Examination of Witnesses (Questions 962-979)
MR BEN
BRADSHAW MP, MR
JOHN BOURNE,
MS CAROLINE
CONNELL AND
MR HENRY
HOPPE
27 OCTOBER 2004
Q962 Chairman: Good morning, ladies and
gentlemen. Welcome to the final oral evidence session in connection
with the Committee's consideration of the Draft Animal Welfare
Bill. Before I welcome the Minister and those from Defra who have
come with him, can I say from the chair that we are most grateful
for the enormous amount of information that we have received.
I think we have had well over 200 written submissions of one sort
or another and I would like to put on record my appreciation for
the input that we have had. I am sorry for those who follow our
events from afar that we have not been able to call everybody
who would like to give oral evidence but I can assure you that
in terms of the material we have received we have a pretty good
idea of what the issues are. Minister, can I pay a particular
word of thanks to your colleagues who have come and listened to
our proceedings. We have some specific questions that we want
to put to you in a moment, but you have the advantage of being
well-briefed by the Defra team who I know have been in attendance.
We were particularly grateful for their response to a point that
I asked for at the beginning as to whether on some of the detailed
legal points and other issues that had come up we could have some
early response from your Department and the Question and Answer
briefing that was produced was extremely helpful. We would like
to thank you for your continued input. Can I welcome you to our
proceedings. You were kind enough to open up the consideration
by the Committee of these matters when, in the nicest sense, we
were less well-informed than we are at the moment. I think we
are slightly better informed. We have had an awful lot of information
to digest but nonetheless we have done our very best to deal with
that. Minister, you are very welcome and you are supported this
morning by Mr John Bourne, the Head of the Animal Welfare Division,
Caroline Connell, your Legal Adviser who I think has attended
nearly as many sessions as we have, and Mr Henry Hoppe, the Head
of Policy on the Animal Welfare Bill. We are going to try, if
it is at all possible to be disciplined in our questioning, to
rattle through what we have got to because we are aware that most
colleagues will want to go to Prime Minister's Question Time.
Our target for finishing is 11.45 just so everybody knows what
the parameters are. You have obviously had a lot of feedback from
the Committee in terms of its proceedings. Without going into
intimate detail, are there any major areas of the Bill as a result
of what you have heard that you are looking at redrafting?
Mr Bradshaw: There are, Chairman,
and, if you will allow me, I was going to briefly touch on those
in some very short introductory remarks if you felt that that
would be appropriate.
Q963 Chairman: I think that would be
helpful.
Mr Bradshaw: Thank you very much
for your kind words about my officials and may I thank you and
your Committee for the commitment and time that you have expended
in scrutinising this draft Bill. I hope you have found it a useful
experience and I am sure that when your final report is published
and when the final Bill is published it will be a much better
Bill as a result of the work that you and your colleagues have
put in, so thank you very much indeed for that. I thought it might
be helpful if I addressed briefly one or two of the misconceptions
that have come out as a result of the evidence that I have seen.
I have to admit that I have not been able to see all of it, it
was simply not possible because there has been so much of it,
and I have had to rely on my officials to inform me of what those
misconceptions are. Then I will deal very briefly with the question
that you put to me at the beginning about what consequences we
would take from that in terms of amending the Bill. First of all,
on the issue of secondary legislation, regulating powers are necessary
if this Bill is to have the flexibility to meet the changing demands
and increases in understanding of the animal welfare field. As
the Committee will be aware, in the case of farmed animals regulation-making
powers in the Bill carry over the existing powers in the Agricultural
Act 1968 which the Bill will replace. In the case of non-farmed
animals the regulation-making powers will be used largely to replace
existing licensing regimes and provide detail on the welfare offences.
