Memorandum submitted by the Society of
Conservative Lawyers
The following evidence is an extract taken from
the Society of Conservative Lawyers' full memorandum.
EXECUTIVE SUMMARY
This Submission to the Environment, Food &
Rural Affairs Sub-Committee is made by James Pavey and Simon Murray,
respectively a litigation solicitor and a barrister, whose practices
incorporate criminal litigation and public law litigation in the
wider sense. Both have experience of conducting animal welfare
litigation under the current, Protection of Animals Act 1911 regime.
In addition, James Pavey has advised stakeholders in the consultation
process with Defra for secondary legislation on animal fairs under
the draft Animal Welfare Bill.
This Submission raises a significant number
of concerns with the draft Animal Welfare Bill launched on 14
July 2004. These include:
— Lack of clarity in the drafting scheme:
eg, the definition of "protected animal".
— Possible unintended consequences
of the legislation: eg, whether the Bill will, inadvertently,
criminalise fishing.
— The scope of the secondary legislation
that could be made under the Bill, if enacted.
— The unprecedented delegation of powers
of investigation and prosecution to private and unaccountable
bodies, such as the RSPCA.
— The absence of objective justification
by Defra for the severity of penalties for offences.
— The balance that the draft Bill strikes
between human rights (eg, to property) and human responsibilities
towards animals.
If enacted in its current form, the draft Bill,
through its wide application and severity, will constitute a deterrent
to the keeping of pet animals in particular. We question whether
this will, in the long term, improve standards of animal welfare,
if fewer people have experience of animal keeping.
1. GENERAL CONCERNS
1.1 Before turning to the AWB on a clause-by-clause
basis, we have set out a number of general, headline concerns
about the scheme, the effects and the implications of the AWB.
A. "Protected animal" v "animal"
1.2 Clause 53(1) provides that, subject
to qualifications within clause 53, "in this Act `animal'
means a vertebrate other than man."
1.3 Clause 54(2) of the draft AWB provides
that, "An animal is a `protected animal' for the purposes
of this Act if:
(a) it is of a kind which is commonly domesticated
in the British Islands, or
(b) it is not of such a kind but:
(i) is being kept by man;
(ii) has ceased to be so kept but is
not (or not yet) living in a wild state; or
(iii) is temporarily in the custody or
control of man."
For completeness, "An animal is `kept by
man' for the purposes of this Act if there is a person who owns,
or is responsible for, or in charge of it." (Clause 54(3).)
1.4 Explanatory Note 206 says that clause
54(2) "defines the expression `protected animal' which is
what sets the boundary of the application of the offences under
the clause. Broadly, animals of a kind which are commonly domesticated
in the British Isles will be within the protection of the offences.
This category includes most pets and farmed animals. Non-domestic
animals are only protected in specified circumstances and not
if living in a wild state."
1.5 There appears to be significant confusion
in the application of the draft AWB's provisions to animals and
protected animals. Clauses 1(1) and clause 1(2) appear to provide
the basic cruelty offences—though see below as to the lack
of clarity in clause 1. Clause 1(1) clearly applies the offence
of causing unnecessary suffering by act or omission with actual
or constructive knowledge to a "protected animal" (sub-clause
1(1)(d)). However, clause 1(2) makes it an offence for the keeper
of "an animal" to permit another to cause it unnecessary
suffering. Is the distinction between the two offences deliberate?
Or is the point that, if an animal has a keeper, it must be "protected"?
1.6 The clause 3 welfare "duty of care"
is explicitly applied to an "animal", not merely a "protected
animal". It may follow that, if the potential offender is
"a keeper of an animal", the "animal" must
logically be a "protected animal", by virtue of clause
54(2)(b)(i). Again, however, it is unclear: tautology would be
better than lack of clarity.
1.7 For clarity and, in particular, as the
offences and the powers contained within the draft AWB engage
Convention rights, Defra is invited to re-submit the draft Bill
to Parliamentary Counsel to clarify this confusion in the drafting.
If the drafting scheme works in this regard, it is too subtle
to be easily comprehensible; if it does not work, it clearly needs
amendment.
B. Human Rights Act 1998
1.8 Explanatory Note 219 to the draft Bill
indicates that "[t]he Secretary of State is satisfied that
the draft Bill is compatible with the European Convention of Human
Rights". This foreshadows the Secretary of State's formal
obligations under s19 Human Rights Act ("HRA") 1998
to make a statement of compatibility.
