Select Committee on Environment, Food and Rural Affairs Minutes of Evidence


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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