Examination of Witnesses (Questions 1060-1079)
MR BEN
BRADSHAW MP, MR
JOHN BOURNE,
MS CAROLINE
CONNELL AND
MR HENRY
HOPPE
27 OCTOBER 2004
Q1060 Chairman: So why can the same mechanism
not be imported into this?
Ms Connell: It could be, but in
many cases it is already going to be the position, because where
you have got the RSPCA they have said that they would tend to
do that in any event; where you have got other inspectors, again
they are almost—they are very often likely to give advice
before they would then start referring the thing to the prosecution
department. So the other inspectors are going to be local authority
inspectors or SVS inspectors. With the SVS they are already used
to issuing improvement notices, the local authorities are likely
to--
Q1061 Chairman: You are going to have
inconsistency. You are going have some animals where, because
of the farmed animal legislation, you can do exactly what you
have just described to us and other encounters with animals in
distress where an inspector has not got that legal comfort.
Mr Bradshaw: But they have got
it, Mr Chairman. There is nothing to prevent them doing it.
Ms Connell: The real crux of the
question, I suspect, is what is the legal effect of an improvement
notice? Because there is nothing to stop any inspector writing
on a piece of paper or writing officially and saying, "Unless
you do this, this and this you are going to end up in court",
so that is an improvement notice.
Q1062 Chairman: I appreciate that.
Ms Connell: The question is what,
effect does it have?
Chairman: Yes, but the point I am getting
at is that is exactly it. In other words, people need to know
where they stand and some of the inspectors under the farmed animal
legislation know precisely where they stand. They can go down
one of two routes: either prosecution or improvement, but in the
case of other species of animals that facility is not confirmed
in as precise terms as clearly appears to be the case on farmed
animals. I am going to shut up and pass the question back to Mr
Simpson, because I have trespassed on his time enough.
Q1063 Alan Simpson: I think that is precisely
the point in the representation we have had from the RSPCA that
appeared to say that they were quite confident that they had that
consistency of provision being incorporated into this legislation
too. As long as it was made clear that the same procedures applied,
then it took it away from there being a discretionary element
here which was out of line with the regulations already in place
for farmed animals, and I cannot see what it is that we lose?
Ms Connell: There is already discretion
in the case of farmed animals. You do not have to serve an improvement
notice; you could go straight to prosecution. You could either
prosecute under the welfare regulations as they stand without
bothering with an improvement notice, or, alternatively you could
prosecute for cruelty in relation to a farmed animal; and in both
those cases you do not have to issue an improvement notice. Under
the welfare regulations as they stand, the improvement notice,
if you issue one, you could then prosecute either for breach of
the improvement notice or for breach of the regulations; so you
have got two alternatives, but you may think that those both come
down to precisely the same thing at the end of the day, namely
a prosecution for breach of the regulations.
Q1064 Chairman: That is only for farmed
animals?
Ms Connell: Yes, but what I was
just going to say was that the same position would be the case
for non-farmed animals, that at end of the day, if you decide
to issue a voluntary improvement notice, as it were, you would
have exactly the same sanction at the end of the day. We think
this is what you need to do in order to comply with your duties.
If you ignore what we are suggesting, you may end up being prosecuted
for breach of the welfare duty. So really it comes to the very
same thing, that the sanction for the owner or keeper is, "If
I do not do what this inspector is encouraging me to do, then
I may end up being prosecuted." So I would say it comes to
really the same.
Q1065 Alan Simpson: I understand that.
