, which exposed the inhumane conditions being experienced by farm animals,2 led to public outrage. As a result, the British Government appointed a committee to investigate livestock farming practices and in 1965 the “Report of the Technical Committee to Enquire into the Welfare of Animals kept under Intensive Livestock Husbandry Systems”, known as the Brambell report, was published. The beginnings of the Five Freedoms can be traced to this report: In principle we disapprove of a degree of confinement of an animal which necessarily frustrates most of the major activities which make up its natural behaviour and we do not consider such confinement or restraint permissible over a long period unless the other advantages thereby conferred upon the animal are likely to be very substantial. An animal should at least have sufficient freedom of movement to be able without difficulty, to turn round, groom itself, get up, lie down and stretch its limbs.3 Based on the recommendations in the Brambell Report, the British Government set up the Farm Animal Welfare Advisory Committee in 1967. This Committee was replaced by the current Farm Animal Welfare Council in 1979. The Five Freedoms as we know them today were developed by the Farm Animal Welfare Council, and while it is unclear when exactly they were set out, the earliest reference to them is considered to be a press 1 I A Robertson, Animals, Welfare and the Law: Fundamental Principles for Critical Assessment (Routledge 2015). 2 P Singer, Animal Liberation (HarperCollins Publishers 2009) 98. 3 Chairman: Professor F W Rogers Brambell F.R.S., ‘Report of the Technical Committee to Enquire into the Welfare of Animals kept under Intensive Livestock Husbandry Systems’ (December 1965) <http://edepot.wur.nl/134379> accessed 3 September 2019, emphasis added.
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Animal Welfare Law release dated 1979.4 The current Five Freedoms are as follows: Freedom 1: Freedom from hunger or thirst by ready access to fresh water and a diet to maintain full health and vigour (hereinafter “Freedom 1”); Freedom 2: Freedom from discomfort by providing an appropriate environment including shelter and a comfortable resting place (hereinafter “Freedom 2”); Freedom 3: Freedom from pain, injury or disease by prevention or rapid diagnosis and treatment (hereinafter “Freedom 3”); Freedom 4: Freedom to express normal behaviour by providing sufficient space, proper facilities and company of the animal’s own kind (hereinafter “Freedom 4”); Freedom 5: Freedom from fear and distress by ensuring conditions and treatment which avoid mental suffering (hereinafter “Freedom 5”).5 It can be observed that each freedom is made up of two parts, the first part being referred to as the freedom and the second part being referred to as the provision.6 The Five Freedoms have inarguably had a major effect on animal welfare in general, and animal welfare law in particular.7 Numerous animal welfare legislation frameworks are based on the Five Freedoms and incorporate 4 - -, ‘Five Freedoms’ (Farm Animal Welfare Council, last modified 16 April 2009) <https://webarchive.nationalarchives.gov.uk/20121010012427/http://www.fawc.org.uk/ freedoms.htm> accessed 3 September 2019. 5 --, ‘Annual Review 2012-2013’ (The Farm Animal Welfare Committee FAWC 2013) [online] <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/317786/FAWC_Annual_Review_2012-2013.pdf> accessed 4 September 2019. 6 S P McCulloch, ‘A Critique of FAWC’s Five Freedoms as a Framework for the Analysis of Animal Welfare’ [2013] 26 J Agric Environ Ethics <https://doi.org/10.1007/s10806-0129434-7 > accessed 24 August 2019. 7 S P McCulloch, ‘A Critique of FAWC’s Five Freedoms as a Framework for the Analysis of Animal Welfare’ [2013] 26 J Agric Environ Ethics <https://doi.org/10.1007/s10806012-9434-7 > accessed 24 August 2019; D J Mellor, ‘Moving Beyond the ‘Five Freedoms’ by Updating the ‘Five Provisions’ and Introducing Aligned ‘Animal Welfare Aims’’ [2016] 59(6) Animals <http://dx.doi.org/10.3390/ani6100059> accessed 3 September 2019.