Performing animals, pet sales, dog and cat boarding, dog breeding
and riding schools are all already regulated by Acts of Parliament
and these Acts will be repealed as and when their provisions are
consolidated, modernised and replaced by new regulations. We believe
that there is no justification therefore for having some provisions
of the licensing on the face of the Bill, as some of the welfare
organisations have advocated, and others in regulations. And it
is for that reason that we are seeking to undertake all regulation
in secondary legislation while having the parameters on the powers
on the face of the Bill. The second main area of misconception
was over the enforcement measures included in the Bill. Let me
make it clear that the RSPCA are not being given powers of entry
to seize animals. Powers of entry and inspection will be carried
out by local authorities (and anyone they appoint under their
direction), the State Veterinary Service and the Police. If the
RSCPA need to enter premises to seize an animal it will be necessary
for them to be accompanied by a police constable and the police
constable will need to obtain a warrant from the court in order
to obtain entry to domestic premises. The term "inspector"
in the Bill means an officer of a local authority (or persons
appointed by a local authority) who is accountable to the local
authority, or a member of the SVS; it does not mean an RSPCA inspector.
The third main area of misconception, Chairman, was over sentencing.
This was raised by the Association of Conservative Lawyers. The
change from a maximum six-month custodial sentence to a custody
plus sentence of 51 weeks is a consequence of the Criminal Justice
Act 2003. A convicted person can serve up to 13 weeks in jail
with the rest of the 51-week sentence served on licence. Now turning
to those areas that we are already intending to amend as a result
of the evidence you have taken, Chairman. Firstly on enforcement
issues under clauses 11 to 41 of the Bill, we are discussing with
Parliamentary Counsel ways to simplify this part of the Bill.
In particular, we consider that there is scope for making it more
human rights compliant. We also recognise that it is not sensible
to require enforcing authorities to return to court only eight
days after an animal has been seized. Secondly, on the Police
concerns that were expressed to your Committee about a potential
additional burden that the Bill may place on them, ACPO have suggested
that there should be a memorandum of understanding that sets out
what responsibilities the Police and other enforcement agencies,
including the RSPCA, should have. We find this a helpful suggestion
and it is one that we intend to take forward. Thirdly on fishing
and angling, there has been concern expressed that the Bill will
threaten commercial fishing and angling. It is not our intention
to do that but in response to those representations we do propose
to exempt specifically these activities from prosecutions under
the cruelty and welfare offence. Farmed and ornamental fish will
not be exempted. Fourthly, we want to improve clarity. A number
of respondents have made helpful suggestions concerning improvements
to the drafting of the Bill, including the need for greater clarity
in clause 1 and the need to ensure that the clause on fighting
is made more watertight. These points are being taken forward
with Parliamentary Counsel and will be reflected in the final
draft of the Bill. Then two final issues, Chairman. One is devolution,
which was raised at the initial hearing that I attended a few
weeks back. Concern was expressed then that the Bill will mean
different welfare standards in England, Wales and Scotland. Because
of the devolution settlement of course this is theoretically possible
but the Scots are currently preparing their own Animal Welfare
Bill and we are not aware of any significant differences between
the English and the Scottish Bills or in the ensuing secondary
legislation. Of course, farmed animal welfare legislation is in
any event EU-driven. There is extensive liaison at official level
with the devolved administrations which will reduce the risk of
inadvertent discrepancies. However, we are proposing that disqualification
orders for the most serious offences will apply across borders
and that data-sharing between the administrations will, for example,
allow a conviction in Scotland to be taken into account when a
person applies for a licence in England. Finally, on the substance
of the secondary legislation. This has taken up a lot of your
Committee's time and taken up a lot of the time that I have spent
discussing this Bill with interested parties. Issues include circus
animals, pet fairs, greyhounds, and many of the other areas that
have concerned animal welfare organisations. I have listened carefully
to what has been said about these issues but I do not consider
that these are matters that ought to be addressed on the face
of the Bill. There will be plenty of detailed consideration, including
public consultation and parliamentary scrutiny, when secondary
legislation is prepared once the new Act is, as we hope, in place.