I think I have borrowed Mr Austin Mitchell's obtuse qualities
on this one. I just do not understand why then we do not go for
the same wording so that there is consistency in both. If it comes
to the same thing, why do we not just say the same thing? It would
seem to me eminently sensible and by far the easiest way of approaching
that whole provision. I think we are flogging this point. It would
just be nice if you would look at what the compelling arguments
are for not having the same wording when we are seeking to deliver
the same framework. What I also wanted to move on to was just
to say, we have also had quite a lot of submissions relating to
the difficulties of enforceability and those who had attempted
to pursue prosecutions describing how frustrating it is that they
get one person to court and then find that the actual enforcement
process is frustrated by the technical ownership being transferred
to their sister, their girlfriend, their brother, whatever, so
it becomes a movable feast of animal abuse, but I think that whatever
views people took about the definitions, everyone was clear that
if we are going to have a framework that deals with animal welfare
those obvious loopholes about the transfer of ownership have to
be closed so that the patterns of systematic abuse cannot be carried
on under the normal guides belonging to someone else. Have you
looked at what the legislation might incorporate to close the
loopholes of current abuse?
Mr Bradshaw: Yes, we have, Mr
Chairman. That is one of the very important measures contained
in the Bill that we are satisfied will close those loopholes.
Q1066 Paddy Tipping: I want to stick
with the RSPCA for a minute. I think, Minister, you made it very
clear in your opening remarks that the phrase "inspector"
did not apply to the RSPCA, yet there is confusion about this.
I wonder whether you had thought about using alternate wording
in the Bill to use "approved person" so that this confusion
did not arise? That was the first point. The second point was
that the RSPCA does the vast majority of work in this area. It
is a private organisation using common law powers, yet it is delivering
public services. I think there is a set of issues around that
that need to be teased out. Why are we asking a charitable body
to produce so many public services for us? The third issue—I
am conscious of time so I am getting them all on the table at
the beginning—is an issue for the RSPCA, but certainly we
heard evidence, and I do not know if the evidence is right but
certainly this was a view that was put to us, that in a sense
the RSPCA—let me characterise it—was being wicked:
they were running prosecutions alongside their campaigns, and
there is a strong argument for saying the RSPCA ought to re-organise
itself so that its campaigning work and its investigatory prosecution
work are different and run down different strands of the organisation.
I would be interested in your comments on all those points?
Mr Bradshaw: I think on the latter
case, as you say, Mr Tipping, that is one for the RSPCA, but my
understanding is that they are quite strict about how they separate
those two functions. On the general role of the RSPCA as a voluntary
organisation, I think probably most of us would agree that if
we were trying to develop a comprehensive animal welfare legislative
framework we would not necessarily start from where we are now,
but that is where we are. We do have this, I think, wonderful
organisational that is a voluntary organisation with millions
of supporters that raises money through voluntary contributions,
and historically they have done the work on this, and I think
to try to reinvent some new statutory body that might take this
on, something that has been considered in the past, it would require
considerable public resources which this system will not require;
and, on the issue of inspectors, there may be a legalistic reason
why we have to use that definition, but I am perfectly happy to
look at different bits of terminology to avoid the confusion that
arises because the RSPCA calls a lot of its own officers "inspectors"
but they are not going to be inspectors for the purposes of this
Bill.
Mr Bourne: If I can make a short
comment. We will look at it. The reason why the word "inspectors"
is used, it is what is used throughout the animal health legislation,
etc, so there is a consistency in that direction as well as with
the RSPCA, but we are very happy to look at it.
Q1067 Patrick Hall: I would like to move
on to other areas regarding offences and the process of prosecution.
We have received some very thoughtful evidence from Paula Williamson,
who is a solicitor with Worcester County Council, based on her
experience pursuing a number of prosecutions of individuals for
cruelty to farm animals, and she observed that, because animal
welfare offences are summary only, magistrates are reluctant to
impose the higher sentences that are available to them, giving
rise to a perception generally that existing legislation regarding
animal welfare is somewhat weak and can be toothless. She said,
and she was strongly supported by a representative of ACPO at
the time giving evidence to us, that this weakness would be addressed
by making offences such as cruelty and fighting triable either
way, that is to say in the Crown Court rather than the Magistrates
Court only. Have you views on this and are you prepared to look
at this so that the way that these things are in practice dealt
with lives up to public's expectations rather than in practice
being somewhat seen as a second-rate and not such a powerful piece
of legislation?