1.9 Explanatory Note 221 on Article 1, First
Protocol (the "right to property")[1]
is revealing: the powers in the draft Bill "to deprive a
person of his animals or to destroy them, are justified in interests
of animal welfare, provided the powers are exercised in a proportionate
manner" (emphasis added). Notwithstanding the obligations
of public authorities to act in accordance with Convention rights
(s6 HRA 1998), if the Bill is to be HRA 1998 compatible, it should
incorporate its own safeguards against breaches of Convention
rights. As we indicate below, we believe that certain provisions
will very clearly permit such breaches and should be amended.
1.10 Clause 12(1) provides an inspector
or constable with powers to remove and care for animals that have
been taken into possession under clause 11(1). Clause 12(4) provides
that "any costs in relation to the removal or care of an
animal which are incurred by a person acting under this section
shall be recoverable from the owner of an animal summarily as
a civil debt." This effectively enables the police or an
authorised inspectorate (we presume the RSPCA will be one such)
to expropriate property (the owner's money) with no safeguards
as to proportionality ("any costs") and notwithstanding
that the animal has wrongly been taken into possession and/or
that there is no prosecution and/or that there is no conviction.
It is difficult to see how such misappropriation of property could
be justified as being in the public or general interest under
Article 1, First Protocol—despite being lawful on the face
of the statute.
1.11 In contrast with clause 12 of the draft
AWB, s2 and s4(1) Protection of Animals (Amendment) Act ("PA(A)A")
2000[2],
which are currently in force, do broadly appear to be compatible
with Article 1, First Protocol. Under the 2000 Act, the court,
rather than the constable or inspector, sanctions the activities
for which the prosecutor can recover expenses; the costs must
be reasonable; and veterinary advice is required in all circumstances
(contrast clause 11(2) of the draft Bill). The safeguards of the
2000 Act appear to be re-used in clauses in 16, 17 and 20 of the
draft AWB and it is recommended that they should also be re-used
as in relation to clause 12.
1.12 Clause 16 "borrows" from
s2 PA(A)A 2000—but goes much further. S2 PA(A)A 2000 empowers
a court, on the basis of veterinary evidence, to authorise a prosecutor
to carry out a number of operations in the interests of the welfare
of the animals in question. Those operations include taking charge
of and caring for the animals, selling it for a fair price and
slaughtering it. The "animals in question" under s.2
are those to which the (alleged) offence relates[3].
By contrast, clause 16 empowers a court, on the basis of veterinary
evidence, to authorise a prosecutor to carry out a number of operations
in the interests of the welfare of the animals other than those
to which alleged relates, while trial of the defendant is
pending. The list of operations is similar, but more extensive.
Clause 16 would, therefore, allow a prosecutor to apply to court
and for a court to permit the sale or destruction of an animal
belonging to the defendant in relation to which no prosecution
has been brought or even need be brought.
1.13 Explanatory Note 221 acknowledges that
"animals are a form of property covered by" Article
1, First Protocol. More precisely, in terms of the legal taxonomy
of property, non-wild animals are their owners' chattels. Article
1, First Protocol very clearly, then, engages: "Every natural
or legal person is entitled to the peaceful enjoyment of his possessions."
1.14 The second part of Article 1, First
Protocol provides that, "No one shall be deprived of his
possessions except in the public interest and subject to conditions
provided for by law and by the general principles of international
law." Clearly, the sale or destruction of an animal that
is not the subject of a prosecution would be such a deprivation—and
an irreversible deprivation. Both the "public interest"
criterion in the second part of the Convention right and the "general
interest" criterion of the third part need to be satisfied
before a breach of the right is to be avoided. The facility for
deprivation in these circumstances also needs to be proportionate.
1.15 Defra omits to address the public/general
interest in the "Launch of the Draft Animal Welfare Bill":
Explanatory Note 221 justifies powers of deprivation and destruction
"in the interests of animal welfare". This appears to
miss the point: in the absence of rights for animals, public and
general interests must be interpreted as the interests of human
citizens, individually and collectively. We believe that it is
in the general interest of a civilised society that humans are
not permitted to cause unnecessary suffering to animals. However,
this is a more subtle point and inherently requires balancing
the right of the individual to property with his responsibilities
as a keeper of living property. The factual nexus between the
determination of a person's criminal liability in relation to
the treatment of one animal and the deprivation of a wholly different
animal, where no prosecution is brought, is insufficient to justify
the clause 16 powers to sell or destroy the second animal.
