Examination of Witnesses (Questions 1040-1059)
MR BEN
BRADSHAW MP, MR
JOHN BOURNE,
MS CAROLINE
CONNELL AND
MR HENRY
HOPPE
27 OCTOBER 2004
Q1040 David Taylor: Yes, I think that
is the case, and I can link it into the second half of the question,
which would be to require the Secretary of State, or the Welsh
Assembly, or whoever it might be that is making regulations, to
certify that the use of clause 6 is based on scientific evidence.
We heard the Chairman put to the Minister a minute or two ago
the fact that value judgments are necessary and you sometimes
do pick and choose from the scientific evidence that is available.
So is that something that was considered as well, to require scientific
evidence to point the direction of the proposed regulation?
Ms Connell: I think it almost
goes without saying really.
Q1041 David Taylor: Does it?
Ms Connell: That there would need
to be some form of justification, almost certainly taking the
form of scientific evidence, or some sensible basis for the regulations.
I think the regulations break down into various sub-groups. For
example, there will be certain regulations which will carry forward
the regulations that come from Europe, effectively. So farmed
animal welfare already is implementing European directives and
therefore there is not much room for manoeuvre, frankly, when
you are implementing a detailed European directive. The same is
true of transport; and there is a directive at the moment which
is implemented which lays down provisions about that. So that
is one area where it might look alarming, but, in actual fact,
it is just a question of carrying on the existing structure. Where
you are talking, I think, more about something completely new,
then—
Q1042 David Taylor: You are saying it
is implicit—
Ms Connell: I think it is implicit,
because—
Q1043 David Taylor: —that it would
be reasonable, that it would be necessary to either promote to
ensure animal welfare, and that it would probably be based on
scientific evidence; but the problem is that, I think, whilst
scientists differ, may be not as much as economists and lawyers,
there can be very different scientific approaches and evidence
on mutilations or ways in which animals are kept as to whether
or not that is inimical to the welfare of those animals. Scientists
may differ, might they not, on that?
Ms Connell: They may.
Q1044 David Taylor: And do so. So why
did you not consider a requirement that—. Would you, in
fact, consider including this in the Bill, before it reaches its
second reading, a requirement of that kind, scientific evidence
being provided at the regulation stage?
Ms Connell: I think the difficulty,
as you have said—
Q1045 David Taylor: You agree with Bill
Wiggin that there is an awful lot that is left out here in the
legislation.
Ms Connell: I think the point
is, as you have said, it will be very problematic to say that
the regulations—what would you say—must be based on
scientific evidence?
Q1046 Chairman: Your Minister said so
earlier on. He said, "Everything we do is based on science."
We are only following his line.
Ms Connell: Quite, but if you
say that, how can—I do not see that that particularly assists,
because at the end of the day somebody has got to look at the
available evidence and make a decision about what they think is
reasonable to make regulations about and what they think ought
to go into the regulations. If you make a patently silly decision
about that, then you are already open to challenge, as things
stand at the moment.
David Taylor: I am not certain, Chairman,
that trying to ensure animal welfare and requiring proof of some
scientific support is silly, in the way that Caroline points out.
Q1047 Chairman: I want to move on because
I think we will have an opportunity to comment on that in the
report. Minister, I am sorry, I cut you off earlier on. You may
have wanted to make further comment about clause 6. We are sticking
on that subject, and Mr Tipping wants to move the questioning
further.
Mr Bradshaw: It is just when Mr
Wiggin said that all the important stuff is secondary legislation,
this is a—
Q1048 Mr Wiggin: Not all?
Mr Bradshaw: Or most—I cannot
remember your exact wording—but this is a popular misconception
about this Bill, because the most important stuff is duty of care,
and that duty of care applies across the board to everything that
we have talked about, to all the people who have given you evidence
on pet fairs and circuses and everything else, regardless of what
the secondary legislation then done through regulation actually
does, and I think that is always very important to bear in mind.
