Conclusion and recommendation on delegated
powers
Recommendations 33 to 35
33.
The power that would be delegated under clause 6 is very broad.
We are unconvinced by the Minister's justification for the breadth
of the clause 6(1) delegated power. (Paragraphs 146 and 151)
34.
The suggestion that the mechanism of judicial review would provide
a sufficient limitation on the exercise of the clause 6(1) power
is unacceptable. (Paragraph 152)
35.
We are disappointed by the Minister's reluctance to consider redrafting
the clause 6(1) power in order to limit its breadth. We recommend
that the Government amend clause 6 so that:
- a more precise word than "promote"
is used: "ensure" seems sensible, provided that it continues
to be used in clause 3
- the appropriate national authority must certify
that any draft regulation proposed to be made under clause 6(1)
is justified either on the basis of scientific evidence or because
it meets a genuine welfare need evidenced by the consultation
process on the proposed draft regulations. (Paragraph 155)
We do not accept that the regulation-making powers
contained in the Bill are unreasonably broad. Similar regulation-making
powers for promoting the welfare of farmed animals are already
conferred on Ministers under section 2 of the Agriculture (Miscellaneous
Provisions) Act 1968 and have thus been in existence for over
thirty years. The absence of a similar power to promote the welfare
of non-farmed animals is an anomaly that the Bill is designed
to address. Given the complexity of animal welfare, it is highly
appropriate that this provision should be framed as a regulation-making
power. As a result of the need to use primary legislation to update
the law for non-farmed animals, there has been a widening gap
between the welfare standards that apply to farmed and non-farmed
animals. We believe that the Bill addresses this in the most appropriate
and direct way. In deciding whether to make regulations, codes
or to use other means to promote animal welfare, we will of course
need to follow general principles concerning the proper use of
legislative powers, including the need to ensure that the degree
of regulation is proportionate and not excessive.
We judge that the use of the word 'ensure' in this
clause would be inappropriate. It would be impossible to say that
any set of regulations would 'ensure' welfare. The Bill therefore
enables regulations to be made which 'promote the welfare of animals'
and restricts the scope of regulations to those which move the
welfare of animals in a positive direction. The concepts of "promote"
and "ensure" differ and, whereas in some instances one
will be broader than the other, an obligation to "ensure"
a given result could preclude the making of any regulations, thus
reducing opportunities to improve animal welfare.
We do not consider that certification is necessary.
Consultation, pre-legislative scrutiny where appropriate, and
parliamentary debate will ensure that any proposals from the Secretary
of State are fully debated in an open and transparent fashion.
While we shall take into account the latest scientific evidence
when assessing the level of regulation that should apply to a
particular activity, there are other issues such as good practice
that we shall also need to consider. Any regulations introduced
must be for the purpose of promoting the welfare of animals in
accordance with subsection (1).
Recommendation 36
We recommend that clearer requirements about the
way in which licensing powers are to be exercised should be included
on the face of the legislation, rather than being left for the
appropriate national authority to specify under delegated legislation.
It should be clearly stated that the licensing authority has the
power to attach welfare conditions to a licence and to revoke
a licence. The legislation should also require the licensing authority
to have regard, in issuing a licence, to relevant guidance laid
down in the form of codes of practice issued by the appropriate
national authority under clause 7. (Paragraph 161)
We accept that there should be clear requirements
on the face of the Bill concerning licensing and registration,
and will accordingly include more detailed provisions. These clarify
the roles and powers of local authorities, as well as the Secretary
of State and the National Assembly for Wales, and will be contained
in a separate clause on licensing and in a new schedule.
Recommendation 37
We recommend that the Government re-examine the
issue of whether the degree of detail in clause 6(2) could potentially
circumscribe the generality of the clause 6(1) delegated power
in ways which the Government does not intend. (Paragraph 163)
We accept this recommendation and will amend the
subsection so that there is a clearer link between this clause
and the welfare clause by referring to the needs listed in the
welfare clause. The appropriate national authority will be able
to introduce regulations giving more detail as to the needs and
how they should be met in specific circumstances. We agree that
the published draft of subsection (2) could inadvertently have
curtailed the power in subsection (1) and we have now overcome
this problem.