1.16 For the reasons given above, we do
not consider it a responsible approach to law making, nor one
that is genuinely compatible with the Secretary of State's obligations
under the HRA 1998, to provide magistrates with such a power and
then simply to depend on their (not) exercising the power in accordance
with the right.
C. Secondary legislation and Codes of Practice
1.17 In the press release accompanying the
"Launch of the Draft Animal Welfare Bill", Ben Bradshaw
MP, Minister of State at Defra, commented that, "The Bill
will also provide powers to introduce secondary legislation and
Codes of Practice to protect the welfare of non-farmed kept animals.
This enabling power is already available for farmed animals and
our aim is to ensure that in future all domestic and captive animals
will be protected by legislation that can be easily revised to
take account of changing welfare needs and increased scientific
knowledge."
1.18 We welcome an increase in legislative
flexibility in this regard—but not without safeguards. Some,
though by no means all, primary legislation to protect animal
welfare has become ossified and is difficult to apply in practice.
The Pet Animals Act 1951 (as amended) is a prime example.
1.19 Clause 6(1) provides a general power
to the Secretary of State in England and National Assembly in
Wales "by regulations [to] make such provision as [they]
think fit for the purpose of promoting the welfare of animals
kept by man". Clause 6(2) particularises the areas in which
the Secretary of State and National Assembly can legislate, without
prejudice to the general power in clause 6(1). The general power
in clause 6(1) is delegated in very loose words and is almost
limitless. Not least because of its potency, we believe that the
wording of clause 6(1) should be tighter:
"The appropriate national authority [ie,
Secretary of State or Welsh National Assembly] may by regulations
make such provision as they certify fit for ensuring the welfare
of animals kept by man."
1.20 As Mr Bradshaw indicated, the flexibility
is intended to accommodate "changing welfare needs and increased
scientific knowledge". We believe that it should be mandatory
for the Secretary of State and the National Assembly:
(a) to consult on the proposed legislation;
and
(b) formally to certify that the draft secondary
legislation meets a change in animal welfare needs on the basis
of expert opinion and/or a demonstrable increment in scientific
knowledge.
1.21 Clauses 8(1)(b) and 9(1)(b) make consultation
mandatory where the Secretary of State and Welsh National Assembly,
respectively, propose to issue or revise a Code of Practice. It
is anomalous and perverse that consultation should be mandatory
for Codes of Practice, but not for the secondary legislation,
which is higher in the legislative hierarchy and will impose significant
legal obligations, including potential criminal sanctions, on
animal keepers.
1.22 Further, a sub-clause should be included
in clause 6 to provide a certification requirement for secondary
legislation by the Secretary of State and Welsh National Assembly,
with the grounds and parameters clearly spelled out. For example,
the power should be exercisable where there is peer-reviewed scientific
evidence that indicates a deficiency in animal welfare laws and
the legislation should be certified that it is made on this basis,
with explicit reference to the scientific evidence.
1.23 It is axiomatic in good, transparent
decision-making that cogent reasons are given; and, if there are
legitimate animal welfare reasons for making regulations, Defra
and the National Assembly of Wales should have nothing to hide.
Nor should they have anything to fear by way of challenge: if
the legislation accords with the certification reasons, then it
will be neither unreasonable nor unlawful in public law terms.
1.24 The list of areas under clause 6(2)
in which delegated legislation may be made, though necessarily
not exhaustive, is very extensive indeed. Consultation and certification
should apply as safeguards against arbitrary and bad law making
where clause 6(2) is invoked in the exercise of clause 6(1).
1.25 We take clause 6(2) as a clear acknowledgement
of general areas that Defra has identified as necessary for animal
welfare (secondary) legislation. Annex L to the "Launch of
the Draft Animal Welfare Bill" document lists those specific
subject areas already identified for secondary legislation:
1.26 We remain concerned, however, at what
other legislation may be introduced under these sub-clauses. Is
it intended that clause 6 be available for the following, legislative
purposes?