Q1049 Paddy Tipping: There will be opportunities
to look at the secondary legislation later on and theological
debates around that. I wanted to pick up a point you made earlier
on when you very robustly said you wanted me to consult on the
regulations—put on the face of the Bill the need to consult—but
I noticed when it comes to codes of practice in clauses 7, 8 and
9, there is a statutory need to consult on codes of practice.
There just feels to be a bit of inconsistency here. Why is it
different?
Mr Bradshaw: I hope I have not
given the Committee the impression that we are not keen on consulting.
We are very keen on consulting. We welcome this pre-legislative
scrutiny process and we intend to consult on all aspects of secondary
legislation and ensuing regulation as a result of this Bill; but
what we were not keen on doing is putting a duty on ourselves
to consult in a particular way on the face of the Bill. As far
I am concerned, it is taken as a given that we consult on these
things, and in some areas there are government conventions that
oblige us to and in others there are legal conventions, and codes
of practice might be one of these, but Caroline may be able to
help you on that.
Q1050 David Taylor: It just seems very
strange to me that the regulation that is going to become part
of the law, the code of practice lies behind that, and yet you
are saying, "On the face of the Bill we are going to consult
on the codes of practice", but you said very vigorously to
us earlier, "No, I do not want anything on the face of the
Bill that makes us consult about the regulation." It does
not seem logical basically.
Mr Bourne: I think the Minister
has explained why we do not think consultations are necessary,
in that they will happen anyhow. I do take your point about the
apparent contradiction, and it is one that we have talked about,
and the historical reason, if you like, is because the right to
consult is enshrined, or the need to consult is enshrined in—I
cannot remember, is it the 1968 Agriculture (Miscellaneous Provisions)
Act—and it has been carried over. That is why it is there,
but I do take the point that there is a slight contradiction,
yes.
David Taylor: I can see you are thinking
about this. That is fine?
Q1051 Chairman: Can I ask under the areas
which clause 6 is supposed to be covering in due course, have
you got work, Minister, currently being planned or undertaken
to inform the nature of the secondary legislation, certainly in
terms of the first tranche, to give you, if you like, factual
and scientific backing to what you are doing or proposing to do?
Mr Bradshaw: Yes.
Q1052 Chairman: Which areas are they?
Could you briefly tell us?
Mr Bradshaw: There is ongoing
work on almost all of the areas that we are intending to take
forward to the secondary legislation, and that will continue.
If and when we get this Bill, we will obviously want to concentrate
on those areas that, for one reason or another, we want to deal
with through secondary legislation first, but, as you will be
aware from the discussions you have had with a number of the stakeholder
groups you have seen, debates and discussions with my officials
and between groups is going on all the time on these areas and
has been going on irrespective of this Bill and the scrutiny that
you have been giving it.
Q1053 Chairman: I think it would be quite
interesting to know in a little more detail but not now. Perhaps
you might let us have a note as to exactly what work is going
on, particularly into the main areas that will be in the first
tranche of your secondary legislation, so that we might have a
clearer insight?
Mr Bradshaw: Mr Hoppe is happy
to give you a clear insight now if you have got time.
Chairman: I am trying to save time because,
we have a lot more questions to ask and a piece of paper listing
it down will be extremely useful. I would like to move on perhaps
to Mr Simpson.
Q1054 Alan Simpson: Minister, I am very
interested in the way we take the legislation, not just in terms
of its reach, but its enforceability. It seems to me that the
Committee has had a lot of evidence submitted to it about how
far the powers of intrusion should exist, how enforceful they
might be. The question I would like to start off with is some
of the representations specifically focus on whether there should
be scope for a statutory inclusion in the Bill with reference
to enforcement notices that are currently being undertaken or
issued by the RSPCA on a voluntary basis. Have you considered
whether such should be included on the face of the Bill?
Mr Bradshaw: Do you mean the improvement
notices?
Q1055 Alan Simpson: Yes?