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them into their text,8 including the animal welfare legislation of countries that are ranked highest in the world in terms of providing legal protection to animals9 such as the UK,10 Austria,11 Switzerland,12 Germany,13 and New Zealand.14 Mellor considers that the large influence of the Five Freedoms is due to four key factors: (1) the appealing “alliterative” nature of the Five Freedoms and the effective use of the terminology of “freedom”, (2) the fact that the Five Freedoms narrow down the term animal welfare from an abstract and general concept to specific and more tangible welfare concerns, such as the physical health of an animal, (3) the fact that these tangible concepts could therefore be interpreted into attainable goals, bolstered by practical advice on how such freedoms could be achieved set out in easy-to-understand provisions, such as “ready access to fresh water”, and (4) the growing prominence of animal rights activists during the same time period.15 The Five Freedoms have been effective in directing public attention to animal welfare concerns and the extensive lacuna in relation to animal welfare knowledge, and in encouraging scientific research to focus on obtaining more knowledge on the functioning of animals, including their welfare.16 However, they do present several issues and are not without 8 R Kagan and J Veasey, Challenges of Zoo Animal Welfare in Kleiman and others (eds), Wild Mammals in Captivity (The University of Chicago Press 2010) 11; I A Robertson, Animals, Welfare and the Law: Fundamental Principles for Critical Assessment (Routledge 2015). 9 - -, ‘Rankings’ (World Animal Protection) <https://api.worldanimalprotection. org/> accessed 7 September 2019. 10 Animal Welfare Act 2006 <http://www.legislation.gov.uk/ukpga/2006/45/contents> accessed 7 September 2019. 11 Tierschutzgesetz 2004 <https://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=20003541> accessed 7 September 2019. 12 Tierschutzgesetz 2005 <https://www.zuerchertierschutz.ch/fileadmin/user_upload/Tierschutzthemen/pdf/Tierschutzgesetz_e.pdf> accessed 7 September 2019. 13 Tierschutzgesetz 1972 <http://www.gesetze-im-internet.de/tierschg/index.html> accessed 7 September 2019. 14 Animal Welfare Act 1999 <http://www.legislation.govt.nz/act/public/1999/0142/ latest/DLM49664.html> accessed 7 September 2019. 15 D J Mellor, ‘Operational Details of the Five Domains Model and Its Key Applications to the Assessment and Management of Animal Welfare’ [2017] 60(7) Animals <http://dx.doi. org/10.3390/ani7080060> accessed 25 August 2019; D J Mellor, ‘Updating Animal Welfare Thinking: Moving Beyond the “Five Freedoms” towards “A Life Worth Living”’ [2016] 21(6) Animals <http://dx.doi.org/10.3390/ani6030021> accessed 26 August 2019. 16 D J Mellor, ‘Updating Animal Welfare Thinking: Moving Beyond the “Five Freedoms” towards “A Life Worth Living”’ [2016] 21(6) Animals <http://dx.doi.org/10.3390/ani6030021>
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their detractors. In 1995, Webster, being a member of both the Farm Animal Welfare Advisory Committee and the Farm Animal Welfare Council after it, and one of the original proponents of the Five Freedoms, was already writing that the text of the Five Freedoms was “very narrow-minded, since it [concentrates] almost exclusively on one aspect of behaviour (comfort seeking) to the exclusion of everything else that might contribute to good welfare.”.17 Green and Mellor state that one of the main problems with the concept of the Five Freedoms is that they “represent idealistic goals which in fact are not attainable during the life of any animal.”.18 While it was probably not the intention of the original Five Freedoms’ authors to propose the eradication of certain natural experiences, the terminology of the Five Freedoms can be confusing to laypersons as well as legislators, as they may purport the idea that experiences such as hunger and thirst could, at some point, be eliminated. In reality, experiences such as hunger and thirst are a natural occurrence that are found even in well-off animals, which do not themselves reflect a bad welfare state, but rather reflect the natural and inevitable processes undergone by animals. It is biologically impossible for these experiences to be eradicated completely,19 and in fact they are actually beneficial to welfare since they inherently motivate the animal to carry out natural functions such as drinking water or eating food, which are essential in maintaining welfare levels.20 The concern however arises when these experiences are prolonged and/or increased in intensity due to internal or external factors. The Five Freedoms were created during a period when the main school accessed 26 August 2019. 17 John Webster, Animal Welfare: A Cool Eye Towards Eden (Blackwell Scientific 1995) 11. 18 T C Green and D J Mellor, ‘Extending Ideas about Animal Welfare Assessment to include ‘Quality of Life’ and Related Concepts’ [2011] 59(6) New Zealand Veterinary Journal <http://doi.org/10.1080/00480169.2011.610283> accessed 25 August 2019. 19 D J Mellor, ‘Updating Animal Welfare Thinking: Moving Beyond the “Five Freedoms” towards “A Life Worth Living”’ [2016] 21(6) Animals <http://dx.doi.org/10.3390/ani6030021> accessed 26 August 2019. 20 D J Mellor, ‘Moving Beyond the ‘Five Freedoms’ by Updating the ‘Five Provisions’ and Introducing Aligned ‘Animal Welfare Aims’’ [2016] 59(6) Animals <http://dx.doi. org/10.3390/ani6100059> accessed 3 September 2019; D J Mellor, ‘Animal Emotions, Behaviour and the Promotion of Positive Welfare States’ [2012] 60(1) New Zealand Veterinary Journal <https://doi.org/10.1080/00480169.2011.619047> accessed 3 September 2019.
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of thought among animal welfarists was that the removal of negative experiences would be enough to provide good welfare.21 However, this concept has changed, and it is nowadays widely accepted that an optimum welfare level consists of ensuring that the animal does not suffer negative experiences, but also has the ability to take part in positive experiences.22 A cursory look at the Five Freedoms will indicate that the wording does not delineate positive experiences as being part of welfare considerations,23 thus proving problematic in light of current thinking.24 Furthermore, the Five Freedoms lack any consideration of an animal’s affective state.25 Put simply, the affective state of an animal involves its mental subjective state in reaction to its experiences, which in turn affects its welfare. For a long time, the concept of animals being able to experience such mental subjective states (or “feelings” in layman’s terms) was frowned upon by the scientific community as constituting an extreme form of anthropomorphism.26 Thus, early animal welfare considerations solely focused on physiological functions and issues.27 However, the concept of the affective state of an animal began to take hold in the early 1990s, became widely accepted by the early to mid-2000s, and eventually became 21 D J Mellor, ‘Animal Emotions, Behaviour and the Promotion of Positive Welfare States’ [2012] 60(1) New Zealand Veterinary Journal <https://doi.org/10.1080/00480169.2011. 619047> accessed 2 September 2019. 22 Vide inter alia: M Dawkins, ‘Behaviour as a Tool in the Assessment of Animal Welfare’ [2003] 106(4) Zoo Biology < https://doi.org/10.1078/0944-2006-00122> accessed 2 September 2019; D Broom, ‘A History of Animal Welfare Science’ [2011] 59(2) Acta Biotheoretica <https://doi-org.ezproxy.is.ed.ac.uk/10.1007/s10441-011-9123-3> accessed 2 September 2019; D J Mellor, ‘Positive Animal Welfare States and Reference Standards for Welfare Assessment’ [2014] 63(1) New Zealand Veterinary Journal <http://dx.doi.org/10.1080/004801 69.2014.926802> accessed 2 September 2019. 23 M Barrows, ‘Welfare Assessment in Zoo Animals’ [2017] 181(6) Veterinary Record <http://dx.doi.org/10.1136/vr.j3583> accessed 2 September 2019. 24 J Webster, ‘Animal Welfare: Freedoms, Dominions and ‘A Life Worth Living’’ [2016] 35(6) <http://dx.doi.org/10.3390/ani6060035> accessed 5 September 2019. 25 T C Green and D J Mellor, ‘Extending Ideas about Animal Welfare Assessment to include ‘Quality of Life’ and Related Concepts’ [2011] 59(6) New Zealand Veterinary Journal <http://doi.org/10.1080/00480169.2011.610283> accessed 25 August 2019. 26 D Fraser, Understanding Animal Welfare the Science in its Cultural Context (Oxford: Wiley-Blackwell, 2008). 27 D J Mellor and N J Beausoleil, ‘Extending the ‘Five Domains’ Model for Animal Welfare Assessment to Incorporate Positive Welfare States’ [2015] 24 Animal Welfare <http:// dx.doi.org/10.7120/09627286.24.3.241> accessed 2 September 2019; D J Mellor, ‘Animal Emotions, Behaviour and the Promotion of Positive Welfare States’ [2012] 60(1) New Zealand Veterinary Journal <https://doi.org/10.1080/00480169.2011.619047> accessed 2 September 2019.