Mr Bradshaw: Before asking John
to comment on whether there was specific conversation with the
Home Office about which courts are used, I would point out to
the Committee that both the imprisonment and the fines that are
liable for these offences will increase dramatically under the
Bill, but John, I think, wants to say something about discussions
that we had with the Home Office on which courts are the most
appropriate to try these offences.
Mr Bourne: Can I pass on to Henry?
Mr Hoppe: We did discuss this
with the Home Office and the Home Office considered animal welfare
offences in comparison with other types of offences; and the view
of the Home Office, which we accepted, was that what we have is
proportionate with other types of offences.
Q1068 Patrick Hall: That is interesting,
because the evidence that we got from Miss Williamson—she
gave an example, for example, a simple misdescription of a packet
of biscuits under the Trade Descriptions Act is triable either
way. I think the public would see offences of cruelty to animals
and fighting animals as far more serious, and yet that option,
that route, that way of dealing with things, which in practice
may help to secure the higher penalties that are available and
will be available, is more likely to be achieved through being
able to go to the Crown Court. I would ask, Minister, that you
do look at this issue again?
Mr Bradshaw: I will have another
look at it, but it does not mean to say we will change our mind.
Q1069 Patrick Hall: No, but people who
are working on this on the ground have day to day experience,
which is more than we have, of putting this point in a very helpful
way?
Mr Bradshaw: A lot of the evidence
that Mrs Williamson gave we have taken very careful consideration
of, and I think we have even—we will be amending aspects
of the Bill as a result of things that she has said, but I would
say back to her through you that the penalties for animal cruelty
are substantially increased as a result of this legislation, but
we have to bear in mind the pressure on the courts and also the
pressure on prisons. Not only that, but we have also, as I said
a moment or two ago, closed a loophole regarding disqualifications,
which, of course, in terms of the people we are talking about
is quite a serious punishment for them, disqualifying some, for
example, for life from ever keeping animals again. You do not
need to go through the Crown Courts to do that.
Q1070 Patrick Hall: Can I make one point
on the proposed much more serious penalties that the Bill puts
forward? Is there not a case for regarding animal fighting as
the most serious of all? After all, this is a deliberate organised
act done for betting and for profit, and would there not be a
case for looking at that, attracting higher penalties than are
available for anything else?
Mr Bradshaw: It is equal top with
cruelty, is it not? I think that is probably right. I am not quite
convinced that it should be higher than the worst incidences of
cruelty.
Q1071 Patrick Hall: It is an organised
business based on cruelty rather than somebody's lack of proper
attention?
Mr Bradshaw: Cruelty is not lack
of attention, Mr Chairman; lack of attention comes under the welfare
offence. Cruelty is deliberate cruelty which results in pretty
serious suffering, and I would think that cruelty and fighting
probably belong together at top of the seriousness list.
Mr Bourne: Could I say that we
would agree that fighting can be serious; we would also agree
that cruelty can be very serious. You can do both to make money,
and that is why we have increased the top fine to £20,000
for those particularly bad instances of fighting and cruelty.
Q1072 Chairman: Can I probe a bit more
about your reluctance to have these as either-way offences? Correct
me if I am wrong here. If I stole somebody's animals, an act of
theft, that is potentially a Crown Court offence, is it not? So
going in and being very nice to an animal but taking it gets me
into the Crown Court, but kicking the living daylights out of
the animal gets me into the Magistrates Court. It seems to make
some interesting commentary on man's responsibility to animals
when you appear to put property on a higher Richter scale than
animal cruelty. Why? How did the Home Office convince you, Mr
Hoppe, when you wandered in there and said, "We would like
to have some alternatives", and they said, "No, no,
no, welfare is lower on the Richter scale so you stick to the
Magistrates Court", but going and nicking an animal out of
a field gets you into the Crown Court? It does not seem very consistent,
does it?
Mr Hoppe: When we took advice
from the Home Office their advice was in the light of current
thinking of Home Office ministers as to what their sentencing
policy is.