Recommendation 38
We recommend that the Government amend clause
1 so as to require the appropriate national authority to certify
that any draft order proposed to be made under clause 1(5) is
justified either on the basis of scientific evidence or because
it meets a genuine welfare need evidenced by the consultation
process on the proposed draft regulations. (Paragraph 166)
Consultation, pre-legislative scrutiny where appropriate,
and parliamentary debate will ensure that any proposals from the
Secretary of State are fully debated in an open and transparent
fashion. As mentioned above, there are issues other than scientific
evidence which it will be necessary to consider before regulations
can be introduced. We do not consider that certification is necessary.
Recommendations 39 to 42
39.
We endorse the inclusion of a duty for the appropriate national
authority to consult on any draft code of practice which the authority
proposes to make under clause 7, as set out in clauses 8(1)(b)
and 9(1)(b). We believe that an obligation to consult on draft
codes of practice should improve the quality and relevance of
the final codes. (Paragraph 175)
40.
Given the Government's readiness to include a duty to consult
on draft codes of practice, we are extremely disappointed by the
Minister's refusal to include a parallel duty to consult on draft
regulations. Regulations made under clause 6(1), and orders made
under clause 1(5), will form part of the law of the land—regulations
made under clause 6(1) may create criminal offences and repeal
primary legislation, amongst other things—whereas codes
of practice will exist primarily for the purpose of guidance.
We do not accept the Minister's argument that, as Defra intends
to consult on draft regulations anyway, there is nothing to be
gained by including a requirement to consult on the face of the
Bill. The Cabinet Office code of practice has no legal force and
cannot require government departments to consult; nor is there
any obligation for the National Assembly for Wales—an appropriate
national authority under clause 6(1) and clause 1(5)—to
adopt the code of practice. If the Minister intends to consult
appropriately on all draft regulations anyway, he can have no
objection to a requirement to consult being included on the face
of the draft Bill. (Paragraph 176)
41.
We recommend that clause 6 should be amended to place a duty on
the appropriate national authority to consult on any draft regulation
which the authority proposes to make under clause 6(1). This duty
should be in equivalent terms to the duty for the appropriate
national authority to consult on any draft code of practice which
the authority proposes to make under clause 7, as set out in clauses
8(1)(b) and 9(1)(b). (Paragraph 177)
42.
Likewise, we recommend that clause 1 should be amended to place
a duty on the appropriate national authority to consult on any
draft order which the authority proposes to make under clause
1(5). This duty should be in equivalent terms to the duty for
the appropriate national authority to consult on any draft code
of practice which the authority proposes to make under clause
7, as set out in clauses 8(1)(b) and 9(1)(b). (Paragraph 178)
We accept this recommendation. We will insert a duty
to consult.
Recommendation 43
We suggest to Defra that, if it intends to continue
to use working groups to formulate animal welfare policy, then
it would be well-advised to formalise the process by which the
groups' membership and programme of work is decided, in order
to ensure transparency and build confidence in the quality of
those undertaking this work. (Paragraph 179)
The criteria for the working groups on the secondary
legislation were that the members should reflect as broad a range
of opinion as possible and be capable of working constructively
with people who hold differing views. We accept that in one or
two cases, some groups have felt excluded from what, by its nature,
cannot be a totally inclusive process. However, we consider that
these criteria should continue to be used as far as possible,
although we recognise that there could be occasions where it may
be necessary to depart from them. To put in place a formal selection
process based on Nolan procedures would be excessively resource
intensive for temporary working groups that only meet a few times
and whose output is subsequently subject to public consultation.
Recommendations 44 and 45
44.
