Memorandum submitted by the National Sheep
Association
EXECUTIVE SUMMARY
1. We consider that the draft Bill is timely,
should help to unite a great deal of legislation which has been
in place for many years and is an opportunity to remove issues
better suited to previous times.
2. Having said that, we believe the new
draft Bill should avoid the potential for introducing laws which
cut across the European Convention of Human Rights, should stand
the test of reasonableness in its widest interpretation, should
avoid the serious pitfalls of unintended consequences and should
be written in a clear, unambiguous way, open only to one interpretation.
3. In our view, as it is written it could
appear that the Secretary of State is taking a relatively academic
view of the European Convention on Human Rights, and the "right
to peaceful enjoyment of possessions" is breached in a number
of ways. For instance, it can hardly be construed as "peaceful"
to be disturbed without warrant between the hours of 5.01 am and
10.59 pm Equally, it can hardly be considered as fair that one
person (an inspector) acting on his own authority and without
a warrant can enter private premises, if necessary using reasonable
force, whatever that is, to achieve his objective. The example
given to Clause 11 Paragraph 53 where leaving a dog in a hot car
is used to identify a situation which authorises an inspector
or constable to act without the certificate of a veterinary surgeon
is clearly a matter where urgency is vital. This should not though
be used as the thin end of the wedge enabling an inspector or
constable to force entry into private or business premises without
authority of the Courts or at least a Justice of the Peace.
4. We are also unclear what is intended
by the word "inspector" and what is intended as the
prosecutor, our view being that both lack clarity and transparency.
In Clause 44 it might appear that the inspector would be appointed
by local authorities, but in the guidance provided by the Secretary
of State, the person holding that appointment would draw up a
list of persons considered suitable. It is unclear whether the
inspector would be a Government appointee or an appointee of the
local authority (although it seems that way), or would any other
organisation be involved. We are equally unhappy with the protection
given to inspectors under Paragraph 45 and question whether this
is sensible in a democracy.
NSA does not condone cruelty to animals or cruelty
caused through unnecessary suffering, however different people
will have a different interpretation of what is "cruelty",
what is "cruelty caused through unnecessary suffering"
and what is "reasonable".
UK is a democratic country and people have a
right to follow a cause without hindrance, this includes animal
rights groups of which there is known to be an extremist element.
We are therefore extremely concerned that the powers proposed
within this draft Bill to be bestowed on inspectors etc, will
give those who seek to further their own cause the opportunity
and power to do so.
We do not believe this to be the intention of
the draft Bill and in order to safeguard its credibility, and
those inspectors acting properly and in the spirit of the draft
Bill, we believe that an Independent Complaints Authority should
be set up. This would allow all complaints to be registered in
one place so that if there were numerous complaints about an individual
or area this would be obvious. All complaints should be investigated.
However, where numerous complaints are made about the same inspector
and/or area then a full investigation should be undertaken as
swiftly as possible and necessary action taken as appropriate.
5. In summary, while we believe the intention
of the draft Bill is good, we take the view that as it is drafted,
it is heavy handed to the point of being draconian, is unreasonable
and impractical in important areas, fails to address the issue
of what might be considered to be adequate and excessive powers
and in a democracy ignores the need for a proper positioning of
the onus of proof.
THE DETAIL
1. Cruelty
Under the definition set out in (1) (a)-(d),
a farmer could be accused of cruelty if a ram which was under
his control broke through a fence and attacked another ram either
in his ownership of that of a neighbours, causing it suffering
or even death. We take the view that the draft does not cater
for such an event although it is not an uncommon occurrence irrespective
of fences. As the definition is set out it would leave the farmer
unwittingly and in our view unreasonably open to the charge of
cruelty.
In 1(2)(a) a farmer having his sheep shorn could
be accused of an offence if the shearer inadvertently cut the
skin of the sheep during the process.
We believe that this is not what is intended
in the draft Bill, nevertheless these are clear examples of the
unintended consequences.
1(4)(a), (b), (c) could refer to various aspects
of shepherding most of which are dealt with under the Farm Animal
Welfare Council. As written and without reference to FAWC it would
be a problem. "We would argue that the welfare of domesticated
stock needs quite a different approach from when such animals
were in the wild state. As such they have been developed for the
purposes of man and need to be dealt with in specific ways for
their own welfare".
2. Fighting etc
We have no comment to make.
3. Welfare
(3) We would question the definition of
"abandoned". Is this a matter of hours, or days or weeks.
It is important to clarify bearing in mind the growing number
of part time livestock keepers who have to earn their living away
from their land and might see their sheep in the morning and evening.