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one of the current pillars of animal welfare science.28 Therefore, the lack of consideration of the affective state of animals in the Five Freedoms means that any framework based solely on them runs the risk of ignoring what is nowadays considered an integral part of animal welfare.29 Moreover, the text of the Five Freedoms is so general that even following them to the letter does not necessarily guarantee the welfare of an animal.30 For example, one of the Five Freedoms states that an animal should have access to appropriate nutrition and fresh water; however it does not delineate how such access should be set up. This means that a person without technical knowledge regarding the aspects of animal welfare could assume that simply providing food to an animal twice a day and providing a bowl of water is enough to tick the box in relation to this freedom. In fact, scientific research has shown that appropriate nutrition involves numerous aspects which include the type and amount of food, as well as the method by which the animal obtains the food or water. Setting down a bowl of water, for example, may work with animals such as dogs or cats, but will not work with other species. It has been shown time and time again that the provision of food can be used as an enrichment technique to provide positive behavioural experiences that are crucial to sustaining a good level of animal welfare.31 One example is when zoos feed tigers by nailing pieces of meat to wooden poles, forcing the tiger to exert its muscles and natural instincts in climbing the pole to obtain the meat, as 28 M Dawkins, ‘Behaviour as a Tool in the Assessment of Animal Welfare’ [2003] 106(4) Zoo Biology < https://doi.org/10.1078/0944-2006-00122> accessed 2 September 2019. 29 T C Green and D J Mellor, ‘Extending Ideas about Animal Welfare Assessment to include ‘Quality of Life’ and Related Concepts’ [2011] 59(6) New Zealand Veterinary Journal <http://doi.org/10.1080/00480169.2011.610283> accessed 25 August 2019. 30 D J Mellor, ‘Animal Emotions, Behaviour and the Promotion of Positive Welfare States’ [2012] 60(1) New Zealand Veterinary Journal <https://doi.org/10.1080/00480169.2011. 619047> accessed 2 September 2019. 31 Vide inter alia: S Howell and J Fritz, ‘The Nuts and Bolts of Captive Chimpanzee Diets and Food as Enrichment: A Survey’ [1999] 2(3) Journal of Applied Animal Welfare Science <https://doi.org/10.1207/s15327604jaws0203_3> accessed 6 September 2019; A Brinch Riber and J A Mench, ‘Effects of Feed- and Water-based Enrichment on Activity and Cannibalism in Muscovy Duckling’ [2008] 114 <https://doi.org/10.1016/j.applanim.2008.03.005> accessed 6 September 2019; P A Rees, An Introduction to Zoo Biology and Management (Wiley-Blackwell 2011); D P Hocking et al, ‘Foraging-Based Enrichment Promotes More Varied Behaviour in Captive Australian Fur Seals (Arctocephalus pusillus doriferus)’ [2015] 10(5) <http://dx.doi. org.ezproxy.is.ed.ac.uk/10.1371/journal.pone.0124615> accessed 6 September 2019; S M Troxell-Smith et al, ‘Zoo Foraging Ecology: Preference and Welfare Assessment of Two Okapi (Okapia johnstoni) at the Brookfield Zoo’ [2017] 4(2) Animal Behaviour and Cognition <https:// doi.org/10.12966/abc.05.05.2017> accessed 6 September 2019;
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opposed to simply throwing the meat into the enclosure. This issue has an effect on animal welfare legislation because legislators may not necessarily have the technical knowledge to understand these nuances and may therefore draft legal provisions that do not take into account the numerous aspects that are not delineated in the terminology of the Five Freedoms. This could create a situation where an animal owner and/or keeper is providing an animal with good welfare conditions according to animal welfare law but is not actually providing good welfare conditions according to scientific knowledge.32 Mellor sums it up as “[the Five Freedoms do] not capture, either in the specifics or the generality of its expression, the breadth and depth of current knowledge of the biological processes that are germane to understanding animal welfare.”.33 One of the ways that England’s Animal Welfare Act34 and Scotland’s Animal Health and Welfare (Scotland) Act35 attempt to get around some of the issues in relation to the wording of the Five Freedoms, is by adjusting them into five welfare needs, as follows: 1. need for a suitable environment. 2. need for a suitable diet. 3. need to be able to exhibit normal behaviour patterns. 4. need to be housed with, or apart, from other animals. 5. need to be protected from pain, suffering, injury and disease.36 32 D J Mellor, ‘Animal Emotions, Behaviour and the Promotion of Positive Welfare States’ [2012] 60(1) New Zealand Veterinary Journal <https://doi.org/10.1080/00480169.2011. 619047> accessed 2 September 2019. 33 D J Mellor, ‘Updating Animal Welfare Thinking: Moving Beyond the “Five Freedoms” towards “A Life Worth Living”’ [2016] 21(6) Animals <http://dx.doi.org/10.3390/ani6030021> accessed 26 August 2019. 34 Animal Welfare Act 2006 <https://www.legislation.gov.uk/ukpga/2006/45/contents> accessed 5 October 2019. 35 Animal Health and Welfare (Scotland) Act 2006 (asp 11) <https://www.legislation. gov.uk/asp/2006/11/contents> accessed 5 October 2019. 36 - -, ‘Animal Welfare Act’ (RSPCA) <https://www.rspca.org.uk/whatwedo/endcruelty/changingthelaw/whatwechanged/animalwelfareact> accessed 6 October 2019; --. ‘Animal welfare’ (British Veterinary Association) < https://www.bva.co.uk/News-campaigns-and-policy/Policy/Ethics-and-welfare/Animal-welfare/> accessed 6 October 2019.
