Examination of Witnesses (Questions 800-819)
MR DAVID
FURSDON, MR
CHRISTOPHER PRICE,
MR JOHN
JACKSON AND
MR GRAHAM
DOWNING
13 OCTOBER 2004
Q800 Alan Simpson: If you are saying
then leave it to the courts to define those circumstances, in
principle why should the courts not have the right to also say,
"But we think that it is wrong to leave this person with
the right of stewardship or ownership of these animals"?
Mr Price: Because the only way
in which it could be wrong is if there are any welfare implications;
otherwise, why is it wrong?
Q801 Alan Simpson: But you said in your
first answer, "I cannot give you an example. That will be
for the courts to decide." I am saying, why would it not
be right for the courts to decide that they do not believe that
it is safe to leave that person with the ownership of the animal?
Mr Price: The circumstances could
arise. It could have been . . . Say a one-off loss of temper resulted
in the animal being harmed in some way; quite right to penalise
the person; punishment of some sort; but if everything else suggests
that the owner will look after the animal and there is no better
alternative for the animal, then I cannot see what is wrong with
the court, in appropriate circumstances, saying that the dog,
or whatever, should stay with the owner.
Chairman: You can ponder that while Joan
Ruddock takes up matters connected with definition of "animals"
in the Bill.
Q802 Joan Ruddock: I think we are all
aware that there are a whole raft of definitions, and we have
heard evidence from others about potential confusion and even
the suggestion there should simply be the word "animal"
and then exemptions should be produced from that. The Countryside
Alliance have said that they have noted the four categories in
the Bill, the animal, protected animal, kept by man, etcetera.
I wonder if you would like to say to us what you believe could
be the confusion arising from these terms, whether you think they
are sufficiently matched in the clauses to the appropriate animals
and how, if that is not the case, you think there could be greater
clarification? What would be your choice for defining "animals"
for the purpose of this Bill?
Mr Jackson: It is not an easy
matter. "Animal" is an imprecise term, and, if I can
put on a lawyer's hat for a moment, I would personally prefer
that there was specific reference to mammals, to birds, to fish,
if it is intended that the legislation should apply to fish, and
I think that one wanders into a problem of definition if one uses
the generic term "animal".
Q803 Joan Ruddock: That would make it
much more complicated, would it not? The Bill would become enormously
long, would it not?
Mr Jackson: I am not sure that
is the case. I think, particularly where one is dealing with the
creation of a criminal offence, it is desirable that legislation
is clear, particularly about what the offence is, and I think
there are some reasons for concern about the use of the word "animal".
Q804 Chairman: Can I follow on from that,
because in your evidence in paragraph 2.2 you raise the question
of the definition of "protected animal", and having
heard you say that you would like to have it in simple terms,
birds, fish and mammals—
Mr Jackson: By way of example.
Q805 Chairman: —by way of example,
so are you saying that—. In clause 54(2) of the Bill it
says "An `animal' is a protected animal", and it goes
on to give a definition which you claim may be flawed. So if we
were writing this in your terms, an animal, we would have three
things: "A mammal, a fish and a bird is a protected animal,
fish or a bird for the purposes of this Act." Is that the
kind of definition that you are looking for?
Mr Jackson: I think the point
I am making is that what is a mammal is absolutely specific; there
is not the slightest doubt what a mammal is. There is reason to
be doubtful about what an animal actually is. How far down the
biological chain do you go before you stop dealing with animals?
Q806 Chairman: But Mr Price told us earlier
on that many of the precedents which underpin the law in this
area—I am not asking for free advice, Mr Price, I am just
interpreting what you said—in other words, this current
legislation, if it comes to a court, the court can still borrow
from that which has gone before. So the question I put to you,
as a lawyer, do you not think that the term "animal"
has been established sufficiently clearly in existing law that
people know what it means? What you are saying is up to now anything
about "animal", animal welfare legislation, for example,
we do not know what this thing called an animal is, so we had
better redefine it in terms of mammals and fish and birds, because
now we do know what they mean?
Mr Jackson: I would put it this
way. If you leave it as it is, you certainly have a situation
in which the courts over the years may have to extend the definition
of what an animal is.
