QUEEN'S BENCH DIVISION
B e f o r e :
| The Queen on the application of Petsafe Ltd
The Electronic Collar Manufacturers Association
|- and -
|The Welsh Ministers
WordWave International Limited
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Clive Lewis QC and Joanne Clement (instructed by Welsh Assembly Government) for the Defendant
Hearing date: 8 October 2010
Crown Copyright ©
The Honourable Mr Justice Beatson:
The Legislative Framework
"(a) it is of a kind which is commonly domesticated in the British Isles,
(b) it is under the control of man whether on a permanent or temporary basis or
(c) it is not living in a wild state".
Stray dogs and feral cats thus fall within (a), but animals of a kind not commonly domesticated in the British Isles are only "protected animals" to the extent that they are under the control of man, or not living independently in the wild.
"(1) In this Act, references to a person responsible are to a person responsible for an animal whether on a permanent or temporary basis.
(2) In this Act, references to being responsible for an animal include being in charge of it.
(3) For the purposes of this Act, a person who owns an animal shall always be regarded as being a person who is responsible for it.
(4) For the purposes of this Act, a person shall be treated as responsible for any animal for which a person under the age of 16 years of whom he has actual care and control is responsible."
Section 62(4) provides that references to responsibility in the 2006 Act are to be read in accordance with section 3.
"12 regulations to promote welfare
(1) The appropriate national authority may by regulations make such provision as the authority thinks fit for the purpose of promoting the welfare of animals for which a person is responsible, or the progeny of such animals."
Section 12(3) provides that the power to make regulations includes the power to provide that the breach of a provision of the regulations is an offence, and to apply a relevant post-conviction power in relation to conviction for an offence under the regulations. Section 12(5) provides that a specified offence under the regulations is to be treated as a relevant offence for the purpose of the power in section 23 to issue a warrant authorising premises to be entered and searched.
"2. Prohibition on use of electronic collars
(1) It is prohibited for a person to –
(a) attach an electronic collar to a cat or a dog;
(b) cause an electronic collar to be attached to a cat or a dog; or
(c) be responsible for a cat or a dog to which an electronic collar is attached."
The background to the 2010 Regulations
"…There are no plans at present to ban the sale and use of any electronic training aids for animals, including the "electric shock collars",
"while we are aware of a number of scientific studies on electric shock collars, DEFRA considers that to date those studies published in this area are not sufficiently robust and that the evidence base needs to be built on before consideration can be given to either banning or regulating their use…"
The article contains a link to the 10 Downing Street website. Angela Critchley states the response has been removed from the website, but that she was informed by Lord McNair that the quotation is accurate. Lord McNair's evidence, however, does not refer to this article or to the then Prime Minister's response.
(a) a ban did not make sense since the devices are available by mail order in England and other places in the EU;
(b) the shock given cannot burn or scorch; and
(c) the devices help to avoid injury to animals on roads or at the hands of farmers protecting their stock.
I deal with the substantive reasons of those who favoured a ban, and the Chief Veterinary Officer's assessment of the evidence and the responses in paragraphs - and  below.
"Comparing the six weeks prior to the ban with the six weeks past we have notice[d] a 40% drop in orders from Wales."
In that period there were 6 online orders from Wales since the ban. On his figures that means that in the six weeks before the ban there were about 14 orders. He also stated that, on being informed of the ban, one customer cancelled, two changed to a spray option, two went ahead with the order, and a response was awaited from the sixth.
"This has not been an easy subject to examine, as there is much emotion involved. There is a large degree of concern about these devices being improperly used, which is in contrast to responses from people who have used them and found that they have worked in stopping an animal from misbehaving. The industry that manufactures these devices obviously supports their continued use, while the veterinary profession has mixed views. In addition to all of this there are scientific publications that provide evidence against and for the acceptability of electric-shock collars."
"After giving due considerations to the arguments, I propose to draft detailed regulations to introduce a ban on the use of electric-shock dog collars in Wales. Consideration will be given to whether their sale and possession should be included in the legislation. Appropriate provisions will be made to ensure that consideration is given to situations where the exceptional use of these devices could occur."
"The purpose of the legislation is to prevent the use of electronic training/impulse collars on dogs and cats. The Animal Welfare Act 2006, implemented in Wales on 27 March 2007 introduced new concepts for the raising of standards of animals in Wales. Specifically Section 4 of that Act provides for an offence to have been committed if unnecessary suffering is caused, this include both mental and physical suffering. Commonly known as electronic shock collars or static pulse training devices, they are considered to conflict with positive reward-based training in that the "action" of triggering an electrical stimulus is not necessarily directly associated with the behaviour chain sought. Further, that the science to date suggests that the use of these collars adversely affects the behaviour of animals and in untrained hands could cause pain or distress.
The legislation bans the use of these devices in Wales but not their sale or possession. By restricting the legislation to the act of using the devices, there are no trade issues and the issue of possession by a person transiting Wales does not arise…"
Doing nothing is not an option. Section 9 of the Animal Welfare Act places a statutory duty on the person responsible for an animal to ensure its welfare. Allowing the continued use of electronic devices would be inconsistent with this duty given the evidence of harm being presented by both the animal welfare organisations, registration societies and indeed the industry.
"Immediate impact of change will fall on those persons who use these devices routinely. The consultation responses confirmed that in many cases these devices were only used briefly and saved them (the owners) time and effort. Whilst that is one view, it does not take account of the welfare of the animal. Annex 4 contains a list of the main areas of research which sustainably gives a view that there are problems with these devices, their usage and the resulting consequences on the animals.
The benefits of providing legislation include the certainty of being able to comply with the Animal Welfare Act 2006 and a certainty on the enforcement process.
