Examination of Witnesses (Questions 1
- 19)
TUESDAY 15 NOVEMBER 2005
MR BEN
BRADSHAW MP, MR
JOHN BOURNE
AND MS
CAROLINE CONNELL
Q1 Chairman: We have the Minister
with us for animal welfare matters accompanied by John Bourne,
Head of the Animal Welfare Division, and Caroline Connell, the
Defra lawyer who has been very helpful to the Committee, as has
Mr Bourne, in our previous considerations of the Bill. For us
it was a novel experience carrying out pre-legislative scrutiny
on this Bill, we certainly learnt a lot about it and it was a
process we enjoyed. We think the Select Committee was able to
make some important contributions to improving the draft of the
original Bill, but can I ask what your Department itself learnt
from this process?
Mr Bradshaw: That may be a better
question for my officials rather than me.
Q2 Chairman: If you want to ask them,
they are here.
Mr Bourne: Chairman, we found
it a very useful forum for hearing people's views, in addition
to those we had heard in our own consultation, and in particular
around the framework of the draft Bill. Yes, there is not much
more to say other than that we found it a constructive experience
and we very much hope, as you say, as a result the outcome is
a much better draft Bill which has been introduced into Parliament.
Q3 Chairman: I appreciate you will
not be directly involved in the Marine Bill when it eventually
appears, or you might beyou might volunteer to do that
taskbut are there any things you might do differently in
terms of the pre-legislative process which you did not do on this
one?
Mr Bourne: There is always the
issue of timing. We went through a widespread public consultation.
There is an issue of, having published a draft Bill, whether one
could go through another public consultation as Defra before going
to pre-legislative scrutiny, and the decision on that is always
likely to be taken on a case by case basis depending on the timetable
that is driving that particular Bill.
Mr Bradshaw: We are also mindful,
Chairman, of your Committee's capacity and enthusiasm or otherwise
for doing the work and the tensions which have existed in the
past sometimes with the Lords and whether they might have a say
in pre-legislative scrutiny as well.
Q4 Chairman: I am sure there will
be lessons learnt for us all. Let us move on to the Bill. One
of the significant changes has been the way that you have altered
the start of the Bill in terms of the definition of animals, and
we had quite a lot of evidence as to what the legislative definition
of animals should be. We are still receiving submissions about
the fact that cephalopods and crustaceans are not part of the
process. In fact, in clause 1(4) of the Bill, you talk about the
fact that scientific evidence underpins the definition that you
are prepared to accept as to what is an animal, but it is clear
there is a difference of opinion within the United Kingdom on
the science. As I understand it, the Scottish Parliament's parallel
Bill to this contains a different definition of what is an animal.
So if within the United Kingdom there is a lot of common science
to base these assessments on, why is there a difference? What
is this scientific opinion which is determining these matters?
Mr Bradshaw: John may want to
comment on the detail of the scientific opinion. I accept that
this is one of the few recommendations you made we have not accepted
because the advice I have received is that the scientific evidence
at the moment would not merit the inclusion of crustacean and
cephalopods in the definition of animals which can feel pain.
John may want to comment on the difference in the Scottish Bill.
I am advised we do not think there is a difference, Chairman.
Mr Bourne: I have the Scottish
Bill in front of me and I am slightly bemused, Chairman, as to
what the difference is.
Q5 Chairman: That is what I was advised
when I was reading round the subject and there is a voluminous
amount of material. I will put my hand up and apologise if I am
wrong. Are you telling me it is exactly the same wording?
Mr Bourne: As far as I am aware.
Mr Bradshaw: Would it help if
we read it out, Chairman?
Q6 Chairman: Yes.
Ms Connell: The Scottish Bill
says, "animal to which this part applies . . .", that
is the part on animal welfare because, as you know, there is a
part on animal health, ". . . means a vertebrate other than
man", so I do not think that covers cephalopods and crustaceans,
does it?
Q7 Chairman: I suppose that is a
slight difference in wording. Certainly in other jurisdictions,
like Australia for examplesaid he swiftly moving on from
Scotlandthey do have cephalopods and crustaceans in their
animal welfare law. What is the difference? I do not know whether
you talked to the Australians to be able to answer this question
but why do they scientifically think it is correct to have cephalopods
and crustaceans in their Bill and we do not? Does it not come
down to the interpretation of science?
