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( ) he is of the opinion that a veterinary surgeon needs to examine the animal to treat it or to determine the extent of its suffering for evidential purposes; or'.
'( ) produce to him a sealed copy of the notice to the court of his intention to apply for an order or a copy of the order made under section 2;'.
'(b) state orally or in writing his reasons for entering, and if reasons are given orally confirm those reasons in writing within 14 days of entering'.
Mr. Maclean: The amendment seeks to limit the powers in clause 3 by removing subsection (1). The other part of the clause allows a right of entry to a prosecutor, once he or she has a court order. However, subsection (1) gives the prosecutor, who may be any designated organisation or private person, the right to enter private premises even before he or she has a court order.
There may be practical reasons why the Minister will say that people must be given that power of entry to prevent those concerned from evading the law or covering up malpractice or abuse. However, I believe that it may be an excessive power to grant to private individuals in advance of a court order. It is one thing to go to court, get an order to enter premises and then take the action specified in the Bill, but the Bill empowers someone who merely notifies the court that he or she intends to apply for an order. They then have the right to enter any premises in which animals are kept and to mark them.
The explanatory notes say that the Bill complies with the European convention on human rights. May I press the Minister on that? I know that he cannot reveal his legal advice--that is not Government convention--but I
Mr. Dismore: My first amendment addresses a lacuna in clause 3. Clause 2 refers to the evidence of a veterinary surgeon being presented to the magistrates court. That evidence is at the heart of the Bill, but to provide it, the vet would have to examine the animal--it would be hard to base that evidence on a photograph, for example. Clause 3 gives the prosecutor the power to enter premises, but for the purposes of marking or identifying the animal, not for the purposes of examining the animal to obtain the evidence needed under clause 2. I therefore propose that one of the reasons for entry can be to examine the animal, if necessary to treat it as a matter of urgency, and thereafter to determine the extent of its suffering, so that the vet can ultimately provide evidence to the magistrates court.
Another amendment would remove subsection (4). I can see why people are reluctant to grant prosecutors the power to enter a dwelling house, but I am concerned that the owner of a mistreated animal might simply pick it up, run into house, shut the door and thus foil the attempt of the prosecutor to gain access to the animal to determine its state of welfare, to examine it or to identify it. That is a loophole, especially because the sort of people who will be affected by the legislation are likely to try to find ways around it. Most people who own animals know that it is in their interests and those of the animals to look after them properly, but the Bill will deal with the few people who fail to do that, and people so despicable are likely to do all they can to avoid the impact of the law.
My next amendment would slightly alter clause 3(5)(b) and provide that the prosecutor need not state his reasons for entry in writing. We are considering an emergency power and I am anxious to ensure that we do not get bogged down in bureaucracy and red tape. If the animal needs to be looked after, the prosecutor should be able to give his reasons orally, go and care for the animal, and thereafter, if necessary, follow that up in writing. Obviously, if there is time to give written reasons in advance, so much the better, but I can envisage cases in which there is no time to do that. It strikes me that such matters can be followed up afterwards: as long as the owner of the animal gets a written explanation in the long run--a couple of weeks strikes me as fair--that should be satisfactory.
Mr. Morley: The amendments express contrasting objections. I can provide some reassurance about entry into private property. Such entry is limited to marking animals for identification purposes, which is necessary for an application to be determined or for the care order to be made in a sensible form. For example, on some holdings
With regard to the European convention on human rights, the test for granting powers to enter private property is that that power should be proportionate and necessary. The amendments moved by my hon. Friend the Member for Hendon (Mr. Dismore) are too broadly drawn and would fall foul of the convention. The powers specified by the Bill are proportionate and meet the case in point.
