Examination of Witnesses (Questions 1000-1019)
MR BEN
BRADSHAW MP, MR
JOHN BOURNE,
MS CAROLINE
CONNELL AND
MR HENRY
HOPPE
27 OCTOBER 2004
Q1000 Mr Drew: The test of this law will
not be how well you draft it, although we do hope you do draft
it well and we hope we have been helpful in that process, it is
going to be how it is going to be tested in the courts. In particular
there is the issue of clause 1(3) which is trying to give greater
certainty to what we mean by cruelty. Most of these cases will
be tested in the Magistrates' Court. I accept that you are breaking
down the different definitions but can you take me through how
you think a successful case can be pursued that the magistrates
will actually grant a case of cruelty against a particular miscreant?
Mr Bradshaw: In what way is it
not clear already in clause is 1(3)?
Q1001 Mr Drew: I think what I am looking
at is a particular example there. I am sorry I left for a short
time but the problem with this is when you get down to actually
trying to prove a case it is not going to be easy. I know there
is a series of hurdles you have got to get over. You have got
to convince magistrates to grant the prosecution the wherewithal
to bring these cases. Can you just give me some background on
how you think this clause 1 is going to be different and it is
going to make it easier so that animals are greater protected?
It really comes down to this confusion over how clause 1 is currently
drafted. You are saying it is being unpacked but—
Ms Connell: The thing is I am
not sure that clause 1 really alters the existing situation very
much really because at the moment cruelty prosecutions are carried
out under the Protection of Animals Act 1911 and there is quite
complicated wording in that Act. It is quite an archaically worded
Act but what it basically boils down to is are you causing unnecessary
suffering to an animal. So the crux of it is a) are you causing
suffering and b) if you are, is it unnecessary suffering? Those
are the two things that have to be proved at the moment at the
magistrates' court beyond reasonable doubt and I think that really
and truly those are the two things that will continue to need
to be proved. The third thing that you have to prove is that the
animal that you are talking about is protected by the piece of
legislation. At the moment under the 1911 Act the animals that
are protected are domestic or captive animals. So at the moment
the 1911 Act does not apply to wild animals living in the wild.
It is quite similar really. You have to show that it is domestic
or captive under the 1911 Act, show suffering, show unnecessary
suffering, and it will be the same here under clause 1 really.
So say, for example, you bring a prosecution and you managed to
show that the animal suffered, you may not necessarily get home
on the "unnecessary" part. You may have the owner or
keeper saying, "Yes, I agree you have shown it was suffering
but it was suffering for a perfectly good reason, namely that
...". And so you have to as a prosecutor prove that it was
unnecessary suffering.
Mr Drew: I think what you have done is
to reaffirm in my mind that we are not redefining cruelty as such.
What we are doing is actually allowing the widening of the way
in which we would define this. As I say, now you have clarified
that you are breaking this down I think that would only be helpful
because the message that we were getting was that there was considerable
confusion over how this clause was going to be understood by those
who would have to prove the prosecutions.
Chairman: Could I make what I hope will
be a helpful suggestion to you because you may not have done it.
The Tax Law Rewrite exercise produced in the Capital Allowances
Act, as it is now, arguably one of the clearest statements of
what is complex tax law. The first few clauses of that use a description
and sign-posting technique which helps you to get straight into
the subject even if you know nothing about capital allowances.
It is about as near a piece of legislation I have read to a book
that you can read and follow. Given your observation about possibly
bringing the definition of "animal" forward and integrating
some of the terminology to avoid some of the confusion, a few
moments studying the first few clauses of the Capital Allowances
Bill might help tease out a less tortuous way of dealing with
some of these subjects. I recommend it to you as not just bedtime
reading (because it is far more exciting than that) but because
it is a genuinely well-drafted piece of legislation and I would
commend it to you. Mr Mitchell, you want to talk about mutilation.
Mr Mitchell: The question on this paper
says that exemptions from mutilation will include wing pinioning.
Is that correct?
Chairman: You have never had your wings
clipped, have you!
Q1002 Mr Mitchell: No, I have never had
them clipped, just ruffled! This is in respect of waterfowl for
conservation purposes. Is that definite or not?
Mr Bradshaw: That is currently
the intention, Chairman, and Mr Hoppe will say something on that
if you would like him to elaborate.
Mr Hoppe: That will be considered
under the secondary legislation. There is work currently going
on within the zoo industry on the best methods of pinioning and
also its necessity. We would want to look at the evidence that
comes out of this work before we make any definite statements
on whether or not it will appear, but it is certainly our intention
at this stage that it is something that should be covered in mutilation.
Q1003 Mr Mitchell: Okay. Let me move
on to tail docking in dogs (although this also extends to little
piggies and little lambies for agricultural purposes). Why is
tail docking going to be covered under mutilation? "Mutilation"
is a very emotive term and tail docking is an operation that has
gone on (and for certain breeding purposes it is necessary) for
a long, long time. Why does it have to be described in this emotive
way rather than as a cosmetic operation?
Mr Bradshaw: It may be helpful
if I give you the currently accepted definition of mutilation,
Chairman, which is "all procedures carried out with or without
instruments which involve interference with the sensitive tissues
or the bone structure of an animal, and are carried out for non-therapeutic
reasons".