In Wales it is estimated 25% of households have a dog and 20% have cats. The 2001 census indicated that there were 1,209,000 households in Wales. Based on these figures, approximately 300,000 and 242,000 cats reside in Wales. The Electronic Collar Manufacturers Association (ECMA) estimate in 2006 that there were about 6,000 collars being used in Wales but they only have records for 414 collars sold in Wales. Other consultees (Kennel Club) confirm that there are unlikely to be great numbers of collars in use in Wales.
However, ECMA, in the response to the third consultation say that they have evidence to suggest that the figures of collars used might be substantially higher and that "in 2010 there are likely to be in the region of half a million collars in use in the United Kingdom. It is not known how evenly spread the distribution is throughout the UK but a proportion of those collars are going to be in Wales, perhaps 50,000".
These are subjective figures and the ECMA evidence is unsubstantiated by any sales, or other figures, although we do accept that the figures quoted in 2006 are now out of date.
In terms of the number of jobs that may be put at risk, "ECMA estimate that the electronic training aid industry has a turnover of £2-3 million a year in the United Kingdom. It is not possible to say with certainty what proportion of this would apply to Wales. We are not aware of jobs in Wales that would be lost as a result of a ban".
Comments have been received in the third consultation from ECMA to suggest that the vested interests in training and behaviour are behind the bid for a ban on the use of these devices, but the training costs of a behaviourist are roughly [equivalent] to the cost of an electronic device. Devices can cost anywhere between £100-200, or even more depending on the product. Animal behaviourist costs are of the same order…
…A number of people have commented that these collars have given them peace of mind. While that is noted the Animal Welfare Act only allows for the welfare of the animal to be considered. Therefore the question of benefit is whether the animal benefits. Modern thinking about positive training as encouraged by the veterinary professions, third section organisation, scientific research and in general animal behaviourists is sufficiently strong to recognise that these devices may cause problems for dogs and cats which cannot be ignored."
"…There are a plethora of positive training methods available to suit all breeds and situations. Aggressive animals can be treated as part of behaviour modification programmes, which are based on an understanding of the motivation for each dog's behaviour, and the use of humane, reward-based training methods. These can include lure-reward training, compulsion praise training and marker training." (See Professor Glossop's first statement, paragraph 48)
Professor Glossop stated that no further comments were received from the Commission and three month stand-still period expired on 8 February 2010.
"26. Scientific research provides mixed evidence about the consequences of electronic collars for animals. It was my view that the balance of this scientific evidence indicated that electronic collars had the potential to have adverse consequences for animals, e.g. that they could cause harm to the animal, they could cause fear and anxiety for the animal which could in turn elicit aggression. The evidence also suggests there is a risk of "misassociation". This means that the dog associates the electric shock with a non-intended subject or behaviour. For example, a dog might associate the shock with the proximity of a human or another dog rather than with crossing the invisible boundary.
27. In my professional opinion, reward-based training and control using positive reinforcement is a better way of promoting the welfare of animals than the use of electronic devices that depend upon the delivery of an electric shock to an animal. There are a number of reasons for this conclusion.
28. First, positive reward-based training techniques have no negative physical impact on an animal, whereas the use of electronic collars inevitably involves the administration of an electric shock to animals.
29. Secondly, there are welfare implications resulting from the incorrect use of the electronic and the potential for abuse. Anxious and fearful responses can occur if the punishment is poorly synchronised with the action of the animal; and owners may not be objective in the use of punishment techniques. The potential for misuse exists particularly in those who are not fully skilled or experienced in using the collar, for example members of the general public (see, for example, Stress Symptoms, Caused by the Use of Electric Training Collars on Dogs: Schalke et al 2005).
30. Thirdly, positive reinforcement techniques help to address the underlying causes of a dog's unwanted behaviour, whereas electronic collars simply suppress that behaviour. The behaviours for which people wish to use shocks are those that annoy humans yet those behaviours themselves can be either signals or signs of underlying distress in the animal. While the behaviour of the animal may be suppressed by electronic collars, the underlying cause of the behaviour is not addressed as a consequence."
"The evidence, to date, satisfies the Welsh Ministers that the use of alternative, reward-based training better promotes the welfare of animals than the use of collars delivering electric shocks. That is the conclusion that other countries within the European Union and outside it have also reached. I should also add that the use of collars has been banned by the police since 2000 and the armed forces do not use them…"
The EU and ECHR grounds:
Irrationality, Wednesbury unreasonableness and perversity:
The new domestic law grounds:
"The overriding principle in the interpretation of legislation made under powers conferred by statute is that it should be construed in the light of the enabling Act generally, and, in particular, so as to be consistent with its substantive provisions…"
"The Crown Court on being notified that an accused who is in custody pending trial there has the benefit of a custody time limit…and that the time limit is about to expire, shall grant him bail in accordance with the Bail Act 1976 as from the expiry of the time limit, subject to a duty to appear before the Crown Court for trial".
"[when] called upon to consider the by-laws of public representative bodies clothed with…ample authority…and exercising that authority accompanied by…checks and safeguards…the consideration of such by-laws ought to be approached from a different standpoint. They ought to be supported if possible. They ought to be, as has been said, "benevolently" interpreted and credit ought to be given to those who have to administer them that they will be reasonably administered…I think courts of justice ought to be slow to condemn as invalid any by-law so made under such conditions, on the ground of supposed unreasonableness."
Courts have been particularly cautious where the legislative power is exercised by a Minister, and where the instrument has been laid before Parliament: see City of Edinburgh DC v Secretary of State for Scotland  SLT 551 and R v Secretary of State, ex p. Nottinghamshire County Council  AC 420; R v Secretary of State for Trade and Industry, ex p. Lohnro plc  1WLR 525, 536.
Appropriateness of judicial review