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The adjustment of the wording of the Five Freedoms from negative “freedom(s) from”, requiring an absence of something, into ‘welfare requirements’, renders them easier to enforce namely because it shifts the onus onto those who are responsible for animals to “take positive steps to ensure they care for their animals properly” and provide for these five welfare needs.37 The idea is that the law takes a more proactive approach in attempting to ensure that animals’ needs are met before they enter a negative state of welfare characterised by a lack of a particular welfare requirement. In 1994, Mellor and Reid developed the model known as the Five Domains,38 which has been updated several times to keep up with new scientific knowledge on animal welfare, such as in 2015 when it was revised in order to reflect the inclusion of positive welfare experiences.39 Mellor himself states that the Five Domains are not intended to replace the Five Freedoms, but rather to be used as a “focusing device” in understanding the myriad aspects of an animal’s body and surroundings that need to be considered when assessing animal welfare.40 The Five Domains were not developed to be implemented into animal welfare legislation. Rather they were developed to act as a consolidated basis for animal welfare assessments, and in fact have been implemented in one of the most popular animal welfare assessments, the Welfare Quality Network.41 Even though they were not developed with the intention of being set out in legislative frameworks, they can also be utilised in developing effective animal welfare legislation, as they set out what should be considered in animal welfare and reflect more contemporary knowledge such as positive
37 - -, ‘Animal Welfare Act’ (RSPCA) <https://www.rspca.org.uk/whatwedo/endcruelty/changingthelaw/whatwechanged/animalwelfareact> accessed 6 October 2019. 38 D J Mellor and C S W Reid, Concepts of Animal Well-Being and Predicting the Impact of Procedures on Experimental Animals. in Baker and others (eds), Improving the Well-Being of Animals in the Research Environment 39 D J Mellor and N J Beausoleil, ‘Extending the ‘Five Domains’ Model for Animal Welfare Assessment to Incorporate Positive Welfare States’ [2015] 24 Animal Welfare <http:// dx.doi.org/10.7120/09627286.24.3.241> accessed 3 September 2019. 40 D J Mellor, ‘Operational Details of the Five Domains Model and its Key Applications to the Assessment and Management of Animal Welfare’ [2017] 60(7) Animals <http://dx.doi. org/10.3390/ani7080060> accessed 1 September 2019. 41 - -, ‘Assessment Protocols’ (Welfarequalitynetwork) <http://www.welfarequalitynetwork.net/en-us/reports/assessment-protocols/> accessed 8 September 2019
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welfare experiences42 and affective states43. The Five Domains are set out as follows: The Physical/Functional Domains (1) The Nutrition Domain which includes the availability of appropriate nutrition and food, and the minimisation of the deprivation of food and water and malnutrition (hereinafter “Domain 1”); (2) The Environment Domain which includes environmental opportunity and choice, and the minimisation of negative environmental challenges (hereinafter “Domain 2”); (3) The Physical Health Domain which includes fitness and ableness, and the minimisation of disease and injury (hereinafter “Domain 3”); (4) The Behaviour Domain which includes behavioural expression and the minimisation of behavioural restriction (hereinafter “Domain 4”); The Mental Domain (5) The Mental Domain, which includes the encouragement of positive experiences such as security, playfulness, and contentment, and the minimisation of negative experiences such as distress, frustration, and boredom (hereinafter “Domain 5”).44 In reflecting on the Five Freedoms 25 years after their conception, Webster states that the main issue with the Five Freedoms is that they have 42 D J Mellor and N J Beausoleil, ‘Extending the ‘Five Domains’ Model for Animal Welfare Assessment to Incorporate Positive Welfare States’ [2015] 24 Animal Welfare <http:// dx.doi.org/10.7120/09627286.24.3.241> accessed 4 September 2019. 43 D J Mellor, ‘Animal Emotions, Behaviour and the Promotion of Positive Welfare States’ [2012] 60(1) New Zealand Veterinary Journal <https://doi.org/10.1080/00480169.2011. 619047> accessed 2 September 2019. 44 D J Mellor and N J Beausoleil, ‘Extending the ‘Five Domains’ Model for Animal Welfare Assessment to Incorporate Positive Welfare States’ [2015] 24 Animal Welfare <http:// dx.doi.org/10.7120/09627286.24.3.241> accessed 3 September 2019.
