25 July 2020
Written by: Zoe McDonald, PNLD Legal Adviser
Not reviewed after the date of publication
‘Lucy’s Law’ is the colloquial term for the amendment to the Animal Welfare (Licensing of Activities Involving Animals) (England) Regulations 2018 brought about by the Animal Welfare (Licensing of Activities Involving Animals) (England) (Amendment) Regulations 2019. Lucy’s Law is currently only in force in England, as it is devolved legislation.
PNLD Legal Adviser, Zoe McDonald, provides an overview of the regulations and addresses what have been perceived as loopholes in the legislation in terms of jurisdiction, as well as looking at the confusion regarding what provisions apply to licence holders as opposed to those who are occasional breeders.
The law is named after Lucy, a Cavalier King Charles Spaniel who was rescued from a puppy farm, where she was subjected to terrible conditions. The law is the result of a 10-year grassroots campaign, aimed at abolishing cruel breeding. Puppy farms are located across the UK, with most dependent upon third-party sellers or ‘dealers’ to distribute often sick, traumatised, unsocialised puppies that have been taken away from their mother at just a few weeks old.
The Animal Welfare (Licensing of Activities Involving Animals) (England) Regulations 2018 was the first step, with tougher licensing regulations being created for five activities involving animals: selling animals as pets, providing for or arranging for the provision of boarding for cats or dogs, hiring out horses, dog breeding and keeping or training animals for exhibition.
What has changed?
The 2018 Regulations were amended by the 2019 Regulations on 6th April 2020. The key change introduced falls in Schedule 3, paragraph 5, of the 2018 Regulations, in relation to the sale of animals. It states:
‘5(1) No animal of any of the following descriptions may be sold as a pet, or sold with a view to being resold as a pet, by or on behalf of the licence holder –
(a) unweaned mammals;
(b) mammals weaned at an age at which they should not have been weaned;
(c) non-mammals that are incapable of feeding themselves;
(d) puppies, cats, ferrets or rabbits, aged under 8 weeks;
(e) puppies or kittens which were not bred by the licence holder.
5(2) The sale of a dog must be completed in the presence of the purchaser on the premises.’
This landmark change in the legislation is aimed at disrupting the supply chain of unscrupulous breeders and dealers. The 2019 Regulations sought to tackle low-welfare and the high volume supply of puppies and kittens, by banning their commercial third-party sale in England. In a nutshell, ‘Lucy’s Law’ means that anyone wanting to get a new puppy or kitten in England must now buy direct from a breeder, or consider adopting from a rescue centre instead.
Questions have arisen since the legislation came into force as to whether the provision above only applies to licence holders and the answer is yes. Schedule 1 of the 2018 regulations defines the licensable activities for each sector. In all cases, except dog breeding, the licensable activity is restricted to businesses or those operating on a commercial basis.
This means that the commercial selling of puppies (dogs under six months) cannot be undertaken by anyone but a licensed breeder. To sell a dog that is under 6 months old, in the course of a business, is an unlawful activity for anyone but the breeder who bred the puppies and this requires a specific licence. That licence holder is required to show puppies interacting with their mothers in their place of birth. If a business sells puppies without a licence, they could receive an unlimited fine or be sent to prison for up to six months. Please see the offence under section 13(6) of the Animal Welfare Act 2006 - AW06031.
What is deemed to be in the course of a business and therefore a licensable activity, for the purpose of dog breeding specifically, is set out in paragraph 8 of Schedule 1 of the 2018 Regulations: namely; breeding three or more litters of puppies in any 12-month period; and/or breeding dogs and advertising a business of selling dogs.
This is a reduction in the ‘litter threshold’ (a term used by the Kennel Club) from 5 down 3 in any 12 month period, after which any breeding and selling becomes a licensable activity. Breeders who breed a small number of puppies (i.e. fewer than three litters per year) are deemed to be out of the scope of licensing. Likewise, rescue centres who rehome puppies are not required to be licence holders.
There is already outright prohibition in relation to breeding dogs, introduced in October 2018, within Schedule 6, paragraph 1(5), of the 2018 Regulations, which states that no puppy aged under 8 weeks may be sold or permanently separated from its biological mother.
This part of the Regulations has caused confusion as to whom it applies. It would have helped if the words ‘by anyone’ had been added to this paragraph; words which are used by the institute of licensing when advising Councils etc. on licensing and enforcement matters. To clarify, this prohibition applies to anyone and is not just a condition for licence holders. The only exemption for the separation of puppies from mothers is if it is necessary on health or welfare grounds, as per Schedule 6, paragraph 1(7), and it would be for the breeder to prove that this was the case.
It has also been alleged that the 2018 Regulations’ jurisdiction (which currently is only in England as it is devolved legislation) creates a ’loophole’ in Lucy’s Law. However, fears that the Regulations would allow cross-jurisdictional breeding and selling of puppies is misconceived. It is not possible to breed puppies outside of England and then import them into the English districts that are covered by the Regulations.
The premises for selling and/or breeding which are licensed for selling and/or breeding must be in a specific name relating to specific premises within the licensing authority’s district. The licensable activity of breeding or selling must take place in those licensed premises and not elsewhere. Those are the premises that have been inspected on behalf of the licensing authority. The licensing authority must appoint qualified inspectors to inspect any premises on which licensable activities are being carried on.
It is hoped that the changes to the Regulations will drive up the welfare standards of animals being bred for sale as pets; at least in England for now. For further information on on the enforcement of these regulations please see the Government guidance.