Q1004 Mr Mitchell: That is how you intend
to define it in the Bill?
Mr Bradshaw: I do not think we
need to. That is the definition adopted by the Royal College of
Veterinary Surgeons.
Q1005 Mr Mitchell: That is their definition
but they do not enforce that on their own members because there
are qualified vets doing tail docking who have not been faced
with any retribution or prosecution or discipline from the Royal
College of Veterinary Services. So why should we be allowing them
in legislation to enforce a system which they do not enforce on
their own members?
Mr Bradshaw: I did not quite understand
that.
Q1006 Mr Mitchell: That is the Royal
College's definition but they do not enforce it on their own members
so why should we permit them to enforce it through legislation?
Mr Bradshaw: That is one of the
whole points of the Bill—that we are improving animal welfare—and
one of the areas in which we will see significant improvement
is by banning tail docking except for therapeutic or welfare reasons.
Q1007 Mr Mitchell: My question was why
not rather than define it as mutilation just define it as a cosmetic
operation?
Mr Bradshaw: Because I think the
definition that the Royal College uses is different from, for
example, other forms of alteration that do not involve the sort
of procedures in the way that they describe it. So it is making
a difference between cosmetic, such as having your toenails clipped,
and mutilation, which is an invasive procedure which is more serious.
Q1008 Mr Mitchell: Yes, but the case
I have just been putting to you is that the Royal College do not
enforce that definition on their own members so why will it be
used in legislation to deal with docking?
Mr Bradshaw: In what way do they
not enforce it on their members?
Q1009 Mr Mitchell: They do not enforce
it because vets are docking and are not disciplined.
Mr Bradshaw: Just because they
describe it as "mutilation" does not mean to say they
cannot do it because there is no law preventing them from doing
it.
Q1010 Mr Mitchell: If that is their definition
of what should not be done.
Mr Bradshaw: It is not, Chairman.
It is their definition of mutilation. It is not their definition
of what should not be done because there are no rules stopping
it being done.
Q1011 Mr Mitchell: Not even professional
rules?
Mr Bradshaw: Not as far as I am
aware.
Mr Bourne: As a member of the
Royal College, I would say that they discourage it strongly.
Q1012 Mr Mitchell: But they do not stop
it?
Mr Bourne: I am not an expert
on this but if they were to try to take somebody to disciplinary
proceedings for it I think they would find it very difficult to
prove they had brought the profession into disrepute because there
is not the legal back-up.
Q1013 Mr Mitchell: So we are enabling
them to discipline their own members in a way they are not able
to do professionally?
Mr Bourne: If it were to become
illegal then plainly it would be illegal and therefore a vet would
not be allowed to do it for cosmetic reasons.
Q1014 Mr Mitchell: Does that definition—because
it says "procedures carried out with or without instruments"—include
breeding practices which have effects on the bone structure, for
instance, of Pekinese skulls and breeding out tails in some breeds?
Does it include breeding as well as surgery?
Mr Bourne: I would not have thought
so, no.
Q1015 Mr Mitchell: Should we not be clear
on this point?
Mr Bradshaw: If what you are getting
at, Mr Mitchell, is whether there are concerns about some of the
exaggerated features that have been bred into pedigree animals,
then that is an area of concern and it is one that the breed organisations
and the Kennel Club have been actively addressing.
Q1016 Mr Mitchell: Will it be covered
by this definition?
Ms Connell: Can I make two points.
One is that breeding as an area of concern is potentially covered
in the regulation-making clause and it is in clause 6 at the moment.
Clause 6(2)(o) makes provision about the breeding of animals because
it is considered that it may be appropriate to regulate certain
breeding techniques if it was thought that that was necessary.
Can I just say about mutilations, I think that maybe the trouble
is "mutilation" as a word is a rather emotive word and
it sounds horrible but do not think that as a technical veterinary
term it is meant to only include the nasty, horrible things you
might do to deform an animal. It is intended to be just as it
says—procedures carried out with our or without instruments
that interfere with sensitive tissue. As we have just said, it
something that goes beyond cutting toenails or anything like that
which does not interfere with sensitive tissues. The position
at the moment on mutilations is that certain mutilations are already
regulated so some quite unpleasant sounding mutilations are already
banned in regulations. There are other mutilations which are regulated
in the sense you have to try something else first. So, for example,
you are not allowed to do tail-docking on piglets as a routine
thing. You have to try and address their needs for environmental
enrichment to stop them fighting each other first. There are also
other mutilations which only certain people can do. For example,
only a veterinary surgeon can do a certain operation or only under
certain anaesthesia. There are various things to do with mutilation
and the intention is to bring them all in one place so you can
see exactly what the situation is. The starting point is do not
mutilate except for this, this and this and if you are going to
do this type of procedure you have to do it in these situations
so that everyone can see exactly what is allowed and what is not
and under what conditions.
Q1017 Mr Mitchell: You are back to your
starting point. You said it could cover breeding.
Ms Connell: I would not say a
mutilation—
Q1018 Mr Mitchell: You are saying that
breeding practices which might be regarded as cruel or as deforming
the animal would be covered in another part of the Bill.
Ms Connell: We have made provision
in clause 6.
Q1019 Mr Mitchell: Right, but that is
fairly unspecific, is it not?
Ms Connell: Yes.
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