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been interpreted in a manner that their original founders never intended. While the Five Domains are meant to be a comprehensive model to be used to determine the state of an animal’s welfare through inputs, both internal and external, the Five Freedoms are only intended to serve as an indicator of the ideal state of animal welfare45 and to be used as a first step in understanding the “outcome indicators” that may show the level of welfare an animal is experiencing.46 The Five Freedoms are only meant to describe a snapshot of an animal’s state of welfare at a particular time, and are not meant to consider the causes and outcomes of factors that are leading to that state on a long-term basis.47 While the freedoms delineated in the Five Freedoms are crucial to take into account when considering animal welfare, it is clear that on their own they are not enough upon which to base animal welfare protection.48 These limitations need to be considered when implementing the Five Freedoms in animal welfare legislation.
2. The Five Freedoms and the Five Domains in the Animal Welfare Act – are they covered? The Animal Welfare Act does not specifically mention the Five Freedoms or the Five Domains. In fact, there are few instances within the Animal Welfare Act where specific obligations are actually set out regarding the general welfare of animals, and animal owners’ obligations in relation to the animals that they own or keep. Throughout the rest of the Animal Welfare Act there are some other, more detailed obligations set out, such as in article 26(2) which states that if animals “fall ill or are injured” while they are being transported they shall “receive first-aid treatment as soon as possible” and shall “be given appropriate veterinary treatment and, if necessary, undergo 45 J Barber, D Lewis, G Agoramoorthy, and M F Stevenson, Setting Standards for Evaluation of Captive Facilities. in Kleiman and others (eds), Wild Mammals in Captivity (The University of Chicago Press 2010) 22. 46 J Webster, ‘Animal Welfare: Freedoms, Dominions and ‘A Life Worth Living’’ [2016] 35(6) <http://dx.doi.org/10.3390/ani6060035> accessed 5 September 2019. 47 J Webster, ‘Animal Welfare: Freedoms, Dominions and ‘A Life Worth Living’’ [2016] 35(6) <http://dx.doi.org/10.3390/ani6060035> accessed 5 September 2019. 48 S P McCulloch, ‘A Critique of FAWC’s Five Freedoms as a Framework for the Analysis of Animal Welfare’ [2013] 26 J Agric Environ Ethics <https://doi.org/10.1007/s10806-0129434-7 > accessed 24 August 2019.
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emergency slaughter in a way which does not cause them any unnecessary suffering”. There are also provisions that ban certain activities outright due to the toll on the welfare of the animals participating in them, including article 31, which bans animal fights, and article 31A, which bans the use of animals in circuses. However, one may notice a pattern within the majority of the provisions of the Animal Welfare Act, whereby various articles completely neglect to set out substantive provisions and instead concentrate on giving the Minister responsible for animal welfare the power to make regulations on several issues. This system is important and practical when attempting to regulate certain uses of animals that, due to ever-changing requirements, need to be constantly updated and require a number of technical provisions that are more effectively set out in subsidiary legislation49 which is easier to update, such as the transport of animals. Nevertheless, it is perturbing that even the articles regulating more general aspects of animal welfare leave much of their substance to be set out in subsidiary legislation. In particular, article 7, concerning the keeping of animals, focuses completely on granting power to the Minister to make regulations, and does not set out general obligations. Moreover, article 8, regarding the care of animals, sets out some general provisions but also leaves it up to subsidiary legislation made by the Minister to regulate some of the most important matters related to animal welfare This situation presents several issues, and is important to take note of, especially considering the fact that “poorly designed legislation can exacerbate rather than solve problems”.50 One main issue is the possibility that regulations on certain matters may not be promulgated. For example, Part X of the Animal Welfare Act deals with the use of animals in competitions. Sub-article (1) of article 30 discusses the prohibition on entering animals into competitions if their body is found to contain certain substances, and article 31 prohibits the organisation of animal fights. However, the rest of the provisions are left in the hands of regulations. Article 27 in fact states that “competitions which test the speed or strength of an animal shall not be organised, nor shall an animal be entered for such competitions, unless the competitions are held in accordance with regulations made under this article”. 49 G Doonan, M Appelt and C Inch, ‘Role of Legislation in support of Animal Welfare’ [2009] 50(3) The Canadian Veterinary Journal <https://www.ncbi.nlm.nih.gov/pmc/articles/ PMC2643446/> accessed 4 October 2019. 50 Ibid.