Q964 Chairman: Minister, that is very
helpful indeed. Can I just anticipate a question we were going
to ask you and ask it early. One of the requests in the light
of the large amount of secondary legislation which is proposed
(and we understand the reasons why) is that on the face of the
Bill there should be an obligation in law for your Department
to consult, as opposed to the line you have taken so far which
is simply to say because these would require approval by the affirmative
procedure that was enough. Will you put a power into the Bill
that you will oblige yourself statutorily to consult on particularly
the things that are covered by clause 6?
Mr Bradshaw: Caroline might want
to say something about the legal basis of this but my understanding,
Chairman, is that Cabinet Office rules say that we do have to
consult. I would be resistant to putting such a commitment on
the face of the Bill. You yourself have already indicated that
any secondary legislation would have to go through the normal
parliamentary process. You have expressed a desire yourselves
as a Committee to engage in pre-legislative scrutiny of some of
the secondary legislation. That is something that certainly, in
principle, I would welcome as someone who believes that pre-legislative
scrutiny can always help us improve our laws. You may wish to
consider whether you want to do it on all of it because you have
already got quite a heavy workload and you will be increasing
your workload considerably if you undertake pre-legislative scrutiny
of all the secondary legislation. At the moment we are not convinced
of the need to put an explicit commitment to consultation on the
face of the Bill. I do not know if Caroline wants to add anything
on the reasons for that?
Ms Connell: I have nothing really
to add. The Minister has already mentioned the fact that there
would be an obligation to comply with Cabinet Office guidance
on consultation, and so consultation is, one might say, built
into the procedure in any event.
Mr Bradshaw: Can I add one other
consideration in this. There could be an example that one could
think of where, as a result of some emergency or as a result of
some sudden scientific discovery, in order to prevent suffering,
we had to move very, very quickly. I am not sure then that it
would be publicly acceptable for us to go through a long process
of consultation before bringing in the necessary statutory instrument.
Q965 Chairman: Minister, you know as
well as I do that your Department can consult very quickly. It
had to do that in the context of the foot-and-mouth outbreak and
you consulted rather rapidly on some of those things. So I do
not accept the fact that a rapidly developing situation is a barrier
to responding to an obligation to consult. People will be disappointed,
I have to say, in what you have said. I appreciate that there
are Cabinet guidelines but we have noted the point and we also
note that, apart from that one line of argument, there is not
a lot you have said to justify why that should not go into the
Bill. Let us move on to the starting point of our further questioning,
the definition of an "animal", which is covered by clause
53 of the Bill. We have received evidence to suggest that other
species beyond those defined in clause 53 should go in, in particular
crustaceans and cephalopods. We had some interesting evidence
and debate on whether those animals could feel pain. Certainly
looking at some of the overseas legislation in this area if my
memory serves me correctly, New Zealand, with a different definition
of "animal", goes considerably further than you have
done. Have you given thought to extending beyond the definition
in clause 53 what an animal would be in the context of this legislation?
Mr Bradshaw: We have certainly
given thought to it, Chairman, but the advice that I have had
from officials, based on the scientific evidence that is available,
is that at the moment because we do not have compelling scientific
evidence that cephalopods and crustaceans feel pain that it would
not be merited to include them in the definition of "animal"
when it comes to this Bill. However, I would point out that the
Bill would give us powers, again through secondary legislation,
to very rapidly expand the definition of animal if and when that
scientific evidence became compelling.
Q966 Chairman: Given the amount of time
you have had to think about this and given the compelling evidence
particularly connected with crabs and lobsters about the way they
were stored and about the way that they were killed and cooked,
there did seem to be a powerful case for those two species to
receive some protection. Are you dismissing that evidence as not
conclusive?
Mr Bradshaw: I am always prepared
to consider new evidence that I have not seen but our view at
the moment is that we have to draw a line somewhere on this definition
and we have drawn it in the right place based on the scientific
evidence available.
Q967 Chairman: So your experts are dismissing
outright all the evidence which has been placed in the public
domain, and certainly before this Committee, that anything other
than the species covered in clause 53 do not feel pain full stop?
Mr Bradshaw: That is the advice
that I have been given, yes.