Q807 Mr Wiggin: I think one of the purposes
of using the generic term "animal" is because we seek
in this particular position of legislation to cover zoos, and
my clerk reminds me about platypuses and other useful difficult-to-define
creatures. The purpose really here is to cover everything, and
it is where there are omissions further down the biological chain
that we are really seeking a little bit more clarification.
Mr Jackson: I understand the difficulty.
I am not the legislator.
Q808 Chairman: Mr Price, by all means
shed some light on this?
Mr Price: With all respect to
John, I do disagree. I think the Bill is well drafted and entirely
consistent. I think it is clear what it means. I appreciate there
are five different sorts of animal, or whatever the number is,
but it all fits; it all works; you can tell what applies in what
situation. I think the draftsman should be commended for that.
Chairman: That is a good point. Joan,
do you want to follow on the line of questioning?
Joan Ruddock: No, I think not.
Q809 Chairman: Let me just ask Mr Price
one other question on the definition of animals. A number of our
witnesses are concerned about inconsistency in the use of the
term "animal" through the Bill. Do you have any worries
about that?
Mr Price: No.
Q810 Chairman: Are you quite happy on
that?
Mr Price: We spent some time trying
to work out if there were any and could not find anything.
Q811 Chairman: Right. One of the things
which again you both might like to comment on is the general question
as to whether this legislation, which, I suppose, for some, there
are some witnesses or some evidence we have had which suggests
it should encompass all animals, whether kept or in the wild,
but in the context of country pursuits, fishing, shooting or whatever,
man can take hold of, in the physical sense, or acquire animals
in the course of those pursuits, and you raise then whether in
fact the Bill applies to animals under those circumstances. I
wonder if you would like to comment about your concerns in that
respect?
Mr Price: I think the extent to
which it impacts on animals in the wild is really quite small.
It is really only once they have been released from captivity
and for the short period after that. As I am sure everybody knows,
the welfare of wild animals is regulated under the 1996 Act.
Q812 Chairman: The reason I asked that
question is because the Countryside Alliance have commented about
fishing, which is not the releasing of but the taking into captivity
of, and I do not want to play the two of you off against each
other, so I suppose I had better ask Mr Jackson. Why do you think
that this Bill would apply to the temporary stewardship by a man
in a keep-net of a fish, for example?
Mr Jackson: I would like to go
back to my opening remark, if I may. This Bill will, I think,
we think, have limited application to wild animals, but it has,
in our view, very usefully introduced this concept of a duty of
care. Sooner or later we are in this country going to have to
address the question of the welfare of wild animals—the
law on that topic is in the most dreadful mess—and we think
it could be extremely useful to extend this concept as it is used
in this Bill, the concept of care, to a wild animal once man has
engaged with that animal, because that is the point, in our view.
Q813 Chairman: What do you mean by "engaged
with the animal"? People on safaris might engage with animals
from afar down the end of a telescope or a camera.
Mr Jackson: If you take a warren
of rabbits which are living either on public land or on your own
land, whilst they are living simply as wild creatures uninterfered
with in any way man is not engaged with them. But suppose, for
example, you decide you want rabbit for supper and you go out
with a ferret with a view to bolting a rabbit into a net. Once
you have done that you have, in our view, engaged with a wild
mammal, and we are attracted by the concept of having a duty,
not to do positive things, but not to do things which are unreasonable
and would create unnecessary suffering in relation to that animal.
We think it is a useful idea and I repeat, the law on the welfare
of wild animals in this country, using the expression "animals",
is in the most dreadful mess and needs to be dealt with, and this
is one of the reasons we actually welcome in this legislation
the introduction of this concept of a duty of care.
Q814 Chairman: Moving on in terms of
the areas covered, one of the areas certainly the Countryside
Alliance express concern on is, as you say in your evidence, paragraph
2.9, "There is no definition of `mutilation' in the Bill",
and this again is a subject which has come up from a lot of our
witnesses. Perhaps you would like to tease out that a bit. Do
you have a definition in mind?
Mr Jackson: I pass this to Graham
Downing, because this comes to the docking of working dog questions.
