Memorandum submitted by Alan Bates
1. I am a barrister with a keen interest
in animal welfare law and as a member of ALAW (the Association
of Lawyers for Animal Welfare).
2. In my view there is much to be commended
in the Bill. My response, however, is directed only at one aspect
of the Bill. The Bill as it stands would repeal the Pet Animals
Act 1951 ("the 1951 Act"). My concern is that the regulatory
regime that replaces the pet shop licensing regime that currently
exists under the 1951 Act would allow temporary pet fairs (often
referred to as "one day sales"), and my concern is that
such a change would have serious adverse effects on animal welfare
and create a risk to public health. The legal position that pertains
to temporary pet fairs is a matter as to which I have previously
provided legal advice and written, and I have therefore confined
myself to that aspect of the Bill, as that is the aspect as to
which I have a particular expertise.
3. The draft Bill would repeal the Pet Animals
Act 1951, which requires keepers of "pet shops" (a phrase
which is defined by the Act to include all premises from which
a business of selling animals as pets is carried out) to be licensed.
The 1951 Act also bans the selling of animals as pets in public
places and from market stalls. If the Bill were to be enacted
in its present form, the requirement that pet shops be licensed
would be a matter of delegated legislation made pursuant to what
is currently Clause 6(2) of the Bill.
4. Defra plans to weaken the current pet
shops licensing regime in order to allow temporary pet animal
fairs to take place. I, along with the majority of licensing authorities
(borough and district councils) who have had to deal with this
issue, regard these fairs as illegal under the 1951 Act.
5. These temporary pet fairs, which often
involve the selling of many thousands of birds or exotic animals
in the course of a sale over a day or a weekend, raise very serious
animal welfare, public health and conservation concerns. The format
of these fairs is that of a large market at which independent
animal importers and dealers have stalls, on the trading model
of a car boot sale (though it is usually held indoors). The organisers
of these fairs are not concerned with the selling of animals themselves,
but charge the dealers stall rental fees. The selling of the animals
is done by individual stallholders, with whom the practical (and
legal) responsibility for the care of the animals rests.
6. Defra's intention to effectively legalise
these events is not in any doubt. Defra, which has come under
sustained pressure from the organisers of such fairs, intends
to make specific provision for temporary pet fairs to be licensed.
This has been dressed up as a pro-animal welfare measure. The
reality is, however, that it is a retrograde step. Regulation
of temporary pet fairs is equivalent to legalisation of these
fairs. It is also possible that Defra will abandon the current
ban on selling animals in public places and from market stalls
in order to ensure that these "regulated fairs" can
take place.
THE RELEVANT
CURRENT LEGISLATION:
THE PET
ANIMALS ACT
1951
7. Section 1 of the 1951 Act makes it an
offence to "keep a pet shop except under the authority of
a licence granted in accordance with the provisions of "the
Act". The section provides that a local authority may attach
conditions to secure that:
(i) animals are kept in suitable
accommodation;
(ii) animals are supplied with
food and water and visited at suitable intervals;
(iii) mammals are not sold at
too early an age;
(iv) reasonable precautions will
be taken to prevent the spread of infectious diseases; and
(v) appropriate steps will be
taken in the case of fire or other emergency.
8. The definition of a "pet shop"
is provided in section 7(1):
"References in this Act to the keeping of
a pet shop shall, subject to the following provisions . . . be
construed as references to the carrying on at premises of any
nature (including a private dwelling) of a business of selling
animals as pets, and as including references to the keeping
of animals in any such premises as aforesaid with a view to their
being sold in the course of such a business, whether by the keeper
thereof or by any other person." (Italics supplied.)
9. Section 7(3) defines "animal"
as including "any description of vertebrate" (birds
are therefore included). The word "pet" is not defined,
but, in the case of cats and dogs, the Act relates to those sold
or kept "wholly or mainly for domestic purposes" (s
7(2)(a)).
10. Section 2 makes it an offence to "carry
on a business of selling animals as pets in any part of a street
or public place, or at a stall or barrow in a market"
(italics supplied).
TEMPORARY PET
FAIRS ARE
CURRENTLY ILLEGAL
Section 2 of the 1951 Act: the events are illegal
11. Temporary fairs that take place in public
places (which I believe would include schools, sports facilities
and other places to which the public have access, whether on payment
of a fee or otherwise) amount to the selling of pet animals in
a "public place", contrary to section 2 of the 1951
Act. Even if a fair does not take place in a "public place",
it will involve the selling of animals as pets from market stalls,
which is also prohibited by section 2. There appears to be no
reason to think that an indoor market is any less unlawful than
an outdoor market. The common law definition of a "market"
is "a concourse of buyers and sellers". The selling
of animals from independently-run stalls in an open-plan setting
would come within that definition.
12. I am supported in my view by the approach
of a number of local authorities whose refusal to grant licences
for the selling of animals at temporary or permanent indoor events
has been upheld on appeal by magistrates' courts: see, eg Rogers
v Teignbridge District Council (Torbay Magistrates'
Court, 7 November 2000); Rapa Limited v Trafford Borough
Council (Trafford Metropolitan Magistrates' Court, 18 June
2002). See also the Scottish case White v Kilmarnock
and Louden District Council 1991 SLT (Sh Ct) 69. I am not
aware of any court ever having taken the contrary view.