Equally, note should be taken of stock on common grazings, ie
unfenced open land sharing grazings with others. On high hills
this can be a particular problem. Essential therefore to set out
proper definition of the word "abandoned".
(4) Whereas we agree the sentiment in (a)-(e),
we have difficulty understanding precisely what is intended by
this legislation, considering the need for precision in the litigious
society in which we now live and the fact that there are increasingly
less people with an adequate and proper understanding of farming
issues ie:
(a) This raises the question of what is a
"suitable environment". We would argue that an attempt
be made to define it. As it is set out it begs a very big question,
especially against the background that before domestication the
sheep was largely a desert animal.
(b) Need for adequate food and water. Against
the background set out in (a) above, we question what is adequate.
Again, there is a need for definition which is correct and realistic
bearing in mind the wide variation.
(c) Equally, we question what is intended
by the need to exhibit normal behaviour patterns. Again, there
is a wide disparity between hill sheep and lowland sheep, between
domesticated sheep and those which are semi feral. Bearing in
mind our litigious society the word "normal" needs to
be clarified and set down.
(d) The matter of "housing" poses
a question which needs to be clarified, as it is written it will
be open to wide interpretation.
(e) In order to protect sheep from pain injury
and disease we undertake good husbandry practices which are well
known and part of a shepherd's upbringing and training. We now
have the counterprevailing and new hazard of access to farmland
by people and disturbance by their dogs, the prospect of hydatid
cysts (domestic dogs do not have to be wormed whereas farm dogs
do). There is also the growth of legislation to protect environment
which militates against the use of external parasite controls
such as chemical sheep dips. This will also be affected by laws
of pollution including the new proposals concerning diffuse pollution.
(5) We would refer to our comments on (3)(c)
above, ie hill, lowland, domesticated and semi feral.
6. Regulations to promote welfare
Whereas we agree the concept, we believe the
various clauses confuse the fact that different rules will apply
to the separate species. We would question whether the welfare
of sheep is in any way benefited by setting out the detail in
(c) to (o) while there could be some merit in (p) and (q).
(3) We would make the point that the sheep
farming business is already having difficulty in maintaining adequate
numbers of people—numbers of farmers have reduced from just
under 100,000 to just over 60,000 in about 10 years, with obvious
consequent negative effects on landscape and environment. A further
reduction could have an adverse effect on animal and people welfare.
The proposal for more rules and regulations
fills us with absolute dread, as by far the vast majority know
perfectly well that good health and welfare contribute to a profitable
business.
7. Codes of Practice
(1) there is in our view inadequate definition
of what constitutes the "appropriate national authority",
exactly what does that mean? Is it the Government department and
if so why not say so, but if it is the national voluntary body
again why isn't this stipulated? Even so, we would argue that
a "code of practice" should be a guide as opposed to
an absolute.
We would also argue that there would be opportunity
for greater buy-in from industry if the Codes of Practice were
produced by industry rather than government.
9. Making of Codes of Practice: Wales
We advocate that this element of work should
be given to the people with appropriate specialist knowledge,
ie in the case of sheep National Sheep Association.
10. Revocation of Codes of Practice
Noted. There is a clear opportunity for Government/industry
cooperation.
ANIMALS IN
DISTRESS: GENERAL
11. Power to take possession of and retain,
animals in distress
In line with our thinking on specialisms etc,
we would argue that only a veterinary surgeon with the appropriate
specialism should only be allowed to certify for the purpose described
here. The advent of Cattle Vet Society and Sheep Vet Society as
distinct sectors within BVA bears this out. It would be totally
unacceptable for a vet with only small animal practice experience
to adjudicate on what is a very specialist operation.
(2) We would only find this acceptable if
the inspector or constable had been properly trained, examined
and passed as being fit to carry on such action by an independent,
competent certifying body.
(3) We are concerned at the concept of animals
being removed from their owner's possession, it begs the question
of where to? At whose expense? And what safeguards are there for
the owners.
(4) We would argue that there is a lack
of balance. Apparently the process is stacked against the owners
with all the powers held by an inspector or a constable. The owner's
rights would appear to be minimal with no clear redress.
(5) Even under this section, there would
be a cost to apply to the Court and a whole host of information
processes.
12. Powers to remove and care for animals
in distress
(1), (2), (3). This section raises the question
of what is considered to be an appropriate place of safety. Who
says it is? What training would be given to the constable or person
authorised by him? Again, it brings into question the rights of
owners and how would they be catered for.
(4) We would advocate the need for far greater
balance and question how this will be dealt with if the case against
the owner is lost.
13. Other powers in relation to animals in
distress
(1) We take note of the comments regarding
a protected animal and would suggest that an animal is an animal
irrespective or whether it has protected status.