Chairman: I think that is disappointing
again and people will be concerned that you are not prepared to
move so far as that aspect is concerned. I do not want to have
a scientific debate now but there was certainly some powerful
evidence on it. David?
Q968 Mr Drew: If we can now look at the
issue of cruelty and in particular the definition of a "protected
animal". There were those who gave evidence who said that
you do not need to define a protected animal and that in itself
leads to problems because, of course, there is an implication
that such an animal will be within somebody's custody or control.
Can you just explain to us why you are defining a protected animal
within the legislation rather than leaving this more open-ended
so that appropriate action can be taken where there are clear
cases of cruelty?
Mr Bradshaw: This is one of the
other areas where we are considering some slight changes that
Caroline may wish to inform the Committee of.
Ms Connell: Could you just put
your question again. I am sorry, I am not quite clear the point
you are asking.
Q969 Mr Drew: What I am interested in
is by defining a "protected animal" there is a view
that that would mean that action could only be taken against somebody
who is either in control of or has custody of an animal. There
could be clear cases (and we had presented a case about cruelty
to a beached a whale or a stag that was hit by a motor car) where
subsequent to that initial incident, cruelty could have taken
place, and yet from our understanding that is outwith the legislation
that you are proposing. So why are you defining "protected
animal" rather than just defining "animal"?
Ms Connell: Well, it was a policy
decision taken to try and draw a line between protected animals
on the one side and wild animals, as it were. I think the decision
was made to come down on the side of not extending the Bill across
the board to any animal including wild animals. You will know
probably that there is already some legislation protecting wild
mammals and there is also some legislation protecting wildlife
in some circumstances. It was felt that this was a Bill trying
to deal with animals which are kept by man in some way and so
the difficulty then is trying to find where the line should be
drawn between kept animals and wild animals. That is where the
question of protected animals comes in. We are protecting animals
which are commonly domesticated and we are protecting other animals
where they are under control of man, and that is where it was
felt logical to draw the line. That is as far as the cruelty clause
is concerned so you cannot be cruel to either of those animals.
And then as far as the welfare offence is concerned it draws it
down a little bit closer still to try and really target the relationship
of responsibility for an animal. It is really a question of trying—
Q970 Mr Drew: Can I be absolutely clear.
Are we talking about a species differentiation or are we talking
about an ownership definition because obviously any wild animal
could be effectively owned or managed or controlled by a human
being?
Ms Connell: Yes and if it is then
the cruelty offence would apply.
Q971 Mr Drew: So if someone owns a whale
because they happen to have it in an aquarium, if they are deemed
to have been cruel to it they will be subject to this legislation?
Ms Connell: That is right but
what we are not covering is wild animals living in the wild.
Mr Bradshaw: I would like to seek
some clarification on this, Chairman, because my understanding
was that in the example that Mr Drew has given—that of a
deer that had been knocked over and been injured—that the
person in whose temporary custody that animal was would be subject
to the cruelty offence.
Ms Connell: Yes, it depends on
whether or not the animal is under your control, so a wild animal
could become under your control. Say, for example, you set a trap
and the wild animal walks into the trap, then when you go and
inspect your trap you could say the wild animal is under your
control and you acquire a duty then not to be cruel to it.
Q972 Mr Drew: Just to conclude this question,
this is actually a very wide definition rather than a restrictive
definition (because I took it to be quite restrictive) so, effectively,
any animal could be deemed to be under control and therefore subject
to this legislation in terms of cruelty?
Ms Connell: Once it becomes under
your control, yes.
Q973 Mr Drew: That is where the argument
will come?
Ms Connell: Yes.
Mr Bradshaw: And that is one of
the reasons we have exempted fish on a hook or in a net.
Q974 Chairman: Just to follow that line
of argument up. What about the concerns that were put to the Committee
about game and country pursuits because one of the arguments was
that at the point of release animals that were bred to be shot
became wild animals at the instant that they left. On the other
hand, they had been up to the point of release in a dependency
relationship with the breeder and you might argue that because
then subsequently gamekeepers made available feed and water because
they wanted to keep those game birds in a particular location
that there is a continuing "dependency" relationship
and whereas you have expressly ruled out angling, you have left
this whole area of game shooting potentially in limbo. Would you
like to clarify where game shooting begins and ends in the context
of what you have just said?