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The glaring problem here is that, to date, no regulations on the hosting of animal competitions have been published. This leaves a vacuum regarding whether such animal competitions technically can or cannot be organised and where the animals involved only have the undetailed and rather vague provisions found in article 8 to protect their welfare, which, when considering the myriad uses of animals in competitions, may not be enough to secure the welfare of these animals, as discussed further below. Another problem arises when considering that even where subsidiary legislation exists, it may still neglect to set out even general provision on animal welfare standards to be followed. An example of this in Maltese legislation are the Keeping of Wild Animals in Zoos Regulations.51 While it should be evident that the activity of keeping exotic animals kept in zoos needs to be carried out within a detailed framework that protects the welfare of such animals, the Keeping of Wild Animals in Zoos Regulations completely neglect to set out substantive welfare requirements. Furthermore, while it is important to have specialised subsidiary legislation in relation to certain activities, it is not feasible to expect specific regulations to be drafted and published in relation to each and every species and/or, activity for which animals are used. Apart from being impractical, an attempt to create such a wide range of legislation may backfire in spreading the law too thin and thereby weakening it and in creating a complicated system of legislation which is difficult to interpret and enforce.52 This lacuna in detailed provisions on the general aspects of animal welfare means that the implementation of the Five Freedoms and the Five Domains in the Animal Welfare Act is even more crucial. The setting out of general provisions on animal welfare in line with the Five Freedoms and the Five Domains would ensure that the enforcers of the Animal Welfare Act will have the opportunity to rely upon these provisions in ensuring the welfare of the animals found in Malta if more specific regulations have not yet been published. This leads us to consider whether the general provisions in the Animal Welfare Act actually protect the welfare of animals, and whether the Five Freedoms, and even the Five Domains, are fully covered under these 51 Subsidiary Legislation 439.08 The Keeping of Wild Animals in Zoos Regulations <http://www.justiceservices.gov.mt/DownloadDocument.aspx?app=lom&itemid=11047&l=1> accessed 5 October 2019. 52 J Vapnek and M Chapman for the Development Law Service FAO Legal Office, â&#x20AC;&#x2DC;Legislative and Regulatory Options for Animal Welfareâ&#x20AC;&#x2122; [2010] FAO Legislative Study 104 <http://www.fao.org/3/i1907e/i1907e00.htm> accessed 4 October 2019.
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general provisions. Before discussing the Five Freedoms and the Five Domains within the Animal Welfare Act, it is important to discuss a particular issue, this being the definition of the term “animal welfare”. The term “animal welfare” is found throughout the Animal Welfare Act, such as in sub-article (2) of article 3, which asserts that the State recognises “that it has the duty to promote the welfare of animals”, and sub-article (3) of article 8, which states that, “any person who keeps any animal or who agrees to look after an animal shall be responsible for its […] welfare”. Nonetheless, there is no definition of the term “animal welfare” provided for in the Act itself. This should not come as a surprise, considering that the definition of animal welfare has been the subject of international debate and has, over the years, been updated numerous times, with various definitions being postulated by different authors.53 This dynamic nature of the definition of animal welfare does not lend itself well to legislation. Bearing in mind that such a definition would need to be continuously updated, the setting out of a detailed definition may backfire.54 However, it is certainly advisable that a general understanding of animal welfare be set out in the legislation that governs the area in a manner that details general principles of animal welfare that must be considered with any and each species, but at the same time provides the opportunity for more technical criteria to be particularised in a prompt manner that allows for the law to keep up with scientific findings. This consideration regarding the definition of animal welfare is essential, in particular when considering sub-article (3) of article 8 which states that a person who keeps an animal or agrees to look after one is responsible for the animal’s “health and welfare”. To the untrained eye, it may seem that the inclusion of the words “health” and “welfare” is enough to ensure the full protection of these aspects of an animal’s life and existence. However, the reality is that there are two aspects to legislation – the legislation itself which sets out provisions that should be followed, and the enforcement of 53 M S Dawkins, ‘Behaviour as a Tool in the Assessment of Animal Welfare’ [2003] 106 Zoology <https://doi.org/10.1078/0944-2006-00122> accessed 1 October 2019; D M Broom, ‘A History of Animal Welfare Science’ [2011] 59(2) Acta Biotheoretica <http://dx.doi. org/10.1007/s10441-011-9123-3> accessed 1 October 2019. 54 J Vapnek and M Chapman for the Development Law Service FAO Legal Office, ‘Legislative and Regulatory Options for Animal Welfare’ [2010] FAO Legislative Study 104 <http://www.fao.org/3/i1907e/i1907e00.htm> accessed 4 October 2019.
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it, which is crucial in ensuring that law does not remain a paper tiger but effectively regulates the matters at hand.55 For proper enforcement to be carried out, the law cannot hope to rely on such broad and wide terms as “health” or “welfare” without providing even a vague indication as to what the intention behind the use of the terms are. The main provisions detailing general obligations on animal welfare in the Animal Welfare Act are set out in sub-articles (2), (3), and (4) of article 8, as follows: (2) Animals shall not be caused any unnecessary pain, suffering or distress and no animal shall be abandoned. (3) Any person who keeps any animal or who agrees to look after an animal shall be responsible for its health and welfare. (4) Any person shall take such steps as are reasonable in all the circumstances to ensure that the needs of an animal for which he is responsible or which he agrees to look after shall be met to the extent required by good practice and in pursuance to the good health and well-being of the animal. For the purposes of this sub-article, animal needs include the provision of suitable environment, provision of a healthy diet, allowance for the animal to exhibit normal behavioural patterns, provision of suitable housing, segregation from other animals where necessary and protection from pain, suffering, injury and disease. Keeping in mind the problems related to the use of such general terms as “health” and “welfare”, and therefore putting aside sub-article (3) of article 8 for a moment, it may be concluded that the full ambit of the Five Freedoms and the Five Domains is not clearly provided for in the Animal Welfare Act. Sub-article (2) of article 8 focuses on banning the cause of any unnecessary pain, suffering or distress to any animal. The Animal Welfare Act does not provide a definition of “pain”, “distress”, or “suffering”, which brings into play the already mentioned issue of using general definitions 55 --, ‘Charity reveals the Difficulties of enforcing Animal Welfare Law’ [2016] Veterinary Record <https://doi.org/10.1136/vr.i6532> accessed 4 October 2019.
