Examination of Witnesses (Questions 734-739)
MR MIKE
RADFORD
12 OCTOBER 2004
Q734 Chairman: Mr Radford, for the record
you are Reader in Law at the University of Aberdeen, so may I
thank you most sincerely for coming from Aberdeen today to give
evidence to the Committee today and also for your written submission.
I certainly want to probe some of the things in there but it was
extremely helpful. Can I simply start not by asking you to comment
on our question about Clause 26 of the Bill which we will come
to later and to ask the same basic question that we put to nearly
all of our witnesses: if in all of the things that the Bill does
there is one thing that you would say "Do not forget that
because we think that is very good", what is it, and the
converse, if there was one criticism or reservation that you would
not like us to forget, what is that as well?
Mr Radford: First of all, can
I thank the Committee for inviting me to attend. On the question
of what not to forget, the easy answer is the duty of care. That
is clearly the major new initiative, but I think that the most
important thing is that this is the first occasion on which animal
welfare and animal protection legislation has been looked at anew.
Your predecessor Richard Martin MP in 1822—
Q735 Chairman: Not quite my predecessor!
Mr Radford: —was instrumental
in passing the first legislation, and that original Act has been
overhauled on three occasions—in 1835, 1849 and 1911. On
each of those three subsequent occasions it was essentially a
consolidation Act. So that is the first thing. This is the first
time in which the whole picture has been looked at and, secondly,
it is the first time on which the government has thought fit to
bring forward such a Bill. On all previous occasions it has been
a Private Member's Bill, so that is important. As to the downside,
enforcement I know the Committee is well aware of. I would also
like to flag up the issue of the offence of cruelty.
Chairman: I just want to ask for your
guidance as much as anything because you made a point praising
the Bill in terms of saying (a) that it was a Government Bill
and (b) it brought together a lot of existing welfare legislation.
Are there any untidy bits that are left behind because I have
got a bit confused as to what existing animal welfare legislation
is going to be brought under the umbrella of this particular measure
and, therefore, by definition what is left over, and the difference
between this Bill and the legislation that deals with animal welfare
on the farm. Would you just care to comment on that because I,
for one, would find it quite useful to have the benefit of your
overview?
Joan Ruddock: And perhaps we could add
transport, Chairman.
Q736 Chairman: Indeed. Thank you.
Mr Radford: Can I set out the
picture, which will take a few moments?
Q737 Chairman: We would be delighted.
Mr Radford: The situation in 1822
was that the legal status of captive wild animals and domestic
animals was one of property, and as property the owner could do
whatever they wanted with their animal and treat it in whatever
way they wished. The legal status of domestic and captive wild
animals has not changed: it is still that of property. What has
happened is that, in the subsequent 180 years since 1822, Parliament
has intervened increasingly to restrict the autonomy of the owner
to say there are some things that cannot be done; there are some
things which, if done, must be done in a particular way. The one
area where the autonomy at common law of the owner remains is
in relation to deciding whether their animal lives or dies. There
are provisions which lay down how an animal should be euthanased
or slaughtered or killed or whatever the terminology is, but except
in very few cases—and it is usually with rare animals—the
decision as to whether the animal lives or dies remains the owner's.
Now the original legislation in 1822 focused on prohibiting cruelty
and making it a criminal offence. During the course of the 19th
century, so far as domestic animals were concerned, that remained
the situation. Different bits of legislation were consolidated
in 1911, and there were some added add-ons onto the legislation
but essentially not much happened until 1968, and what happened
in the 1960s was, with the increase in intensive farming, there
was public concern and, indeed, parliamentary concern as to the
way in which farm animals were being treated in these new regimes.
A committee of inquiry was set up, which is generally called the
Brambell inquiry because Brambell was the chair of it, and they
were given a wide brief by the Ministry of Agriculture as it then
was, and they took that brief and they developed the idea of welfare.
This was in relation specifically to farm animals and as a result
of the Brambell Report's recommendation Part 1 of the Agriculture
(Miscellaneous Provisions) Act 1968 was enacted, and that was
important in two regards. First of all, it is the first legislation
in relation to animals which uses the word "welfare",
so that is where welfare comes from, and, secondly, Part 1 of
the 1968 Act is essentially an enabling provision. It allows the
minister to introduce regulations, codes of practice and so on
and so forth. Now, my understanding is that what happens is that
it is intended that Part 1 of the 1968 Act be repealed but it
is essentially re-enacted, or will be re-enacted, in Clause 6(2)
of the Animal Welfare Bill, so the major provisions which relate
to farm animals, the origins in the main of which come from European
Union law but are at the moment enacted under the 1968 Act, will
in future be enacted under what one hopes will be Section 6(2)
of the Animal Welfare Act. Does that clarify the situation?
Chairman: Yes.
Q738 David Taylor: And that includes
farming?
Mr Radford: Yes. Now, the important
thing then is that two things happened. First of all, the focus
on welfare was predominantly on farm animals, not least because
of lobbying at a European Union level particularly with the European
Parliament. The other thing that happened is that a virtuous circle
was created in that once the word "welfare" was used
in legislation ministers had to decide what it meant and to decide
what it meant they looked to scientific research. Scientific research
produced results which have had an influence on legislation which
has gone back to further research, and so it has gone on. What
this legislation will do if enacted is extend this principle of
welfare beyond simply farm animals and some of the other animals
which also have their own welfare legislation such as zoo animals
to all domestic and captive wild animals.
Chairman: That is very helpful.
David Taylor: On page 3 of your submission,
paragraph 7, you look at the concept of unnecessary suffering
and on balance believe it should be retained as a tenet within
the Bill, but you add a rider that it should be made clear that
suffering applies to both physical and mental suffering. Do you
believe that existing legislation has been defective in that respect
and can you give examples of what would have been defined as cruelty,
were there a focus on mental suffering as well?
Q739 Chairman: Adding to that, just to
keep things consistent, the physical suffering you can look at
and see the characteristics, and I was interested to know how
you knew an animal of the type covered by this legislation was
experiencing mental suffering.
Mr Radford: I am a lawyer not
a scientist so I do not know!
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