Mr Bradshaw: You can have a go,
John, if you like, yes!
Mr Bourne: Chairman, plainly there
is plenty of evidence that when that game is being reared then
it is indeed in the custody of the gamekeeper because it is inside
a fence of a restrictive nature and there is other evidence that
you are responsible in other legal ways for that game. For example,
if somebody steals one of your pheasants when it is in a game-rearing
pen it is theft because it is your property. When the game is
released, as you say, in some cases it may be fed and it may be
dependent up to a point on the keeper but if the keeper stops
feeding it the game is free to disappear across the countryside.
It is not all that dissimilar to if you are feeding a bird at
your bird table and it comes every day. There is other legal evidence
that it is not considered as property. So we are confident, having
discussed it with lawyers, that the courts would conclude that
under those circumstances released game would not be considered
as animals for which the keeper is responsible or of which he
has custody.
Q975 Diana Organ: I did not quite understand
in what I think is an excellent piece of legislation why wild
animals in the wild are not given the protection that we are seeking
to give other animals. Certainly in the legislation that, no doubt,
you looked at from New Zealand and Sweden wild animals are given
that protection. To take on what we have just been discussing
now about where the borders come of what is acceptable and what
is not, take the bird table, the garden bird situation. If I occasionally
put out nuts and bits of bread in my garden (not on a regular
basis and they are not dependent on it but they come and feed)
but then I inflict harm, cruelty and unnecessary suffering on
those wild birds, does that come within the remit of the Bill?
Or another rather bizarre situation: a wild animal that I might
have responsibility for maybe an alligator or something like that
or a wild panther that I release into the wild—and people
do release some animals into the wild and they become feral—what
happens for their protection? My third point is have you not included
wild animals for the simple political reason that it would cover
animals such a foxes, deer, hare and badgers and the politics
of putting that in this Bill is just too difficult to manage?
Mr Bradshaw: No, the principal
reason that we have not included wild animals is that they are
covered by other legislation. If you began to injure the birds
that came to your bird table, you would be committing other offences
already. This Bill is primarily about kept animals because that
is where the gaps in the law going back to 1911 are. We have updated
animal welfare laws governing farmed animals. We have updated
and are in the process of updating, not least through the Hunting
Bill, the laws governing cruelty towards animals in the wild,
but what we have not had up until this Bill is updated is legislation
(including giving ourselves powers under secondary legislation
to continue to update that legislation) regarding pets primarily
but also other animals that are kept by man or woman. That is
why we have excluded wild animals from this Bill except when they
are in the temporary care of man.
Q976 Diana Organ: In a way it is a slightly
moot point because you are saying "within the control of
man". Surely we have situations where if you take the deer
of the Forest of Dean, they are wild animals living in a wild
environment but they are under the control of man in that the
Forestry Commission is responsible for their culling, is responsible
for dealing with the road traffic accidents, and is responsible
for keeping them healthy and dealing with injuries. They do not
come under this Bill but they are under the control of man.
Mr Bradshaw: I would argue against
saying that they are under the direct control. One could extend
that argument, Chairman, to say that all wildlife in this country
is managed to some extent by human activity and is impacted on
by human activity. As with drawing up all legislation, one has
to draw the line somewhere in terms of definition. This has been
a difficult area for us and it has been an area which has divided
the NGOs and people who have given evidence to you but we think
that we have tried our best to arrive at a sensible definition
of what animals this applies to and in what conditions, in the
Bill as it stands.
Q977 Mr Breed: This is a key point and
I think it is right that we spend time to try and get this absolutely
right. There has clearly been some sort of difficulty in getting
the definition of "protected animal". Looking at it
the other way round, did you give any consideration to defining
what is not an offence against an animal rather than trying to
define what is and what sort of animal, and looking at it the
other way round, because I think some of the issues we have just
taken there might fall into that latter category?