Mr Bradshaw: Warnings. We have
considered that and we have listened carefully to what the RSPCA
has had to say. I think we have come to the view, although we
may still be convinced otherwise, that we do not want to be prescriptive
in this area, that if the RSPCA or other enforcement agencies
wish to use warnings, either written or verbal, as part of the
enforcement process, they are allowed to do so, currently they
will be allowed to do so under this Bill, but to lay down some
hard and fast rule that this should always happen before a prosecution
is taken out, I think, would make it more difficult for them or
would deprive them of the flexibility to take action immediately
if they think a case is serious enough and they do not want to
go through that kind of warning process.
Q1056 Alan Simpson: I think it is just
that for those who object to that process it is hard to know who
would decide whether the early notices could or should be appropriately
given, whether it should just be for the RSPCA to decide that
it goes to a straight prosecution. You do not feel that the current
voluntary arrangements actually require any tightening up at all?
Mr Bradshaw: No. We think they
work well. We do not—. Just because there is not a reference
to this on the face of the Bill does not mean to say that warnings
will not still play a large part in the enforcement under this
Act, but we think it is best to leave it to those people on the
ground who actually know about the case and its relative seriousness
as to whether they think using warnings would be a useful first
step or whether the case is that serious that they need to take
action immediately.
Alan Simpson: Can I move from improvements
to enforcement?
Q1057 Chairman: Before Mr Simpson moves
on, because he is very kind and flexible, I am a little confused
about this; because the way the Bill is drafted you have committed
an offence in terms of the Bill, if you like at the point of first
encounter. If somebody, bearing in mind you are dealing with civil
powers, a person seeing these events could, if they wanted to,
take out a private prosecution and say, "You are breaking
the law", and yet the RSPCA when they came to see us made
it very clear that they achieve more as a result of their idea
of an improvement noticed because they want to stave off the time
from going to prosecution. That is the RSPCA's point of view,
but the Bill allows for other organisations to appoint persons
who are described as "inspectors" in this, and we take
the point about what "an inspector" constitutes but
they may not be bounded by the same, if you like, constraints
that the RSPCA impose upon themselves, yet there may be an opportunity
for somebody to put matters right, if you like, get a first warning.
I appreciate that there may be a situation which so is severe
that you have to take immediate legislative action, but I am surprised
there is not something to put a little buffer in where a matter
can be fixed before a prosecution has to take place. On the basis
of the Bill, it literally goes from observe event to prosecution.
Mr Bradshaw: I do not see how
it changes the status quo, Mr Chairman. We are still leaving it
up to the judgment of the inspectors on the ground, be they RSPCA,
local authority or SVS, as to whether the seriousness of the offence
that they come across warrants a warning, whether they think that
that can alter behaviour, or whether it is so serious that they
think it warrants prosecution, but Caroline may wish to add something.
Ms Connell: Yes. You said: should
there be enshrined a buffer? I think the first point is it would
be a pity to require that in every single case where, in fact,
it was not appropriate in some cases because it was patent that,
for example, you could ask all you like for someone to improve
their position but they are not going to bother doing it, and,
therefore, you may say to yourself, "What is the point of
giving them an improvement notice when it is plain that nothing
is going to change", or you may say, "It is so urgent
that I do something, there is no point in waiting for six weeks
for an improvement notice to take effect." So that might
be the situation in one case. The other situation is that in the
case of farmed animals, the Farmed Animal Welfare Regulations
already provide for improvement notices.
Q1058 Chairman: What about non-farm?
Ms Connell: Quite; I was going
to come to that. So in the case of a farm—-. But you are
not obliged to issue an improvement notice even in farmed animal
cases. The inspector may decide that that is the best way forward,
and in many cases, in fact, there was guidance given about a year
ago trying to encourage better use of improvement notices in the
case of farmed animals, so—
Q1059 Chairman: Let us be specific. Are
you saying that the farmed animal legislation contains in a piece
of legislation?
Ms Connell: Yes.
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