(2) We would reiterate that a veterinary
surgeon would need to have appropriate, up to date specialist
training. There is also a need to define "reasonable"
in this instance.
14. Entry to search for and deal with animals
in distress
This again questions the rights of owners—it
questions why there is no reference at least to a Justice of the
Peace, it questions (5)(a) what would constitute "reasonable
grounds" and in our view reflects a most unsatisfactory concept.
Section (1) of 14 comes in before Section (5),
this being the case, he will have achieved entry and it begs the
question of why he should then revert to (5).
(6)(c)(1) begs the question of what is a conspicuous
place. Many premises have several conspicuous places—how
would they be handled?
15. Applications of sections 16-19
(2) The definition of who is to be the prosecutor
is, in our view, critical. We believe (a) is acceptable (b) is
acceptable (c) is totally unacceptable, bearing in mind that such
a person could have other interests and even a more ambiguous
agenda. This should not be accepted under any circumstances.
16. Orders in relation to animals owned or
kept by defendant
(2)(b)(c) We have already questioned what is
considered a place of safety etc.
(d) Disposing of the animal other than by
sale could mean giving it away, if so to whom?
(6) Does this include the owner? It also
begs the question of on whose evidence. We would argue that the
prosecutor's evidence would need to be corroborated otherwise
it would be unsafe.
17. Orders for disposal of animals taken
under section 11(1) or 16(1)
(1) In this case, apparently the prosecutor
would be given power to take the animal and dispose of it without
any controls.
(2) We would make the point that if the
case is lost or not proven the defendant should be allowed to
take the animal home. There is no provision for this.
(5) We question what the court would consider
to be "not reasonably practicable".
(7) We question whether a person defending
his "property", as defined by the European Convention
of Human Rights, is committing an offence.
19. Powers in connection with orders under
section 16(1) or 17(1)
(1) This could include breaking and entering,
is that intended?
(2)(a) This would appear to be a sort of
bailiff arrangement based on the authority of the prosecution.
(b) This would appear to authorise the prosecutor
to, for instance, commandeer a vehicle etc, is that intended?
(4) Does this include the owner where he
is defending his own right to property?
20. Orders under section 16 or 17: financial
provisions
It would appear that the prosecutor holds all
the cards. Do human rights apply anywhere?
38. Entry and inspection of farm premises
(1) This questions what are considered to
be reasonable hours. In another section 40(4) it allows power
of entry between 5.01 am and 10.59 pm. If a time can be set in
that part of the document why not in this one? (We would not consider
the above to be reasonable.)
39. Entry and search without warrant
(1) We are extremely concerned at the concept
of power of entry and search without warrant. This section also
begs the question of what is considered to be reasonable hours.
40. Entry and search by force without a warrant
(1), (2), (3), (4) We would reiterate our concerns
about entry and search by force without a warrant. It raises the
question of what force, does it mean armed police or armed inspectors?
Neither would be acceptable in our view as it would raise the
question of countervailing force being used by a defendant. We
question whether that is intended.
It would appear from this that between the hours
of 5.01 am and 10.59 pm a farm premises may be searched by force
without warrant and without hindrance using an uninterpreted measure
of what is considered to be reasonable force. We question whether
this is a reasonable interpretation of what is set out and what
it means in practical terms.
41. Entry and search with a warrant
The existence of search without warrant and
search by force without a warrant as set out under 39/40 and the
relatively comprehensive nature of what they encompass questions
the need for 41. We would, however, argue that 39/40 are an iniquitous
breach of a farmer's rights as a human being and that section
41 is a more acceptable approach.
PROSECUTIONS
43. Time limits for prosecutions
(1)(a) We would argue that the time limit of
three years is too long, three months would be more sensible.
(2) We would submit that evidence must be
substantiated. It is unreasonable to believe evidence without
clear proof.
INSPECTORS
It is unclear whether an inspector is a Government
appointee, a local authority appointee or someone from a non-Governmental
organisation, this needs to be absolutely clear.
45. Protection of inspectors
We would argue that an inspector with appropriate
bona fides working to instructions of the courts is acceptable.
Where, however, the inspector is working to his own agenda without
corroboration, without sanction and control of the court system,
that is totally unacceptable in a democracy.
47. Power to stop and detain vehicles
Considering that the welfare of animals in transit
is dealt with by the Welfare of Animals in Transit Order 1997
(WATO), we question the need for this section.
49. Offences by bodies corporate
We contend that the issue here is on the onus
of proof. The words consent, connivance, neglect etc must be proven
beyond any reasonable doubt for any prosecution, or offence to
be conferred.
24 August 2004
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