Examination of Witnesses (Questions 980-999)
MR BEN
BRADSHAW MP, MR
JOHN BOURNE,
MS CAROLINE
CONNELL AND
MR HENRY
HOPPE
27 OCTOBER 2004
Q980 Mr Mitchell: Let us turn to fish
because the theological implications come in there. They are vertebrates
and therefore come under the Bill. We are involved in a theological
argument as to whether fish feel pain and misery and happiness
at the thought of being taken to Grimsby and eaten eventually.
Did I hear you say earlier that you are going to take fish out
of the legislation?
Mr Bradshaw: We do not think—and
indeed this has been the case under the 1911 Bill and exactly
the same applies to fish as well—there is a danger that
a fish on the decks of one of your Grimsby trawlers—
Q981 Mr Mitchell: —Where the skipper
is the keeper?
Mr Bradshaw: Absolutely. We do
not believe that if fish were not exempted that there would be
a successful prosecution in these sorts of cases, but to err on
the side of caution we have decided, as a result of listening
to representations that have been made by the angling and commercial
fishing organisations, to do what the New Zealanders have done
in their legislation which is to specifically exempt fish from
the remit of this Bill. That leads back in a way to one of the
points the Chairman made earlier about cephalopods and crustaceans,
which is if we were exempting fish it would be make it rather
difficult to then include crustaceans and cephalopods. I am just
being corrected in terms of terminology. We are exempting "fishing"
rather than "fish".
Q982 Mr Mitchell: That is different.
Mr Bradshaw: Yes it is different
because kept fish in fish farms are already governed by EU welfare
legislation and ornamental fish will continue to be covered.
Q983 Mr Mitchell: Are you saying that
fish on the deck of the trawler or in the fisherman's bucket are
exempt?
Mr Bradshaw: Yes.
Q984 Mr Mitchell: I am delighted to hear
it because I was dreading the prospect of what happened before
the last two elections when I had hoards of anglers—and
it is a very popular hobby—coming to my constituency surgery
arguing that the Labour government would, as it was banning fox-hunting
also ban fishing. It will not have any effect on commercial fishing
or angling?
Mr Bradshaw: It will not and although
this is diverting slightly from the remit of this Committee I
think as with recent decisions we have made on a number of things
like enforcement of management of inshore waters and on cormorant
protection you can go back to your angling constituents and hold
your head up high.
Q985 Mr Mitchell: Are you going to achieve
that by an exemption to clause 3(1) or are you also going to exempt
it in clause 54?
Mr Bourne: We will exempt commercial
fishing and angling from clause 1, the cruelty offence and what
is currently clause 3, the welfare offence, but we will not be
changing 53, I suspect.
Q986 Mr Mitchell: 54?
Mr Bourne: 54 is a general interpretation.
53 is the definition of "animal" which I presume is
what you are talking about. We will not be changing that because,
as I say, we have to include fish, partly because there is veterinary
advice that there is significant evidence that they may feel pain
and, secondly, the practical point, they are covered by the EU
regulation that covers all farmed animals, so if we are to have
the structure of a Bill that covers the entirety of kept animals
therefore we have to make sure it is consistent with WOFAR and
therefore we have to include fish.
Q987 Chairman: Can I pick you up on a
point of language. You talked about all farmed animals. There
are efforts being made to develop the farming of crustacean. Does
that mean they will be brought in by another route?
Mr Bourne: No, WOFAR is the Welfare
of Farmed Animals Regulation which implements an EU Directive
but it does also specify what it covers in there. I will turn
to Caroline for expert advice on that.
Ms Connell: I have not got a copy
of the regulations in front of me so I cannot check just now what
the definition is and I cannot remember off the top of my head
what the definition of animal is but I think it is restricted
to vertebrates.
Chairman: As the world of "marine
farming" is developed it could pose some interesting questions
so far as this legislation is concerned.
Q988 Mr Mitchell: And you are satisfied
that to exclude it from the earlier clauses but not from the definition
of "protected animals" is not going to lead to confusion?
Mr Bourne: Sorry?
Q989 Mr Mitchell: You are satisfied that
to exclude fishing from the earlier clauses but not from the definition
of "protected animals" is not going to lead to a confusion
over which there could be prosecutions of either anglers or commercial
fishermen?
Mr Bourne: We are confident that
by exempting particular and specified activities that will not
cause confusion compared with the species that are covered by
the Bill. They are two separate angles and we are confident that
there will not be confusion caused by that particular exemption
on that particular activity.
Q990 Chairman: I would like to move our
questioning on now to a key terminology, the terminology used
to define "animal" in the Bill because it jumps about.
The first thing you read in clause 1(a) is "an act of his
or a failure of his to act causes an animal to suffer ..."
but by the time we get to clause 1(c) we are redefining "animal"
in terms of the animal is a "protected animal", so we
have a juxtaposition between the generic "animal" and
then this new term "protected animal". Then in clause
2, the fighting clause, we have got an intention to apply the
legislation to a fight between a protected animal and an animal
or a human. You say that clause 3 on the welfare offence is intended
only to apply to protected animals. It does seem to jump about
a bit. Perhaps you could explain why you have decided not to have
something that was generic about animals because you define the
relationship between man and animal later on, for example in clause
54? Why was it needed to invent this term "protected animal"?