We recommend that the Secretary of State agree to enter into a
'memorandum of understanding' with this Committee, undertaking
to:
- publish in draft form any regulation proposed
to be made under clause 6(1) or order proposed to be made under
clause 1(5)
- inform the Committee of such publication
- allow the Committee a period of 30 sitting
days in which to report to the House on the draft instrument
- agree that no motion to approve may be made
until either the period of 30 sitting days has elapsed or the
Committee reported to the House on the draft instrument, whichever
occurs first.
The memorandum of understanding should make it
clear for what period of time such an arrangement should apply.
It should also provide for the possibility that an exception could
be made to this arrangement in circumstances of genuine emergency.
(Paragraph 184)
45.
If such a process were adopted, the Committee would have flexibility
to decide either to call for evidence on the draft regulation
or order and to examine it thoroughly, or to decide at an early
stage that the draft regulation or order did not warrant a thorough
examination and to report to the House that it had no matters
to raise. (Paragraph 185)
We agree with the Committee that pre-legislative
scrutiny is likely to be beneficial in these sensitive areas,
and are grateful to the EFRA Committee for its offer of assistance.
We wish to consider further the right mechanism for taking this
forward and will wish to discuss with the authorities of the House
of Lords as well as the EFRA Committee.
Conclusion and recommendation on enforcement,
prosecution and penalties
Recommendation 46
We recommend that the clauses on enforcement should
be set out in the draft Bill as they would occur chronologically.
The current arrangement of the enforcement provisions in the draft
Bill does not follow a logical sequence, is unduly complicated
and is difficult to follow. (Paragraph 190)
We accept this recommendation. The order of the clauses
on enforcement will be improved, with a simpler structure that
deals in sequence with emergency powers, powers of entry and inspection,
prosecutions and orders which may be made upon conviction.
Recommendation 47
Defra has acknowledged that the period for which
an animal taken into possession can be retained needs to be reviewed.
We recommend the retention of the existing legal position, whereby
there would not be a time limit on the retention of an animal
in distress but its owner would have the immediate right to apply
to court for its return. (Paragraph 195)
We accept this recommendation. The scheme for taking
animals in distress into possession will be altered. There will
no longer be any time limit for their keeping. The owner or other
person with a sufficient interest in the animals will be able
to apply for their release at any time after they are taken into
possession. The Bill will allow action in an emergency, with an
appropriate power of entry in support of these powers. There can
be an application for the release of an animal at any stage, and
the court will be able to make orders in relation to animals which
have been taken into possession under the emergency powers. We
feel this scheme provides protection for animals whilst at the
same time protecting the rights of those with an interest in the
animal, and preserves the role of the court whilst seeking to
avoid unnecessary applications.
Recommendation 48
We recommend that the current provisions on reimbursement
of reasonable costs in the Protection of Animals (Amendment) Act
2000 should be reflected throughout the draft Bill, so that inspectors
and prosecutors are able to be reimbursed only for reasonable
costs incurred by them in the performance of their functions under
the Bill. (Paragraph 199)
We will amend the draft Bill so that the Magistrates'
court may order that the person who incurs expense in dealing
with a distressed animal may be reimbursed. It will be for the
court, on the basis of the evidence put before it, to decide the
amount to be reimbursed and by whom. We do not consider it necessary
to put on the face of the Bill that the court should only order
reasonable expenses to be reimbursed since as a public body the
court has a duty to act reasonably in any event.
Recommendation 49
We are satisfied it is appropriate that constables
and inspectors should be empowered to authorise the killing of
a protected animal where there is no reasonable alternative. However,
we consider that constables and inspectors would be greatly assisted
in their functions if the term "reasonable alternative"
was defined in the Bill. Furthermore, we seek assurances from
the Government that those persons tasked with animal inspection
work will be properly trained in animal behaviour so as to recognise
when it will be necessary to kill an animal; constables and inspectors
should also be trained to kill an animal in as humane a way as
possible. (Paragraph 203)
We do not consider that the term 'reasonable alternative'
is capable of further definition. We cannot foresee all the situations
which might present themselves, and an element of discretion needs
to be given to those dealing with emergencies. What is reasonable
in each case will depend on all the facts and is best assessed
by the inspectors and constables on the ground at the time. Some
inspectors will be qualified veterinary surgeons and will therefore
have received relevant training. Clearly it would be a good idea
for local authority officers and the police to receive training
in how to deal with suffering animals in an emergency and we will
be considering how best to achieve this.