Even if the fairs are not illegal pursuant to
section 2, individual stall-holders require a pet shop licence
13. Even if I were not correct as to the
application of section 2 of the 1951 Act, all of the fairs that
are currently held would still be illegal. As recognised by most
local authorities, it is not possible to grant a single pet shop
licence to the organiser of a fair because the organiser is not
"carrying on a business of selling animals as pets"
(see section 7(1) of the Act). Rather, he is carrying on the business
of organising an event. The business of selling animals as pets
is undertaken by the individual stallholders (many of whom are
large businesses, some of which are not even based in the UK).
Each of those stallholders must be licensed. Not only is that
required by the Act, it also accords with the purpose of the legislation.
The party to be licensed is the party with responsibility for
the welfare of the animals being sold. The organiser does not
bear that responsibility. Since, inevitably, the individual stallholders
at temporary pet fairs are unlicensed, it is clear that all of
these events are illegal.
14. Most local authorities make it clear
to organisers of these events that, if a fair takes place within
their local authority area, enforcement action is likely to follow.
The reason that the traders have been lobbying DEFRA so keenly
is that these fairs have, until now, been confined to the minority
areas where the local authority takes a different view of the
law and is prepared to grant a single licence in respect of the
whole event.
TEMPORARY PET
FAIRS SHOULD
NOT BE
LEGALISED
15. I make these submissions as a lawyer
with an interest in animal welfare law. Accordingly, I leave the
submissions as to the policy reasons why these fairs should not
be licensed primarily to the more generalist animal welfare organisations.
In that regard, I note that the RSPCA, Animal Aid and the Animal
Protection Agency are all opposed to the legalisation of temporary
pet fairs, and I understand that those organisations are making
their own submissions to the Select Committee. In particular,
I note the concerns that have been expressed by Animal Aid about
the bird fair that was held in December 2003 at the National Exhibition
Centre, at which around 25,000 birds are believed to have been
offered for sale. Many concerns about the welfare of the birds
were expressed in that report, which was backed up by evidence
obtained from undercover investigators who attended the event.
I understand that Animal Aid and the Animal Protection Agency
will be making their own submissions with respect to the findings
of that report, and I fully endorse their concerns.
16. I also have concerns about the potential
for some of these fairs, particularly those that involve the selling
of wild-caught birds and reptiles, to be used as a cover for wildlife
crime. Imported endangered species can easily be disposed of in
a large fair involving the sale of many thousands of animals.
17. In addition, these events pose serious
risks to public health. Tropical birds, in particular, are well
known to pose certain risks to human health, and large temporary
bird fairs (which dealers often use to dispose of sick animals
quickly) provide a rich pathogen reservoir and an environment
laden with opportunities for animal (including bird) to human
microbial transmission. In that regard, I note the recent avian
flu and SARS epidemics in Asia which are known to propagate in
animal market-type situations.
FLAWED CONSULTATION
18. In their consultation exercise, Defra
asked the question whether one-day pet fairs should be regulated.
Unsurprisingly, many respondents answered "yes" on the
basis that regulation was preferable to these events taking place
without any regulation at all. In our view, the question asked
was misleading. The true question should have been, "Should
one-day pet fairs be legalised?" Despite the misleading question
asked, the RSPCA and many other animal welfare expressed a clear
view that such events should continue to be prohibited or, for
the avoidance of any doubt, specifically banned.
19. I note that 30 bird fanciers clubs supported
regulation, while two did not (see Defra's summary of consultation
responses, p 61). The fact that bird fanciers' groups are aware
that most local authorities regard temporary fairs as illegal
and will not allow them to be held is demonstrated by the marshalling
of the bird fanciers' lobby to support regulation. They know that
regulation amounts to legalisation. The fact that these groups
are not interested in advancing the cause of animal welfare is
evidenced by their answers to the other questions that they were
asked. Of the 14 bird fanciers' groups who responded to the question
on the proposed new "unnecessary suffering" offence,
for example, 11 opposed it, and not one supported it. That bears
testimony to the true motives of these groups in pressing for
temporary pet fairs to be regulated.
REQUESTED ACTION
20. Although the legislation by which Defra
plans to replace the Pet Animals Act 1951 and legalise temporary
pet fairs is intended to take the form of subordinate legislation
made under Clause 6(2) of the Bill, the Select Committee and Parliamentarians
are not powerless to stop this change while still supporting the
passage of the Bill.
21. I therefore urge the Select Committee
to send a strong signal to Defra that the Animal Welfare Bill
should not be used to weaken the protection afforded to animal
welfare by abolishing existing regulatory and licensing regimes
and replacing them with subordinate legislation that is less protective.
22. Unless Defra is willing to give an assurance
to Parliament that temporary pet fairs will not be legalised but
will instead be prohibited, I would urge MPs to amend the Bill
so that the Pet Animals Act 1951 is not among the list of statutes
that the Bill will repeal. I do not believe that the continuation
in force of the 1951 Act alongside the enacted Bill would cause
any legal difficulties. It is to be hoped, however, that the Government
will give the assurance being sought from them.
24 August 2004
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