It is reasonable that those acting on the measure should have written evidence with them. I know that my hon. Friend considers that too restrictive, and that the right hon. Member for Penrith and The Border (Mr. Maclean) and his colleague, the right hon. Member for Bromley and Chislehurst (Mr. Forth) think that the provision on written evidence should be tightened up. I make it clear that the people approved by the Ministry to do such work would carry written evidence with them as a matter of routine. That is not unreasonable and would demonstrate that they had the authority of the court and were acting on the authority of the Ministry. For that reason, I consider the amendments unnecessary.
'and the prosecutor shall be under a duty to maximise the proceeds of any such disposal in each case.'.
'(2A) Where an order has been made under section 2 and the owner successfully defends the proceedings under section 1 of the 1911 Act, the court shall have power (in addition to the power to award costs) to require the prosecutors to recompense the owner a fair value for the loss (including economic loss) he has suffered as a result of the exercise of the powers conferred upon the prosecutor by virtue of the order.
(2B) Any amount for which the owner is entitled to be reimbursed or compensated for under subsection (2A) may be recovered by him from the prosecutor summarily as a civil debt.'.
Mr. Maclean: I shall speak briefly, without recycling the amendments, as the Minister has had a chance to consider them. They put an obligation on the prosecutor to maximise the proceeds of any disposal or sale of the animals. Amendment No. 8 would further ensure that if the prosecutor fails to bring a prosecution or does not bring a prosecution successfully, he should compensate the owner whose animals he has confiscated at a fair value for the loss, including the economic loss.
Just as clause 4 perfectly legitimately entitles the prosecutor to recover his costs and expenses from the person who owns or controls the animals, if the prosecutor gets it wrong and fails to win his case, it seems fair that the person who owns the animals and from whom they were confiscated should get full compensation.
Mr. Morley: The topic generated some discussion in Committee, and I understand the concerns that were raised about owners who may be acquitted and what they may get back if the animals are sold. I have consulted in detail and I shall try to respond in detail.
With reference to the provision allowing the defendants when acquitted to recover any costs suffered, the application for a care order and a subsequent trial are separate procedures, as the right hon. Gentleman will recognise. The care order provides urgent protection for animal welfare at the time that information is laid before the court. The test for a care order is different from and less stringent than the test applied for a subsequent trial.
That ensures that the process of securing a care order does not pre-judge the trial. No attempt to establish a defendants's guilt or innocence will be attempted when a care order is sought. In deciding when to grant a care order, the court must consider the welfare of the animal, as well as the interests of the owner. Whether it is beyond reasonable doubt that an offence of cruelty has been committed is not an issue at that stage. That would have implications for human rights legislation and would impose an unnecessarily demanding test before action could be taken to protect animal welfare. The object to take action quickly to ensure that the welfare of animals is not compromised.
Acquittal in a subsequent trial does not mean, therefore, that the care order should not have been granted. There is no connection between that and the trial. The process is reinforced at each stage by safeguards to prevent malicious prosecutions resulting in care orders, and to protect the interests of the owner. The prosecutor must decide whether to bring a prosecution and must apply for a care order under the Protection of Animals Act 1911, which contains safeguards, as the right hon. Gentleman knows. On application, the court will consider whether a care order was required for the good of the animals. If so, action must be proportionate, and the owner's interests will be considered in court.
A further stage-by-stage safeguard deals with the point about the expenses that are incurred by prosecutors, who subsequently try to recover them, and whether those expenses can be limited to reasonable amounts. The safeguard involves a calculation, when applicable, of the difference between the amount of the reasonable expenses and any proceeds from sale or slaughter. The approved prosecutor recovers reasonable expenses after deducting the proceeds of any sale, or the owner recovers the net proceeds. The court decides whether the steps taken and the costs incurred were reasonable. The court can also take into account whether the price of any sale was fair. That double checks the process that takes place during the application for a care order under clause 2(3).
The court's authorisation of the order must take into account any avoidance of increased costs. Each part of the invoice can be scrutinised to ascertain whether that has happened. In the event of an acquittal, I am advised that it would be legitimate for the defendant to ask the court to