— a ban on fishing (clause 6(2)(k));
— a ban on the shooting of game birds
and mammals (clauses 6(2)(k) and (l));
— a ban on hunting with dogs and/or
coursing (clause 6(2)(k), (l) or (m)); and
— licensing hunting with dogs and/or
coursing (clause 6(2)(h)).
From clause 6(3)(a), it is clear that any regulations
made under clause 6(1) can create separate, new offences, which
are not necessarily limited to "protected animals" (if
indeed that concept works coherently and consistently within the
draft AWB).
1.27 The issue of hunting with dogs is clearly
perceived to be a matter for primary legislation: if a banning
Bill is to be debated, it merits the level of Parliamentary scrutiny
that primary legislation is afforded and which secondary legislation
is usually not. If these provisions are to remain in clause 6(2),
Defra is asked to clarify its intentions. (See also below.)
1.28 We welcome the requirement, under sub-clause
6(6), that regulations made under clause 6(1) are subject to the
affirmative parliamentary procedure. This is an important safeguard,
though it is recognised that, in reality, such regulations are
unlikely to receive significant parliamentary time for debate.
Against this background and as issues of animal welfare are often
politically contentious, Defra is urged to include provisions
for consultation and certification of draft regulations in the
AWB.
D. Intended consequences?
1.29 As we have noted at 2.26 above, clauses
6(1) and 6(2), read together, will clearly permit a secondary
legislative ban on fishing, shooting, hunting and coursing.
1.30 S1(3) Protection of Animals Act ("PAA")
1911[4]
provides legal clarity: that hunting with dogs and coursing are
outside the scope of the s1(1) offence. There is no equivalent
provision in the draft AWB. Defra is invited to clarify whether
the "protected animal" concept at clause 54(2) is intended
to remove hunting with dogs and coursing from the scope of the
offences contained within clauses 1 to 3 of the draft Bill.
E. Delegation of powers of inspection and
prosecution
1.31 As we have indicated at C above, we
are concerned that the very considerable power to make delegated
legislation and Codes of Practice is exercised responsibly—and,
more specifically, that there are necessary safeguards in place
to ensure that it is not exercised irresponsibly. In a similar
vein, we believe that the degree of delegation permitted by the
draft Bill in the areas of inspection, enforcement and prosecution
is of great concern: much power is devolved; there will be insufficient
safeguards in place to check the misuse of those powers.
1.32 Clause 44 provides for the appointment
of inspectors by local authorities. However, it appears from clause
44(2) that inspectors will not be limited to local authority employees:
"The Secretary of State may, in connection
with guidance under subsection 1, draw up a list of persons whom
he considers suitable for appointment by a local authority to
be an inspector for the purposes of this Act."
1.33 Explanatory Note 180 in the "Launch
of the Draft Animal Welfare Bill" is a little opaque in this
regard: "Under subsection (2) the Secretary of State may
also issue a list of approved persons who are considered suitable
for appointment as inspectors from whom inspectors are to be selected."
The administrative law reality is that the Secretary of State
will be providing a list of approved organisations to whom the
delegate local authorities can further delegate their powers.
Proposed powers exercisable by inspectors are considerable, will
frequently engage individuals' Convention Rights and, in certain
cases, will no longer require the present sanction of the court.
In particular with this further devolution of power, there should
be safeguards—in the draft AWB and elsewhere at law. The
draft Bill is, however, wanting in such safeguards.
1.34 On 1 July 2004, Defra announced that
the RSPCA had been awarded "approved prosecutor" status
under the PA(A)A 2000 from 1 September 2004. Broadly, the 2000
Act provides certain prosecutors of offences under the PAA 1911
relating to non-pet animals with ancillary powers and benefits.
These include, on the order of the court:
— powers of care, disposal and slaughter
of animals;
— powers of entry to mark an animal;
and
— an entitlement to reimbursement of
reasonable expenses incurred in the care, disposal and slaughter
of animals.
1.35 S.1(3) of the 2000 Act specifies to
whom it applies: the DPP, Crown Prosecution Service, government
departments, local authorities and a person who, at the request
of Defra, has entered into a written agreement under which he
may perform the functions conferred on a prosecutor by virtue
of the 2000 Act (s1(3)(d)). The RSPCA is currently the only prosecutor
who has entered into such a written agreement. Clause 15 of the
draft Bill carries forward this facility for Defra or, in Wales,
the National Assembly to authorise a prosecutor to exercise enhanced
powers, which it would not have available as a mere private prosecutor.