Ms Connell: The intention of the
drafting of the cruelty clause is to prevent cruelty to a class
of animal which is "protected animals", so that is why
at the moment the draft is that you are you committing an offence
if an act of yours causes an animal to suffer and then other things
are fulfilled such as that animal is a protected animal. The upshot
of that drafting is that it is not cruelty to any animal, and
this goes back to the other point we were discussing earlier,
that brings you within this clause, but cruelty to a protected
animal. It is just the way in which that has been drafted.
Q991 Chairman: Why does it not simply
say "an act of his or a failure of his to act causes a protected
animal to suffer" full stop?
Ms Connell: We do not do the drafting,
that is Parliamentary Counsel.
Q992 Chairman: But your poor Minister
has got to stand up, subject to this Bill being in the Queen's
Speech, which hopefully it is going to be, and he has got to explain
this to Parliament. Somebody in standing committee is going to
give him a rough time on this.
Ms Connell: But if you read clause
1 as it currently stands—and it is in the process of being
redrafted but I do not anticipate this particular point will alter—the
way it is drafted is to read that if you cause an animal to suffer
and that, firstly, you knew that you were going cause it to suffer,
secondly it is a protected animal and, thirdly, the suffering
is unnecessary. All those three things have to happen before you
commit an offence. It is not just causing a protected animal to
suffer. It has to be unnecessary suffering and you have to have
known that you would be causing it. Do you see what I mean?
Q993 Chairman: I think Mr Bourne wishes
to come to your aid.
Mr Bourne: Not entirely.
Q994 Chairman: That is a bit mean not
to come to the good lady's aid, Mr Bourne!
Mr Bourne: Can I say I asked exactly
the same question and the reply I got back was that what is written
is legally sensible but I would take your point that it is not
perhaps entirely clear to the straight reader. If we might take
that point and go back to Parliamentary Counsel and suggest that
even if it might be unnecessary in terms of legal meaning it might
be helpful to clarify it.
Q995 Chairman: I am grateful to you.
I shall not pursue that line any more. There is another bit of
what I call jumping around here because in the Bill, for example,
it talks about "kept by man" and "keeper".
Perhaps you can give us a little commentary on that as well.
Ms Connell: Actually that is being
changed. At the moment the reference is not to "keepers"
and Parliamentary Counsel has suggested the wording "animals
for which you are responsible". So at the moment we are not
using "kept" or "keeper" because I appreciate
that there was a bit of confusion. What is the difference between
an animal that is kept by man and then if you read that across
into what is a keeper and if they did not both line up then you
were in trouble. So we are not currently using that word and we
are trying to find a better way.
Chairman: Right. We have got two ticks
in the box so that is good. In that case, Mr Tipping, do you want
to pursue this?
Q996 Paddy Tipping: Just briefly in the
interests of spreading enlightenment and clarity. In clause 6,
which really is a peg in the Bill to bring forward the regulation,
what class of animals are we talking about there because 6(1)
talks about "the welfare of animals kept by man" and
then lower down in 6(2)(a) we talk generally about the "welfare"
of animals. Are we talking about protected animals or animals
kept by man?
Mr Bourne: The principle is that
the animals that are governed by clause 6 are the same animals
to which the welfare offence applies and, as Caroline has just
said, we are changing the definition for the welfare offence not
in terms of significant meaning but to make it clearer and more
obvious, and a similar change will be made to clause 6.
Q997 Paddy Tipping: So when we get to
committee stage hopefully next year this will all be clear to
members of the Committee?
Mr Bourne: I hope so.
Ms Connell: Yes.
Chairman: Let us move on then to Mr Drew.
Q998 Mr Drew: If we look at clause 1,
which is in many respects the key note of the Bill, we as a Committee
have spent a great deal of time looking at that and I think some
of the views that came to us would be shared by at least some
of the Committee. Clause 1 is a rather complicated clause. Have
you had a debate on how you might break this clause down?
Ms Connell: Yes, in a word.
Q999 Mr Drew: Ms Connell has obviously
got some things to say so you do understand where I am coming
from. How are you looking at making this simpler in terms of the
way in which this definition of cruelty is going to be now defined?
Ms Connell: We are trying to break
it down. Parliamentary Counsel thinks, and we agree, that it is
too unwieldy at the moment as the publication draft. One way in
which we are trying to simplify it is to separate out permitting
cruelty as a separate clause. So you have got causing cruelty
and then where you have got in subsection 2 of the publication
draft a keeper of an animal commits an offence if he permits another
person to cause an animal to suffer, separating that out, and
possibly then even separating out the other specific things such
as administering poisonous drugs to animals as well. Also the
other thing we are considering doing is bringing the definition
of "protected animal" back into clause 1 rather than
having it right at the end of the Bill so that you can see there
and then which animals are intended to be covered.
| 