Q1073 Chairman: What do you think? If
you go along to the Home Office and sit in, they are sitting dealing
with a myriad of things. You come and knock on the door and you
say, "Oh, it's Animal Welfare Bill here. How do you want
us to do it?" And they are thinking, "Crikey, look at
the cost of a Crown Court case. Keep them out of the Crown Court;
send them to the Magistrates; they understand these matters."
I do not sense that there is a battle fought to give you the legislative
flexibility that on very serious, nasty animal welfare cases you
might have wanted the Crown Court: because the point that Mr Hall
was making, which the lady from Worcester made—they had
three years dealing with a very complex case and she questioned
whether in fact the Magistrates Court was the right legal vehicle
to deal with a case of such complexity; and that, I think, was
at the heart of her concerns. Yet the Home Office seem to have
sent you away literally with your tail between your legs rather
rapidly on this. I do not get the impression you were fighting
the battle. You have got to defend yourselves to a certain extent?
Mr Bradshaw: If you would like
to make that comment in your final report, Mr Chairman, we will
take those arguments to the Home Office and see what they say,
but our priority is to get these offences prosecuted and get the
penalties for them increased.
Chairman: We do not want that. We do
not want you not to be able to do that, but I think I would commend
what Mr Hall said, to re-examine what this lady from Worcester
told us, because hers is a case-study of somebody who wanted to
prosecute in this area. It was not some hole in the wall little
outfit; they spent three years on this case. All that he is saying
is, give yourself the opportunity in certain cases to move it
one stage up to a prosecuting medium, if you like, or a vehicle,
that may give you a better chance of securing a prosecution than
simply leaving it in the Magistrates Court. I think that is all
she was saying.
Patrick Hall: Since ACPO backed her up,
perhaps the Home Office will listen to ACPO?
Q1074 Chairman: Indeed; there is a lot
of discussion. So we will make the call, Minister, we will certainly
do that, but we would be grateful for your assurance that you
will have a look at it again.
Mr Bradshaw: I certainly will
Chairman: Mr Hall, do you have some other
questions to ask?
Patrick Hall: No.
Q1075 Chairman: Let us proceed. One of
the things that has caused considerable concern from those who
are involved in this whole enforcement inspection procedure is
the question of the costs of enforcement; and the feeling I got
from those, certainly from the world of local authorities who
contributed, is that they do not really have the necessary additional
resources. Your regulatory impact assessment says this whole thing
is very low key and they can all absorb it, but that is what government
always says to local authorities when it is handing out new areas
of responsibility. The police made it very clear to us that as
far as welfare was concerned, as opposed to cruelty, they did
not want to get involved in that because they had other things
to do and welfare would come fairly low on the Richter scale.
So in the light of the evidence that has been presented on the
resource implications, and, bearing in mind too the RSPCA's observations
to the Committee, I think they had something like 120,000 cases
they had to look at but only a thousand resulted in prosecution,
and here we are opening up opportunities for prosecution in a
new way. Are you really happy that the resources are there to
make this an effective piece of legislation, particularly that
the bodies that are going to have a statutory remit have got sufficient
resources to put their heart and soul into dealing with the new
responsibilities that this Bill will confer upon them?
Mr Bradshaw: On local authorities,
to begin with, this is one of the reasons why, going back to your
earlier questions about the timescale for secondary legislation,
we need some breathing space to allow for the regulations to come
in on licensing livery yards and pet fairs, for example, because
there will be extra responsibilities on local authorities; but
local authorities will be expected to charge for these services
and, through any charging mechanism, will be expected to recoup
their costs. There is no reason why they should not be able to
do this. Cost recovery is a principle that runs through government,
so there is no reason why it should not run through local government.