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without providing for what such words are mean in the context of animal welfare. “Pain” as a term correlates to Freedom 3, which is the freedom from pain, injury or disease by prevention or rapid diagnosis and treatment, and Domain 3 relating to health. On the other hand, the term “distress” is included in the wording of Freedom 5, which is the freedom from fear and distress by ensuring conditions and treatment which avoid mental suffering. While it is not directly mentioned in the matrix used by the developers of the Five Domains,56 the term distress also correlates to Domain 5 relating to the mental state of an animal. “Suffering” as a term does not feature either in the wording of the Five Freedoms or the Five Domains matrix, and due to the broad nature of this term, it falls victim to the problems of interpretation as delineated above. Interestingly, the term “ill-treatment” is defined in article 2 of the Animal Welfare Act, however it is not utilised in article 8. The other terms found in the Five Freedoms and the Five Domains do not feature in this sub-article. On one hand, one could argue that the inclusion of the terms “suffering” and “distress” fully cover the Five Freedoms and the Five Domains, because a lack of any one of the Five Freedoms or aspects of the Five Domains may contribute to suffering and distress. However, the same argument in relation to the inclusion of terms that are too ambiguous in legislation applies here, where the lack of inclusion of specific provisions creates legislation that is difficult to interpret, enforce, and potentially defend in court.57 For example, one does not need to have specialised knowledge on animal welfare in order to understand that a lack of fresh water affects an animal in a negative manner and is likely to cause suffering or distress. However, consider a situation where an officer tasked with enforcing the Animal Welfare Act is faced with an animal that for all intents and purposes is not showing obvious signs of suffering and distress, but is not being provided with an appropriate amount of fresh water. By relying on general terms and not on detailed provisions (such as specifically setting out that an animal needs an appropriate amount of fresh water) the Animal Welfare 56 D J Mellor and N J Beausoleil, ‘Extending the ‘Five Domains’ Model for Animal Welfare Assessment to Incorporate Positive Welfare States’ [2015] 24 Animal Welfare <http:// dx.doi.org/10.7120/09627286.24.3.241> accessed 5 October 2019; D J Mellor, ‘Operational Details of the Five Domains Model and Its Key Applications to the Assessment and Management of Animal Welfare’ [2017] 60(7) Animals <http://dx.doi.org/10.3390/ani7080060> accessed 5 October 2019. 57 --, ‘Charity reveals the Difficulties of enforcing Animal Welfare Law’ [2016] Veterinary Record <https://doi.org/10.1136/vr.i6532> accessed 4 October 2019.
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Act is putting a burden on the officers that are tasked with enforcing it to prove that this lack of fresh water is directly affecting the animal. This may sound easy but in reality throws up a slew of issues regarding how such an officer would go about proving this matter. Nonetheless, a series of questions inevitably follow: 1. Will the officer entrusted with such enforcement be able to prove that the animal is in a state of suffering and distress, despite not showing obvious signs of these conditions? 2. How will the officer carry out a test in order to prove that the animal is indeed showing signs of suffering and distress? 3. How will the officer prove that the animal’s behaviour is directly linked to the lack of fresh water? Considering that the study of animal behaviour is complex and requires years of training and a basic general knowledge of species’ behaviour, will the officer be able to explain these findings to a court, even if the officer does manage to prove all of the above points? All of these issues could be avoided if the Animal Welfare Act were to directly state that any animal must be provided with an appropriate amount of fresh water. Sub-article (4) of article 8 is more detailed than sub-article (2). It states that a person must take reasonable steps to ensure that the needs of an animal that he is looking after are fulfilled , and further clarifying that such needs include the provision of a “suitable environment”, a “healthy diet”, “allowance for the animal to exhibit normal behavioural patterns”, “suitable housing”, “segregation from other animals where necessary”, and “protection from pain, suffering, injury and diseases”. Putting aside for a moment the term “suffering”, and the problems it creates as delineated above, the wording of sub-article (4) of article 8 of the Animal Welfare Act does in fact cover some aspects of the Five Freedoms as well as the Five Domains. The provision of a “suitable environment” and “suitable housing” is an integral part of ensuring Freedom 2, being the freedom from discomfort, and Domain 2, being the domain relating to environment. The provision of a “healthy diet” correlates to Freedom 1, being the freedom from hunger 63
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and thirst, and Domain 1, being the domain relating to nutrition It should be noted that an assumption is being made whereby the term “healthy diet” also includes the provision of fresh water. This must be noted since it is not generally good practice to word legislation in a manner that requires such suppositions.58 The “allowance for the animal to exhibit normal behavioural patterns” and the requirement to provide “segregation from other animals where necessary” correlate to Freedom 4, being the freedom to express normal behaviour, and Domain 4, being the domain relating to behaviour. The segregation of an animal may also affect other freedoms and domains in ensuring that such an animal is protected from physical attack from conspecifics, relating to Freedom 3 and Domain 3, and the triggering of mental distress, relating to Freedom 5 and Domain 5. The protection from “pain, […] injury and diseases” correlates to Freedom 3, being the freedom from pain, injury or disease, and Domain 3 relating to health. Keeping in mind the asides delineated above, it can be said that the majority of the Five Freedoms and the Five Domains are covered under subarticle (4) of article 8. However, the author argues that the wording here is still too general in nature. Taking as an example the term “suitable housing”, even within the main Animal Welfare Act, general provisions on what suitable housing should entail should be delineated in order to facilitate the interpretation and enforcement of the provision. The model of the Five Domains is more helpful in this context than the Five Freedoms, as the matrix that sets out the Five Domains59 is more detailed and can be utilised in providing a model to establish such provisions. A subsequent example would be that of “suitable housing”, where the Five Domains indicate that in ensuring the protection of Domain 2 regarding the environment, there are conditions that should be removed from, and conditions that should be made available within the housing of an animal, such as a thermal environment, which would allow the animal to feel comfortable, and the provision of fresh air.60 Notably, Freedom 5 being the freedom from fear 58 J Vapnek and M Chapman for the Development Law Service FAO Legal Office, ‘Legislative and Regulatory Options for Animal Welfare’ [2010] FAO Legislative Study 104 <http://www.fao.org/3/i1907e/i1907e00.htm> accessed 4 October 2019. 59 D J Mellor and N J Beausoleil, ‘Extending the ‘Five Domains’ Model for Animal Welfare Assessment to Incorporate Positive Welfare States’ [2015] 24 Animal Welfare <http:// dx.doi.org/10.7120/09627286.24.3.241> accessed 5 October 2019; D J Mellor, ‘Operational Details of the Five Domains Model and Its Key Applications to the Assessment and Management of Animal Welfare’ [2017] 60(7) Animals <http://dx.doi.org/10.3390/ani7080060> accessed 5 October 2019. 60 D J Mellor and N J Beausoleil, ‘Extending the ‘Five Domains’ Model for Animal Welfare Assessment to Incorporate Positive Welfare States’ [2015] 24 Animal Welfare <http://
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and distress and Domain 5 relating to the mental state of an animal, are not mentioned in sub-article (4) of article 8.