Recommendation 50
We consider that the powers contained in clauses
39 and 40 are appropriate. We believe that the serious nature
of offences against animals justifies empowering constables and
inspectors to enter premises, other than premises used solely
as private dwellings, without a warrant on the basis of reasonable
suspicion or belief that an offence is being or has been committed
or that evidence of a relevant offence is on the premises. (Paragraph
206)
The draft Bill will be amended so that premises may
only be entered for the purposes of searching for evidence of
a suspected offence under the authority of a warrant. This change
has been made after careful consideration of human rights law
in this area. Recent authority, including the case of Camenzind
v Switzerland RJD-III 2880 states that powers of search and
seizure must be proportionate and subject to adequate safeguards.
In that case, the European Court of Human Rights said that it
would be particularly vigilant where national law allowed searches
without judicial warrant and stated that very strict limits on
such powers are necessary in order to protect individuals from
arbitrary interference.
We have taken the view that, given the general approach
to search and seizure in the Police and Criminal Evidence Act
1984, it would be difficult to justify a power to enter without
a warrant to search for evidence of offences under the Bill, where
no similar power was necessarily available in relation to other,
possibly more serious offences.
Recommendation 51
To avoid confusion, we recommend that the Government
amend the Bill to clarify what is meant by "any part of premises
which is used as a private dwelling." (Paragraph 208)
The phrase used in the Bill is 'entry into any part
of premises which is used as a private dwelling'. We do not consider
this to be ambiguous. The antecedent of "which" is "part".
In other words, if there is a part of a dwelling which is not
used as a private dwelling, such as an office in the garage, then
there might be a right of entry without a warrant in respect of
this part. The phrase therefore takes the meaning in the second
bullet point of paragraph 207 of the report, and the assumption
in paragraph 208 is incorrect.
Recommendation 52
We endorse the underlying intention of the powers
of entry in the draft Bill, namely that inspectors and constables
should not be permitted to enter a private dwelling unless they
have first obtained a warrant. We recommend that the Bill should
provide greater powers of entry so that entry would not be permitted,
without a warrant, to premises used only as a private dwelling.
This would allow inspectors to enter premises used as both business
premises and private dwellings, such as farm premises, without
a warrant. (Paragraph 214)
We do not agree with this recommendation, though
we know that such a provision is to be found in other legislation
and we appreciate that LACORS, in particular, have requested this
power. We take the view that, in order to protect occupiers of
private dwellings, it is appropriate to require inspectors to
obtain a warrant if they wish to enter parts of the dwelling used
partly for business purposes and partly as a home. So, for example,
where a farmer keeps his records in the kitchen, then it is inappropriate
to allow entry against the will of the occupier without a warrant.
Even though the kitchen may not be used only as a dwelling,
that is still one of its uses. Furthermore, entry into such a
room might involve walking through other more private parts of
a home, and we therefore feel that a warrant is appropriate to
protect the inspector against allegations of unlawful entry into
those parts, as well as to protect the rights of the occupier.
Recommendation 53
We recommend that the Government give consideration
to implementing the suggestion made by the Association of Chief
Police Officers that one set of justifications should be adopted,
instead of different powers in different statutes, setting out
the circumstances in which a private dwelling may be entered without
a warrant. (Paragraph 215)
We will forward this recommendation to the Home Office.
It is outside the scope of this Bill.