Q815 Chairman: You can deal docking with
as well if you like. We will take the two together.
Mr Downing: It is a particularly
emotive word, and it is not defined. It is not defined in the
1968 Agriculture Act either. Our concern is that it might include
a whole raft of different activities: for example, spaying and
castration of dogs, one would assume, would be exempted under
section 1(5), but would, for example, the wing-clipping of game
birds be exempted, the removal of dew claws, both of which are
important activities in relation to country sports? On the question
of tail-docking, the explanatory notes within the draft Bill indicate
a general prohibition on docking with an exemption for working
dogs. The prohibition of docking is of great concern to Countryside
Alliance members and, indeed, I know there are a great many others,
but the Alliance's involvement is purely with dogs related to
country sports and pest control, and we have been stressing to
officials the importance of prophylactic docking for the prevention
of tail injury in working dogs of all sorts. What we would wish
to do is to ensure that working dogs, that the breeders of working
dogs might ensure that those litters may continue to be docked
legally by a veterinary surgeon, and that is the nature of discussions
which we have been having with officials.
Q816 Chairman: So I think, if I have
understood you correctly, you want something more specific in
the Bill from your stand-point to make it absolutely clear what
this terminology means and in the case of tail-docking what it
should and should not be applied to?
Mr Downing: Yes, I repeat, our
concern is with working dogs, for example, for shooting, falconry,
deer stalking, dogs used for pest control. Clearly there are other
areas of working dogs, such as those which are used by Customs
and Excise, those used by the police, which might also be involved
with this, but we do not have any involvement with dog showing,
for example, and quite clearly the Kennel Club would be responsible
for that area, so our involvement has been purely related to working
dogs. But what we would see as being a reasonable way forward
on this is to enable the breeder to establish with the veterinary
surgeon or to provide evidence to the veterinary surgeon that
the litter which he is seeking to be docked is, indeed, one of
working dogs. So what we would wish to be able to do is to ensure
that he can provide, he, the breeder, he or she the breeder, can
provide evidence to the veterinary surgeon to enable the veterinary
surgeon to make that decision on the basis of reasonable evidence.
Q817 Ms Atherton: Presumably you would
not know that until you sold the dogs?
Mr Downing: Dogs may not be docked
after their eyes open; so we are talking about puppies that are
forty-eight hours old.
Q818 Ms Atherton: But you would not know
that they would definitely be, just because it was a particular
breed that they would definitely be working dogs?
Mr Downing: We have avoided going
down the breed route for that specific purpose. There was at one
stage the suggestion that a list of breeds might be identified
as being breeds which could legitimately be docked. The difficulty
in establishing the breed of a dog at the age of 48 hours is quite
considerable. A veterinary surgeon may not be able to determine
the breed. Within field sports there are a lot of dogs used which
are of indeterminate breed, crosses between various breeds, so
to say that if the dog is of a specific breed it may be docked
is unhelpful in this respect. What we want to do is to ensure
that the dogs, whatever their breed, which are used for working
purposes may continue to be docked.
Q819 Alan Simpson: I think the critical
issue that we would face as a committee and subsequently that
the government would face is a very clear distinction between
docking for animal welfare reasons and for cosmetic reasons. Even
if the committee were to take on board the principle of what you
are saying there would have to be some practical mechanisms for
identifying the circumstances in which the animal welfare reasons
were specifically defined and made legitimate. The evidence which
we have had in relation to sheep and pigs in a sense gave us a
fairly easy template but you are taking us into areas now that
are more complex. The point about this is that for the law to
encompass what you are saying the wording would have to be robust
and it would be helpful if you had ideas about how that could
be made robust. The committee would welcome that.
Mr Downing: I do not think it
is complex at all. What one is trying to do is to ensure the prevention
of future injury of the dog. It is as simple as that. Docking
at the moment enables a breeder to do that. With this new legislation,
if there was no exemption under section 1(4) for tail docking
then a breeder in association with their veterinary surgeon would
no longer be able to do that, and it is to ensure the future welfare
of the dog that we wish to see an appropriate exemption made.
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