There is no reason why the police should need to get involved
in the basic welfare issues. This is an area which we envisage
the RSPCA dealing with primarily; and the RSPCA—I do not
know whether they in evidence to you, but certainly in some of
the papers I have read—anticipate that the only extra demands
on the police would amount to, they estimate, 100 cases a year
where they might need to call on the police to help them get access
to a property where they are being refused access; and I think
following the evidence that was given by Mr Brodsham(?), we have
managed, through correspondence, to reassure him this would be
the case. But overall, Mr Chairman, the whole point of this Bill
is prevention; it is a bill to prevent cruelty. So although I
accept there may in the short-term be extra burdens particularly
on the RSPCA in terms of work, in the medium to long-term, because
the Bill will help us prevent suffering actually occurring, the
work-load will fall and the number of cases that we need to bring
to court to prosecute will fall as well.
Q1076 Chairman: But Minister, that is
slightly out of kilter with the scope and the scale of the secondary
legislation which will offer new opportunities for inspection,
and one of the messages from local authorities was their concern
about their lack of in-house expertise, in some cases, to deal
with these matters, and their need to go out and buy in expertise.
First, has all of that been properly costed into your regulatory
impact assessment, and secondly, what efforts have been made to
see whether there are other ways of achieving the objectives of
this Bill that will be less expensive? In other words, not to
go down the legislative route but an alternative route. Has that
been examined?
Mr Bradshaw: What do you mean
by "not going down a legislative but going down an alternative
route"?
Q1077 Chairman: You have mentioned this
question of guidance, as to whether in fact that might have been
a less costly route than simply having the draconian enforcement
as the alternative.
Mr Bradshaw: There will be guidance
in all of these areas based on codes of conduct which will be
drawn up, and our department is considering at the moment what
financial help we can give to local authorities, for example,
for training of people in this area of expertise; but I return
to my original point that the burden will fall on those premises
that, as a result of the secondary legislation, for the first
time are brought under a licensing or regulatory regime. They
will have to pay a fee to cover the full cost. We would expect
local authorities to set those fees at such a level that they
do recover their full costs.
Q1078 Paddy Tipping: How can we promote
good practice amongst local authorities? Some of them are pretty
small district councils and there is a feeling around that they
might not have the knowledge and resources to do it. Alongside
that we have heard some evidence to suggest that one of the ways
that you might improve the performance of local authorities is
to look at the notion of an animal welfare commissioner who would
be there to promote good practice, who would supervise the SVS
and maybe, if the notion of improvement notices were put forward,
one would look at that as a body you might appeal to. I understand
there has been some discussion within the Department about an
animal welfare commissioner. What is the thinking on this? Why
did you not come to a conclusion to bring this forward?
Mr Bradshaw: On the limited capacity
of local authorities, there is no reason, Mr Chairman, why local
authorities should not be able to pool resources or work collaboratively.
Henry, who has a lot more experience going back longer than I
have on the debates over an animal welfare commissioner may wish
to say something, but, as your Committee will be aware, the Department
recently launched a new animal health and welfare strategy which
goes much wider than the sort of welfare issues we are talking
about now and, I think, does provide a framework within which
not just the SVS and other agencies but also local authorities
would be expected to work.
Q1079 Paddy Tipping: Henry, would you
give us a quick synopsis, pros and against the animal welfare
commission?
Mr Hoppe: Obviously it has some
attractions, but what we do want under this Bill is greater central
involvement in raising standards among local authorities and in
encouraging cross-border working. The Minister has referred to
the health and welfare strategy and the encouragement that the
strategy will give to breaking down barriers between the various
enforcement agencies, and we are also looking at setting up an
animal welfare database, which will mean that we will provide
a central pool of information to help local authorities and other
enforcement agencies, and also it will give us an opportunity
to monitor the performance of local authorities and to identify
any local authorities which seem to be having any particular problems
with regard to timeliness or delivery of service. So there is
going to be a much greater involvement in the centre, and also
we are looking at ways of improving the quality of local authority
inspections; and so we anticipate that there will be a greater
involvement by veterinary surgeons so that when a local authority
inspector goes out on a visit it is going to be much more likely
that he will be accompanied by a vet, and that, again, we believe
will significantly improve the quality of service.
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