1.36 The powers for inspectors to deal with
animals in distress before prosecution (clauses 11 to 14) and
the powers for an authorised prosecutor to deal with animals in
distress with proceedings pending (clauses 16 to 20) are very
strong. They engage common law property rights, as well as Articles
6 and 8 and Article 1, First Protocol ECHR/Schedule 1 HRA 1998.
Before 31 August 2004, no non-governmental body (central or local)
has enjoyed any of these powers. From 1 September 2004, the RSPCA
will enjoy certain of these powers under the PA(A)A 2000, but
only in relation to commercial animals. After the passage of the
Animal Welfare Act, it is presumed that the RSPCA will enjoy all
these powers, by virtue of becoming an authorised prosecutor under
clause 15 and a listed inspectorate under clauses 44(2) and (3)
in relation to a pet and commercial animals. (Defra is invited
to confirm whether or not this is intended.) It is not inconceivable
that the RSPB will seek to follow suit.
1.37 Unlike the 2000 Act, clause 15 of the
draft Bill does not even specify that prosecutors must be authorised
in a written agreement. This should be amended to ensure that
there is a transparent public record of the terms on which the
prosecutor is authorised to use the clause 16 to 20 powers and
to conduct itself generally.
1.38 Clauses 44(2) and (3) of the draft
Bill require similar amendment and clarification. Currently, all
that will be required for the appointment of an inspector by a
local authority is that the inspector be listed on the Secretary
of State's suitability list; this is inadequate. First, the terms,
including proper safeguards and indemnities (see below), should
be recorded. Secondly, the route of delegation and accountability
should be clarified. Clearly, if the appointed inspector is to
carry out functions on appointment by a local authority, he must
be accountable to that local authority. However, what criteria
and guarantees are to be given, and in what form, before an inspector,
or more likely an inspectorate, is placed on the Secretary of
State's list?
1.39 In this connection, we recommend the
following safeguards:
— That any inspectorate performing
functions on behalf of a local authority should do so under a
suitable written agreement. (As to the terms of such agreements
generally, see below.)
— That the Secretary of State should
produce a standard form agreement for local authorities to use,
otherwise there is a risk of inconsistent application of these
very strong powers.
— That, before inclusion on the Secretary
of State's list, the inspectorate should be required to enter
into a written, standard form agreement, making similar guarantees
to those made in the 2000 Act approval agreement.
1.40 Defra has published the model written
agreement for "approving" prosecutors under the 2000
Act. It can be found at:
http://www.defra.gov.uk/animalh/welfare/pdf/writtenagreement_model.pdf
1.41 Certain contents of the model written
agreement are appropriate and necessary. For example:
— The prosecutor's obligation to have
due regard to the interests of the owner of any animals which
are the subject of proceedings.
— The prosecutor's obligation to perform
his function as a prosecutor under the 2000 Act in a manner compatible
with the Convention rights in Schedule 1 HRA 1998.
— The prosecutor's general obligation
to use his best endeavours to notify the owner of the animals,
the Divisional Manager of the State Veterinary Service and local
authority, where powers under s2 PA(A)A 2000 are exercised.
— The prosecutor's wide-ranging indemnity
to Defra in respect of liabilities arising out of or in connection
with the prosecutor under s2 and s3 PA(A)A 2000.
— The prosecutor's obligation to act
as if bound by the Code for Crown Prosecutors issued by the DPP
under s10 Prosecution of Offences Act 1985, when bringing proceedings
and when exercising powers of seizure, retention and disposal
of animals.
However, the model written agreement is deficient
in a number of ways, which should be remedied, in particular in
relation to the augmented powers under the draft AWB.
1.42 First, the authorised prosecutors should
be required to act in a way that is compatible with and not contrary
to the provisions of the Police and Criminal Evidence Act 1984.
1.43 Secondly, clause 10 ("Financial
Provisions") of the model written agreement does not explicitly
address a current problem in relation to costs awards. The usual
practice at present in unsuccessful RSPCA prosecutions is for
the RSPCA to ask and/or for the court to order that the defendant's
costs be paid out of Central Funds (ie, by the taxpayer). The
Court should, of course, retain an absolute discretion in relation
to costs. However, there is no apparent reason, as a matter of
public policy, why the "state" should subsidise unsuccessful
prosecutions brought by the RSPCA or other "non-state"
bodies. One way in which this could be remedied is for the model
agreement to provide that the authorised prosecutor must undertake
to the court that issues proceedings to pay the successful defendant's
costs.