Mr Bourne: Yes, up to a point.
Science will always illustrate but it rarely gives a definitive
answer, and particularly in the world of animal welfare where
there is usually an ethical element in any decision. I think it
is worth bearing in mind that animal welfare bills in other jurisdictions
are framed differently and interact differently with other legislation
in that jurisdiction. Chairman, we have tried to keep a reasonably
consistent approach across the legislation in this country so
that there is a consistent approach for people to understand and
it is different in New Zealand and Australia and other places.
Q8 Chairman: We have received some
further evidence from the Shellfish Network[2]and
I do not want to go over ground we have covered in some detail
beforeand they make to the layman a fairly strong case
that the animal species I have just mentioned have characteristics
to be able to feel pain.[3]
On that basis, as a layman reading that, you would say, "Why
not?" Why not on a precautionary principle put them in so
they are covered and if it turns out afterwards they do not feel
pain, you can always take them out, just as you can reinterpret
the science and put them in. Why not put them in on a precautionary
principle? Why do you say, "No, we completely dismiss the
evidence which has been put forward by scientists" who would
argue those species do have complex brain and nervous systems
and do show the characteristics of experiencing pain under certain
circumstances?
Mr Bradshaw: You have to draw
the line somewhere, Chairman, and this Bill gives us the flexibility
which we have not had before to add species if and when the scientific
evidence becomes a bit more conclusive than we think it currently
is as to whether certain species can feel pain.
Q9 Chairman: Are you the final arbiter
of the science? Is it ultimately you as the Minister, when the
submission comes up from the officials, who say, "Professor
X, Y or Z has produced another paper and has put compelling evidence
but we, Defra, do not agree with this. What do you think?"
The buck stops with you, does it?
Mr Bradshaw: Ultimately it stops
with Parliament.
Q10 Chairman: If Parliament does
not have the opportunity to take the decision, because you have
decided on the basis of the scientific evidence it is not worth
putting it to Parliament, Parliament cannot have that decision.
Mr Bradshaw: I make a decision
or recommendation based on the advice I am given which will take
into account disagreements and conflicts, if they exist, within
the scientific community as to whether a particular type of animal
can or cannot feel pain. I do not think I can do very much more
than that. If you are asking me whether I am qualified to make
a personal decision, no, I am not.
Q11 Chairman: I am intrigued to know
how this further appraisal of the evidence is going to be carried
out. Are you going to sit back as the Department and wait for
somebody to produce another scientific paper? Are you going to
positively try to recruit those opinions? Is it purely and simply
Defra's own scientists who determine whether a case has been made
out or not?
Mr Bradshaw: No, it is not. We,
Defra, over a whole range of policies will depend on and listen
to and take the advice of independent scientists. We have our
own Science Advisory Council which, if we feel there is a disagreement
or a dispute about the quality or basis of certain evidence, we
will ask for advice. There are a number of safety and review mechanisms,
if you like, to test the science which we use all the time, not
just on this but on a whole range of issues. Our Department is
one which is very dependent on science and evidence. If we were
to adopt the precautionary principle you are advocating, where
do you stop?
Q12 Chairman: I am asking it in the
context of the information which the Committee received, both
in its last inquiry and once again reiterated in this one. Just
for the record, when you decided the science on this occasion,
was the committee to which you referred consulted?
Mr Bourne: I think the answer
to that is no, it was not on this occasion.
Q13 Chairman: So you are telling
us that you have put in here a piece of law which takes these
species out on the basis of science, and then the Minister tells
us you receive advice from the Scientific Advisory Committee but
on something like this you have effectively been judge and jury?
Mr Bourne: We have consulted with
the Home Office, who have a very similar issue with their own
legislation. We are aware of an EU review which is coming up very
shortly to look at the ability of cephalopods and crustaceans
to have a conscious awareness of pain. But on this occasion, we
have not. We have read the science, we reviewed it and we did
not think there was a need to go out to further scientific analysis.
