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Mr. Humfrey Malins (Woking) (Con): I wish to intervene briefly on this matter to support my hon. Friend the Member for Leominster (Bill Wiggin). Under Government new clause 9, as I understand it, the inspector may serve a notice, rather than having to serve one. That envisages the possibility—as my hon. Friend has confirmed, so I think that my understanding is right—that certain people may be served with a notice and certain people may not be served with one. Those who are served with a notice have an opportunity to remedy the situation and thereby avoid prosecution. Those who are not served with such a notice have no such opportunity at all and can be prosecuted without having the benefit of a notice. I can see no reason whatever why there should not be a uniform approach, involving the need to serve a notice in every case. Otherwise certain persons will be disadvantaged and become defendants, when if they had had the privilege of being served with a notice, they would not necessarily have become defendants.

No provision in the new clause governs the discretion in the service of the notice. We have no guidelines on when a notice may be served or when one may not be. I should like to know, for example, how the notice will be served. Will it be served personally or by post? I should like a little bit more information about the compliance time limits and, in particular, the provision whereby there may be a continuation of a period for the putative defendant to take such steps as are necessary, but I strongly support my hon. Friend. I hope that I have picked up the argument correctly when I say that in this case, it makes much more sense to use the word "must". Otherwise there will be two classes of potential defendants.

Mr. Greg Knight (East Yorkshire) (Con): Is not the word "may" commonly used in such circumstances? Is it not a way of drafting designed to indicate that the inspector shall serve the notice? If we change the word "may" to "must", how much further is my hon. Friend taking the argument? Is he suggesting that the inspector would commit an offence if he failed to serve the notice?

Mr. Malins: My right hon. Friend, as always, makes an interesting point. Of course, an alternative for the word "must", which my hon. Friend suggests in his amendment, could be the word "shall". I accept the point that my hon. Friend is making, but there ought to be uniformity. It is silly to have one rule for one thing but a different rule for something else. Defendants would turn up in court—I am sorry to say, they may appear before me.

Bill Wiggin: They would be lucky to do so.

Mr. Malins: It is kind of my hon. Friend to say so, but if a defendant said, "I must tell you, your honour, that I received no such notice from the inspector, but a friend of mine down the road received a notice and could
 
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remedy the situation and was not prosecuted. I would have taken action if I had received such a notice." I would be bound to take that into account as a mitigating factor, and I would regard it as absurd that one person should have a notice served on him without any particular reason and another person did not. My hon. Friend's amendment is compelling, and would bring much more sense to the otherwise sensible clause.

Mr. Drew: I would be grateful if the Minister clarified the provision. I was lucky to serve on the Standing Committee, where we were led to believe by the Minister that there were disadvantages in the process of serving a notice. The greatest disadvantage is one of time: some animal welfare issues may need to be dealt with immediately, but if a notice is served there are opportunities not just for delay but for someone to produce mitigating circumstances. The Bill is an animal welfare measure that presumes that we are thinking on the animals' behalf, so I would be grateful if my hon. Friend clarified whether the Government have moved towards accepting the Opposition's proposal of a yellow card as an alternative to peremptory action. Can he assure me that there would not be any delay? Our discussions in Committee suggested that urgent interventions could be necessary.

Bill Wiggin: We share common ground on the issue of cruelty and the need to tackle it urgently. The new clause, however, applies to the breach of the welfare offence, which is obviously a lesser offence. It is important to serve a statutory improvement notice, because we are not dealing with direct cruelty.

Mr. Drew: I agree, but there are gradations. What appears to be a welfare offence to one person is straightforward cruelty to someone else. Often, such matters are eventually decided in court; that is my dilemma.

Bill Wiggin: If that is the hon. Gentleman's dilemma and he is worried that he cannot decide without the court's help whether something is cruel or a welfare offence, surely the right thing to do is to issue the written warning. If owners ignore them and persist in their behaviour, it is clear that their intention is to be cruel. If they react immediately to the improvement notice and improve the animals' welfare, everyone has won, including the animals, on whose welfare the hon. Gentleman places key importance.

Mr. Drew: I largely agree with the hon. Gentleman. My only worry is that the treatment of an animal may not improve, leading to further delay. I would be grateful if the Minister assured me that the position will be clarified in regulations, as we need consistency. One inspector may issue a notice, and that is the end of their responsibility. Another inspector, however, may regard the same offence as a clear act of cruelty and take the animal into care, leading to a prosecution of the owner and so on. The Minister made a clear statement in Committee that that was not the Government's preferred approach, but if he can provide a good justification for the change I will happily go along with it.
 
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8.15 pm

Mr. Colin Breed (South-East Cornwall) (LD): I thought that I understood the provision until I heard the last few exchanges. I, too, served on the Select Committee that conducted pre-legislative scrutiny of the draft Bill, and we discussed improvement notices at considerable length. That was a worthwhile discussion, which is reflected in the Government new clause. The word "must" suggests compulsion, but timing is an important issue too. There are sometimes conditions under which it is impossible for improvement to take place in a realistic time scale. Improvement notices, however, should be written in such a way that they are meaningful. People should try to write something to show how, step by step within a reasonable period, the animal's welfare can be addressed and hopefully it can recover. On some occasions, however, the abuse has gone so far that it would be difficult to codify a notice to deal with the problem. In those circumstances, the only logical thing to do is to proceed to prosecution, because an improvement notice would be meaningless.

Bill Wiggin: The point that the hon. Gentleman is making is valid if there were a prosecution for cruelty. If neglect has taken place for such a long time that there is no possibility of improving the animal's welfare, the animal has been treated cruelly. The purpose of my new clause is to tackle the welfare offence, which is partly dealt with by default in the code of conduct. Evidence suggests that when people are issued with an RSPCA improvement notice the vast majority want to comply with it. The problem is dealing with people's ignorance, and the new clause would help to address that.

Mr. Breed: I am grateful to the hon. Gentleman. We may be talking about only one word, but that word is significant. We are all travelling in the same direction, as we want to try to ensure that the improvement notices are designed to address the problem. Sometimes, however, flexibility on the part of people who are judging the situation can provide a more just solution. We are therefore dependent on the issuing of the notice and on its terms. It is not sensible to adopt a prescriptive approach to the issuing of a notice, insisting on the terminology to be used and the issues to be addressed if the animal is in a dire situation. We must trust the people who will go out and investigate offences. If there is an obvious case of cruelty they will tackle it straight away. There are always borderline cases, however, and people will take a subjective view as to whether bad welfare extends into cruelty. The flexibility provided by the use of the word "may" offers that opportunity, so that is my preferred option.

Mr. Andrew Turner (Isle of Wight) (Con): I have listened carefully to the arguments advanced by the hon. Gentleman and, indeed, by my hon. Friend the Member for Leominster (Bill Wiggin). Surely, the problem is not poor welfare tipping over into cruelty but poor practice tipping over into poor welfare. For example, many of us believe that keeping two Alsatians in a flat is contrary to
 
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the animals' best interests, but does that constitute treatment that justifies the serving of a notice under new clause 9?

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