1.44 Thirdly, the written agreement between
Defra and authorised prosecutors should include an explicit prohibition
on publicising prosecutions that are sub iudice in the
media, where the publication is or might be (a) in contempt of
court and/or (b) defamatory. From our own experience in practice,
RSPCA prosecutions are attended by a great deal more publicity
than prosecutions by the Crown Prosecution Service or by local
authorities. We do not believe that this is a coincidence. The
RSPCA is dependent on donations, bequests and legacies for its
solvency: being seen to prosecute offenders is an easy way in
which to publicise itself. The Article 10(1) right to freedom
of speech needs to be respected. However, proportionate restrictions
on the exercise of that right are clearly justified where criminal
proceedings have been commenced and the matter has yet to be tried—in
particular to guarantee the defendant's Article 6 rights. Beyond
the context of the model written agreement, the Sub-Committee
is also invited to consider the issue of publicity before judgment
in criminal prosecution for offences under the new legislation.
In doing so, relevant considerations are:
— The link between publicity and income-generation
for "volunteer" prosecutors, such as the RSPCA.
— The status of such prosecutors as
a matter of public law and in terms of the HRA 1998, on which
we have commented below.
— The highly emotive nature of animal
prosecutions.
1.45 Fourthly, we note that, for most of
the obligations under the model written agreement, third party
rights under the Contracts (Rights of Third Parties) ("C(RTP)A")
1999 are excluded (see term 18). It might be an appropriate check
against misuse of powers if such clauses as the agreement to perform
the functions of a prosecutor under the 2000 Act in an HRA 1998
compatible manner were made enforceable by third party beneficiaries,
who could be identified as a class of people in respect of whose
animals the powers under the legislation were exercised.
1.46 PACE 1984 compliance, financial autonomy
and restrictions on commenting to the media should also be included
in written agreements setting out conditions for Defra-listed
inspectors. Likewise, the duties in the first four bullet points
at 2.41 above should be adapted for incorporation into agreements
with inspectors.
1.47 As we have indicated, our concern is
that clauses 15 and 44 place a great number of statutory powers
into the hands of non-governmental organisations, with insufficient
checks on their use of those powers. The RSPCA is the prime and,
so far, only example available. It is, nevertheless, an instructive
example, where issues of accountability and public law duties
are concerned.
1.48 The RSPCA is a charity incorporated
by Act of Parliament[5].
As such it has all the characteristics of a "public body"
and would appear, superficially, to be amenable to public law
challenge by judicial review in relation to any irrational or
unlawful acts. However, Parliament has laid down a special procedure
for monitoring the activities of charities: charity proceedings
under s33 Charities Act 1993. The approach of the High Court in
the litigation arising from a ban on deerhunting by the National
Trust (a statutory charity) in 1997 is instructive[6].
In all but the most exceptional cases, the s33 Charities Act 1993
procedure should be followed: judicial review would not normally
be granted, as this alternative remedy was available. The act
that provoked the National Trust litigation was a decision by
its governing council in relation to its powers of land management.
As such, it was a matter that could be dealt with under s.33 Charities
Act 1993. It is less clear how such proceedings would remedy the
irrational act of an RSPCA inspector who seizes a large herd of
cows in relation to which no charges are subsequently made or
prosecution brought, and then proceeds to try to recover excessive
costs of their removal and care under clause 12(4) of the draft
AWB. Is this an exceptional occasion on which the High Court would
depart from the charity proceedings route? There is no clear answer.
1.49 As we have indicated at B above, an
attempt to recover the costs of care and removal in that example
would engage and would, almost certainly, infringe the Article
1, First Protocol rights of the owner of the cattle—if the
RSPCA is a "public authority" within the meaning of
s.6 HRA 1998. Defra's assessment, as set out at term 2.4 of the
model written agreement with prosecutors, is that there is a possibility
that the RSPCA could be regarded as a public authority, by virtue
of s.6(3)(b) HRA 1998, in performing the functions of a prosecutor
under the PA(A)A 2000. We agree, both in relation to the current
legislation and the proposed legislation: there is a distinct
possibility that, by nature of the functions being discharged,
an RSPCA prosecutor or inspector could be a public authority for
these purposes. However, there is no decided case exactly on point
and, as far as we can ascertain, there is no approximate case
law. Again, is judicial review, which seems the most logical procedural
route, an available option?