Q14 Chairman: I would put it to you,
Minister, on something like this where there was quite a considerable
amount of concern by those who follow these matters more closely
than I do, that in a way illustrates the point because it says
in the Bill that you are going to continue to use scientific evidence,
and the one opportunity you had to make a consultation on this,
you did not do it?
Mr Bradshaw: It is not one opportunity.
There are disputes about almost every element of policy which
Defra is responsible for. If we were to farm a fraction of those
out to the SAC to give an opinion on, they would never stop.
Q15 Chairman: I can appreciate that.
Mr Bradshaw: The implication of
your question is that our own in-house scientists and officials
have not fairly studied the balance of evidence in coming to the
recommendation they have.
Q16 Chairman: In fairness to those
who submitted evidence, not every species attracted a supporters'
club, not every species had somebody arguing for their inclusion
in this Bill. This particular species in this context, cephalopods
and crustaceans did have.
Mr Bradshaw: May I suggest that
is because they are right on the cusp, if you like, and it is
inevitable in my view that those organisations and others who
want to go further to promote animal welfare are going to pick
on the next species that they think should be included, rather
than one much further down the line.
Chairman: Despite the fact that other
jurisdictions in bringing a similar animal welfare legislation
to our own come to a different conclusion. It is on the record
as to what you did not consult with so we will move on.
Q17 Patrick Hall: Can I ask a question
arising out of your rapid visit and departure from Scotland earlier
on, where you referred, Chairman, to the parallel Bill but there
it is called the Animal Health and Welfare Bill or Act. Minister,
I believe you have made it clear on a number of occasions that
there is a clear distinction in Defra's view between animal welfare
and animal health. I have never been clear about that distinction
because if there is good welfare there is likely to be good health,
but the separation is made quite clear and quite repeatedly, and
I wonder if you could quickly clarify that matter for me.
Mr Bradshaw: I think you are right,
Mr Hall, there is a relationship and the other way round as well,
if there is good health there is likely to be good welfare. I
cannot speak for Scotland, I do not know why they have called
their Bill Health and Welfare but Caroline may be able to answer
that.
Ms Connell: I think what Scotland
are doing is including some of the provisions which were enacted
in the Animal Health Act 2002 which amends the Animal Health Act
1981, and putting that in the same piece of legislation as what
is, broadly speaking, a very similar Bill to our Animal Welfare
Bill and they are just putting the two in one. But they are two
very, very different sections, so the animal health side talks
about slaughter to prevent the spread of disease, testing and
so on.
Mr Bradshaw: Animal gatherings,
biosecurity codes, the field animal stuff which we have already
dealt with in England.
Q18 Sir Peter Soulsby: I would like
to follow up with another definition, this time the definition
of good practice. Clause 8(1), we have the very welcome duty to
ensure that the needs of an animal, for which persons are responsible,
are met to the extent required by good practice. Clearly there
are going to be different views as to what constitutes good practice
in particular circumstances. How confident are you that there
is a sufficiently established consensus about what does constitute
good practice across a whole range of activities that this is
likely to cover?
Mr Bradshaw: Where they do not
already exist, Chairman, we intend to draw up codes of conduct
which will outline in more specific detail what constitutes good
practice. They will be drawn up in collaboration with animal welfare
organisations, specialists, experts. I think they do already exist
for some species, if I am correct, but we intend to produce them
for all of the species over time.
Q19 Sir Peter Soulsby: The RSPCA
I think said in the absence of Bills or until they are available
there could be ". . . a complex and lengthy point to discuss
and prove in court."[4]
Those were the words they used. What sort of timescale do you
envisage for the establishment of these codes?
Mr Bourne: It will vary. On the
back of our Regulatory Impact Assessment we set out a rough timetable
because this was a matter of resources, we cannot produce them
all at the same time. It will take up to four or five years, we
said, to complete most of them and plainly there will never be
codes which cover absolutely everything, given the range of animals
there are.
Mr Bradshaw: It is inevitable
that the issues are going to have to be tested in court anyway.
2 Ev 53 Back
3
Environment, Food and Rural Affairs Committee, First Report of
Session 2004-05, The Draft Animal Welfare Bill, HC 52II,
Ev 164 Back
4
Ev 36 [Clause 8] Back
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