Recommendation 54
Given that both inspectors and constables will
be exercising the powers of entry and search under the draft Bill,
we recommend that the draft Bill should be amended to include
a requirement that the codes of practice issued under the Police
and Criminal Evidence Act 1984 in connection with the exercise
of those powers should be complied with when exercising search
and entry powers under the Bill. (Paragraph 218)
The codes of practice in PACE which relate to search
and seizure are applicable to the police only and are drafted
as such. They are not suitable for use in connection with powers
under this Bill. We do not object in principle to drawing up a
similar code for searches under the Bill but this cannot be done
immediately. In any event, the requirements of sections 15 and
16 of PACE do apply to applications for, and execution of, warrants
under the Bill. In addition, Schedule 2 of the Bill contains other
safeguards.
Recommendations 55 and 56
55.
As currently drafted, there is nothing in the draft Bill to prevent
an RSPCA inspector, or an employee of any other charitable organisation,
from being appointed as an inspector under the legislation, because
the Secretary of State is not prevented from including them on
a list of suitable persons. We have only Defra's stated intention
that the list will extend to only the State Veterinary Service
and local authorities. If this is indeed Defra's intention, then
we recommend that it should be specified on the face of the Bill.
Currently, the draft Bill effectively delegates an unlimited power
to the Secretary of State to decide who may act as an inspector.
At the very least, the Bill should specify the appropriate categories
of person or 'characteristics' of persons who may be appointed
to the role. We further recommend that the draft Bill be amended
to specify how inspectors will be appointed in Wales: currently,
clause 44 makes reference only to the Secretary of State; no mention
is made of the National Assembly for Wales. (Paragraph 224)
56.
We believe that the RSPCA has performed a valuable role in ensuring
animal welfare, and that it should be encouraged to continue to
do so. Nevertheless, it is a ultimately a charitable body and
therefore should have a separate and distinct role from "inspectors"
appointed to enforce the draft Bill. To avoid confusion with the
RSPCA's own inspectors, we recommend that the Government consider
changing the term "inspector" in the draft Bill to "approved
person", "approved officer", or some other term
that sits appropriately with relevant legislation. (Paragraph
226)
The term 'Inspector' for those appointed by the Secretary
of State and local authorities is prevalent throughout animal
health legislation and we judge that to use different terminology
in this Bill would be more confusing rather than less.
The draft Bill will be amended to deal with appointment
of inspectors in Wales.
We do not expect RSPCA Inspectors to be appointed
as inspectors to undertake work on behalf of local authorities.
But if they are so appointed, they, like any person appointed
by the local authority to inspect on its behalf, will be accountable
to the local authority for their behaviour and performance in
that capacity.
Recommendation 57
We recommend that the draft Bill should be amended
to ensure that the standard with which an inspector must comply
in order not to be held criminally or civilly liable is the same
as the standard applied to constables exercising equivalent powers.
(Paragraph 228)
The relevant clause seeks to protect inspectors acting
in good faith against personal liability. We wish to retain this
protection. There are precedents for this approach, for example
in the Food Safety Act 1990. This approach is seen as particularly
important in the field of animal welfare, since inspectors may
need to act swiftly and on their own initiative in order to protect
an animal from suffering. In addition, provided an inspector is
acting in good faith and reasonably, then it is unlikely that
a tort or crime has been committed. However, we will redraft the
clause to make it clear that this protection is only afforded
to the inspector personally, and not, for example, to the local
or national authority that employs him and which could still be
vicariously liable for his actions in the course of his employment.
Recommendation 58
We consider that it is imperative that there is
consistency in animal welfare enforcement between local authorities.
It is most unsatisfactory and inequitable to have different standards
of enforcement in different regions. We therefore recommend that
the Government should adopt a system, such as a database, to ensure
that enforcement across licensing departments in England and Wales
is consistent. The information should be entered and held by local
authorities. Although the RSPCA should be permitted to have access
to the information, we consider it wholly inappropriate that the
RSPCA should be given responsibility for compiling and maintaining
the database. (Paragraph 233)
We agree that consistency in enforcement standards
is important and that the establishment of the database would
assist local authorities in raising enforcement standards and
achieving a greater degree of consistency in the quality of their
enforcement work. Any database would be held by central government.