Mr Bradshaw: Caroline may want
to add something to this. Inevitably when you are looking at trying
to draw up a list of what is an offence, it is very helpful to
also work out in your mind what is not and should not be an offence,
and that is why there are conditions of reasonableness, for example,
all the way through this Bill. For example, one of the concerns
that was expressed to you by farmers was, "If one of my rams
gets out of the field and gets run over will I be responsible
for it?" No, because if you have taken reasonable steps to
ensure that your ram did not get out, you cannot be responsible
for the fact it gets out and runs over the road and then gets
run over. So, yes, in drawing up the list of examples that it
would apply to we also had to bear in mind where it would be ludicrous
for the law to apply in this context.
Ms Connell: I think it is probably
helpful to look at the types of offences that we have got. We
have got the duty to take reasonable steps to ensure the welfare
of an "animal for which you are responsible" is how
we have currently drafted it, so it has altered slightly. The
whole idea of that is that you have a position of responsibility
towards certain animals. So if you are a farmer and you have pigs
you have a responsibility for them and therefore you have a duty
to ensure their welfare. That is already in existing legislation
at the moment as far as farmed animals are concerned. How far
should that extend when we are talking about the cruelty offence?
It does extend further when we are talking about the cruelty offence
but it does not extend right out to every single animal. So it
is true that you could have a situation where a boy is cruel to
a wild animal, he shoots a catapult at it and hits it just for
fun or he is cruel to it or whatever, and that at the moment falls
outside the scope of this Bill. The policy reason behind it is
perhaps not for me to comment on but that is the position that
we are in at the moment. The cruelty offence is much wider in
scope than the welfare offence so that you are not allowed to
be cruel to an animal that is under your control. That can be
a much more temporary relationship than an animal that you are
responsible for, or at least it is intended to be, and you are
also not allowed to be cruel to an animal that is of a type which
is commonly domesticated. So, for example, if a cat is effectively
living independently you are still not allowed to be cruel to
it. You might say what is the justification behind those distinctions,
but the vast bulk of the law is intended to regulate the relationship
between the keeper of animals and the animals that he keeps. That
is the heart of it and so when you are looking at the cruelty
offence that is more at the margins of this Bill but, nevertheless,
we feel that it is appropriate to prevent cruelty to animals that
are under the control of man. Can I just say that it is impossible
to rule out there being occasions where the facts of on individual
case may be slightly unclear and in those situations I suppose
it is inevitable there may be arguments on the facts as to when
one animal is under control or when it is not. I do not think
any legislation can rule that out completely.
Q978 Mr Mitchell: I must say as a commonsense
politician, and some might say commonsense to the point of obtuseness,
I am a bit worried about the implications of the Bill in the sense
that we are in the realms of the theology with a lot of it. Are
you not going to open the system up to lunatic legal actions all
over the country on what is and what is not a kept animal? Will
it be up to the courts to define what is meant by "in the
custody and control of man"?
Mr Bradshaw: The courts under
the 1911 legislation already have to make those sorts of judgments
and they have managed fairly well to avoid making judgments which,
to use your description, would be non-commonsensical, Mr Mitchell.
We have drawn on the experience of countries like New Zealand
and Sweden that have introduced this legislation to try to avoid
happening the sort of situations that you describe. In the end
I am sure there will be some prosecutions taken out because this
Bill, as you will be aware, allows (as does the existing 1911
legislation) anyone to take out a prosecution against someone.
I am sure there will be some who may try it on but in the end
it will be up to the courts to decide whether the case they are
bringing is a reasonable one or not.
Q979 Mr Mitchell: So just as in the case
of rights legislation there is a multiplicity of actions available
now, groups that are interested in animal welfare will be able
to push the legal limits?
Mr Bradshaw: Anyone can, not just
groups but individuals also. The distinction I would make about
this Bill is that it is an animal welfare Bill; it is not an animal
rights Bill.
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