1.50 Further, it is not good enough that
there is a possibility that the RSPCA could be regarded
as a public authority when exercising powers as prosecutors and
inspectors under the draft AWB. The police, central government
inspectors (eg, for the State Veterinary Service) and local government
inspectors do not carry out criminal investigations, arrest people
and seize property acting as private bodies, free from public
law obligations. The Crown Prosecution Service and local authority
prosecution departments do not exercise their duties as private
prosecutors. So that there is proper parity with those bodies,
it should be spelt out in the AWB that any authorised prosecutors
and Defra-listed inspectors will be public authorities for the
purpose of s.6 HRA 1998.
1.51 We are also very concerned that the
AWB, if enacted, will provide the RSPCA with additional, state-sanctioned
powers to investigate and bring prosecutions in relation to activities
that it currently campaigns to end. The RSPCA's campaign to ban
hunting is well-known. We understand that its Chief Executive
is on record as wishing to end game shooting[7].
Approved/authorised prosecutor status and inspector's powers under
the AWB will enable the RSPCA to target, eg, game shooting operations
on private land for inspection.
1.52 As a matter of public policy and of
proper constitutional checks and balances, it is not enough simply
to rely on RSPCA officers with state powers to behave themselves,
when they are employed by an organisation that has clear campaigning
objectives. How can those inspectors be impartial, given their
employer's policies, or be seen to be impartial in administering
their functions in those circumstances?
1.53 If the RSPCA or any other body with an active
campaigning purpose (eg, the RSPB) is to undertake prosecution
and inspection activities on a basis that is commensurate with
the powers that will be given by the AWB, the obvious safeguard
would be to separate the investigation and enforcement activities
from the campaigning activities, organisationally, systemically
and, as much as possible, in terms of funding. Not least as the
draft AWB comes close to creating an "animal police",
there may be a long-term benefit in such separation.
1.54 Further, through the Home Secretary,
there is general accountability to Parliament for the actions
of the police. The factual and legal nexus between Defra and approved/authorised
prosecutors or Defra-listed inspectors is much less proximate.
There is not only a lack of legal accountability, as described
above, but also democratic accountability in the proposals.
1.55 Lastly, in this connection, Annex K
to the Regulatory Impact Assessment proposes the establishment
and operation of a National Database for recording (a) licences
held under the Act and (b) animal cruelty offences. Annex K indicates
that, "The RSPCA have confirmed that this would not be
a drain on their resources. " (No emphasis added.) This
seems to us entirely to miss the point. The question is not whether
the RSPCA can afford to operate it, but whether a private and
unaccountable body should be entrusted with processing such sensitive
personal data—both in the literal sense and within the meaning
of s2(g) Data Protection Act 1998. Annex K lists three options.
A preferable option 4 would be for the police to hold such data
on the Police National Computer and for the police, who are very
clearly publicly accountable, to be responsible for checking the
database, for example at the request of the local authority or
RSPCA inspector.
1.56 The Efra Committee is asked to remember
that, in the final and legal analysis, the RSPCA, the RSPB and
similar bodies are charitable member organisations, not alternative
police forces.
1 Appendix C. Back
2
Appendix C. Back
3
Cornwall County Council v Baker [2003] EWHC 374
(Admin), [2003] 2 All ER 178, [2003] 1 WLR 1813, (2003) 167 JP
198. Back
4
Appendix C. Back
5
Royal Society for the Prevention of Cruelty to Animals Act 1932,
as amended by the RSPCA Acts 1940 and 1958. Back
6
R(Scott & Ors) v Council of the National Trust
for Places of Historic Interest or Natural Beauty [1998] 1
WLR 226; Scott & Ors v National Trust for Places
of Historic Interest of Natural Beauty & Attorney-General
[1998] 2 All ER 705. Back
7
Jackie Ballard, on BBC South Politics Show, 2 February 2003 re
shooting: "It is horrible and nasty and one day when the
RSPCA has a lot of money and we have ended all other examples
of cruelty to animals we will get round to try and end this." Back
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