We will be looking at ways to improve data sharing between enforcement
agencies, consistent with data protection legislation. RSPCA inspectors
and prosecutors would have access to the database on an individual
basis, rather than the entire organisation obtaining access.
Recommendation 59
We recommend that provision should be made to
provide that compensation may be made available to persons whose
animals have been dealt with under clauses 16 or 17 but who have
subsequently been acquitted of any animal welfare charges. The
draft Bill should be amended to specify and limit the circumstances
in which a court can order the slaughter of an animal. It should
specify that the court can make such an order only where no reasonable
or humane alternative exists. (Paragraph 236)
We consider that a power to remove animals in an
emergency is extremely important in order to provide adequate
protection where necessary. We therefore feel that the provisions
in the Bill are an improvement on the present very restricted
powers of protection to be found in the Protection of Animals
Acts.
In the Bill, the powers to deal with animals
in distress and the power of the court to make orders in relation
to animals removed in an emergency are no longer linked to the
existence or otherwise of prosecutions.
If an owner or keeper feels that his animal has been wrongly removed
or should no longer be retained, he may apply to the court at
any time for its return. No compensation would ordinarily be payable
following a successful application for the return of animals removed
using powers in the Bill if the defence of statutory authority
is available.
Obviously, however, there is a need to exercise this
power in a reasonable and proportionate manner, and compensation
could therefore become appropriate if it was established that
the power had been exercised unreasonably. We hope that such cases
will be extremely rare, but if this should occur the claimant
would be able to bring an action under existing procedures.
If an owner or keeper is aggrieved at an order made
by a court in relation to an animal which has been removed, then
the appropriate remedy would be to appeal against that order.
It is suggested that the draft Bill should be amended
to state specifically that the court may only order the slaughter
of an animal removed in an emergency where no reasonable humane
alternative exists. We consider that it is highly unlikely that
a court would make such an order if a reasonable alternative did
exist. However, we are unwilling to tie the hands of the courts
by inserting such a provision since it is impossible to foresee
all the different sets of circumstances which may present themselves,
and it is felt that the courts should be relied upon to make reasonable
orders taking into account all relevant factors. If an order is
felt to be unreasonable then the owner or keeper is protected
by his right of appeal. In addition, the courts are bound to act
in accordance with the Human Rights Act 1998 and will be mindful
of this duty.
Recommendation 60
We consider that improvement notices would assist
in ensuring that proceedings are commenced only in appropriate
cases. They would not only save court time but could also encourage
owners to improve standards of animal welfare. We recommend that,
although enforcement agencies should have a discretion to issue
improvement notices for protected animals, that discretion and
the relevant procedural requirements should be specified on the
face of the Bill. This should include a right of appeal on the
part of the person to whom an improvement notice is issued. (Paragraph
242)
We have considered carefully whether it would be
appropriate to include a requirement for improvement notices and
agree that in general those responsible for animals should be
given a clear indication of what they need to do to avoid prosecution
under the welfare offence. Prosecution should be the last resort.
This is in keeping with guidelines on enforcement. However,
we also believe that prosecutors should have the discretion
to proceed directly to a prosecution if that is what is required
in the circumstances.
Since this is a common informers' offence we do not
judge it appropriate to place a requirement to issue notices on
the face of the Bill. The difficulties of ensuring consistency
and quality control over the contents of formal improvement notices
issued by private prosecutors would detract significantly from
their value to the recipient. However, we note the RSPCA's commitment
to providing suitable advice before proceeding to prosecution,
and public authorities which prosecute will continue to follow
the relevant guidance which requires the service of a notice setting
out the recommended steps to be taken. Inspectors' powers to issue
improvement notices in relation to farmed animals will not be
affected.