3. The Way Forward Considering all the above, the question arises as to whether the Animal Welfare Act requires a review and update in its wording. In the author’s opinion such an update is required for several reasons. Clear and definite legislation is extremely important in any sector, however it is indispensable when faced with an area such as animal welfare, that in general and across jurisdictions tends to suffer from a lack of various resources.61 A strong legislative framework would allow for officers that are already over-extended to carry out their work as set out in legislation in a more expedient and efficient manner, without having to jump through various hoops because of poorly-worded provisions. Furthermore, it seems that the Five Freedoms, while not completely covered, are more represented in the Animal Welfare Act than the Five Domains. This is not an ideal situation because, as discussed above in this monograph, the Five Freedoms lack provisions on certain aspects of animal welfare that are now considered to be integral to ensuring that an animal enjoys good welfare, such as the inclusion of positive welfare standards and the consideration of affective states and behaviours. The Animal Welfare Act needs to be updated to better represent the Five Domains matrix, specifically to better ensure the protection of the welfare of animals. One solution to this issue would be the amendment of article 8 of the Animal Welfare Act along the lines of promulgating a statement that any person taking care of an animal should follow general welfare principles that are set out in a schedule to the Animal Welfare Act. This schedule can then be used to delineate more detailed general provisions and include the requirements that are discussed in the matrix of the Five Domains model. dx.doi.org/10.7120/09627286.24.3.241> accessed 5 October 2019. 61 J Vapnek and M Chapman for the Development Law Service FAO Legal Office, ‘Legislative and Regulatory Options for Animal Welfare’ [2010] FAO Legislative Study 104 <http://www.fao.org/3/i1907e/i1907e00.htm> accessed 4 October 2019.
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So, for example, while the general principle can assert that animals must be provided with suitable housing, the more detailed provisions to it can set out the requirements for this, such as access to enrichment opportunities. The technical details of such enrichment would then be set out according to species-specific needs in subsidiary legislation, but what is important is that the requirement to provide enrichment is specifically set out in the main act to fill in where subsidiary legislation falls short. In such a case, what is important is that a provision is included in the Animal Welfare Act, whereby the schedule that sets out general principles may be amended through a legal notice. Legal notices are easier to amend than an act, as they do not require a bill and the process that goes along with the publication of a bill to be published, and therefore these general principles can be updated as required in a timely manner. What is certain is that the importance of the animal welfare legislation should not be underestimated. Animals are a crucial part of everyday human life, in ways that go beyond simply being kept as pets and being used for food or entertainment.62 As living beings they should be protected from suffering, and strong legislation is crucial in providing this protection. Our law recognises sentience of animals in sub-article (2) of article 3, following the example set out by the Treaty on the Functioning of the European Union, which states that “…in formulating and implementing [policies] the Union and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals”.63 One of the aspects of sentience is the capacity to experience circumstances in a subjective manner. The possibility that the wording of the Animal Welfare Act makes its enforcement more difficult and less effective, and therefore decreases the amount of protection afforded to animals, goes against the very principles it sets out. Jeremy Bentham was clear in enunciating that the capacity of animals to suffer entitles them to protection under the law: It may come one day to be recognized, that the number 62 J Vapnek and M Chapman for the Development Law Service FAO Legal Office, ‘Legislative and Regulatory Options for Animal Welfare’ [2010] FAO Legislative Study 104 <http://www.fao.org/3/i1907e/i1907e00.htm> accessed 4 October 2019. 63 Treaty on the Functioning of the European Union 2007, article 13 <https://eur-lex. europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12012E/TXT:EN:PDF> accessed 5 October 2019.
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of the legs, the villosity of the skin, or the termination of the os sacrum, are reasons equally insufficient for abandoning a sensitive being [â&#x20AC;Ś] the question is not, Can they reason? nor, Can they talk? but, can they suffer?64
64 J Bentham, An Introduction to the Principles of Morals and Legislation in Two Volumes, a new Edition corrected by the Author (Volume II, William Pickering 1828) 235-236 <https://books.google.com.mt/books?id=pEgJAAAAQAAJ&pg=PA235&redir_esc=y#v=onepage&q&f=false> accessed 5 October 2019.
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