Recommendation 61
We recommend that clause 15(2)(c) be deleted from
the Bill if the Government is unable to demonstrate a convincing
reason for its inclusion. The Government should explain to whom
it intends the powers of a prosecutor would be delegated under
clause 15(2)(c) if it is not to the RSPCA. We consider it wholly
inappropriate that prosecution powers under the draft Bill should
be able to be exercised by any organisation other than the Police,
the State Veterinary Service and local authorities. (Paragraph
250)
This point reflects a misunderstanding. Clause 15(2)(c)
referred to agreements along the lines of the agreement with the
RSPCA under the Protection of Animals (Amendment) Act 2000. The
2000 Act agreement did not give power to prosecute, but power
to make additional applications for disposal orders in relation
to a commercial animal that was the subject of an ongoing prosecution.
The RSPCA has always had the power to prosecute for offences under
the 1911 Act and will continue to be able to prosecute under the
Bill. Clause 15(2)(C) of the draft Bill has been superseded, and
provisions relating to written agreements with the Secretary of
State will appear in the clauses that deal with applications for
orders relating to animals seized under the emergency powers.
Recommendation 62
We consider that the RSPCA should be able to continue
to institute private prosecutions on its own behalf. (Paragraph
258)
We agree with this recommendation. It was never our
intention to remove the power for the RSPCA to bring a prosecution.
Recommendation 63
We consider that the gravity of the offences under
the draft Bill should be reflected in increased sentencing powers.
We recommend that certain offences should be triable 'either way'—that
is, either summary or indictable—in order to give the courts
the ability to impose longer sentences in appropriate cases, and
we urge Defra to take this matter up with the Home Office. The
offences which should be triable 'either way' should be the clause
2 fighting offence and the most serious cruelty offences under
clause 1. We note that such offences would necessarily involve
premeditation, whereas a welfare offence might not necessarily
be intentional. (Paragraph 264)
We have consulted further with the Home Office who
have confirmed both that the sentences are proportionate and that
there is no evidence for pressure from courts for sentencing powers
that go beyond those contained in the draft Bill (see the written
memorandum sent to the Committee by the Magistrates' Association
Sentencing Committee).
The Committee highlighted a seeming anomaly that
theft of an animal would be an offence triable either way, whereas
cruelty to an animal would not. However, the law on theft applies
to theft of any object, not just animals, and so has to be triable
either way to ensure that the most serious cases can go to Crown
Court.
Recommendation 64
We welcome the Government's intention to close
the loophole in the current provisions on disqualification by
ensuring that an offender cannot circumvent disqualification by
transferring ownership and, therefore, custody of an animal. However,
we consider that clause 26 does not achieve this intention and
we therefore recommend that the activities prohibited by clause
26 of the draft Bill should be extended to include "having
custody, control or the power to control animals". (Paragraph
267)
The current power to disqualify is a power to disqualify
from having 'custody' of animals. The court has no power to disqualify
a person from owning animals at the moment. Therefore, it is not
the case that owners need to transfer 'ownership and therefore
custody' in order to evade disqualification, as stated by the
Committee report.
We do not wish to retain the term 'custody', since
this is the term which enforcement authorities currently have
difficulty in interpreting. The clause will be redrafted to include
an option allowing the court to disqualify a person from 'being
party to an arrangement under which he is entitled to control
or influence the way in which animals are kept.'
Recommendation 65
We recommend that fighting should automatically
attract a disqualification order. We further recommend that certain
animal cruelty offences carried out for a profit, such as making
'snuff' videos, should also attract automatic disqualification
to reflect the seriousness of the offence (Paragraph 269).
Automatic disqualification prevents the courts from
imposing sentences and orders which are proportionate and suited
to the facts of the case. We resist the idea of mandatory disqualification
orders, particularly as a disqualification engages the rights
set out in article 1 of the first protocol to the ECHR (right
to peaceful enjoyment of possessions). Such automatic orders could
be disproportionate and breach those rights.
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