Examination of Witnesses (Questions 20
- 39)
TUESDAY 15 NOVEMBER 2005
MR BEN
BRADSHAW MP, MR
JOHN BOURNE
AND MS
CAROLINE CONNELL
Q20 Sir Peter Soulsby: It does sound
as if the RSPCA could be right, that there could be some lengthy
and difficult points in those court cases in the intervening period.
Mr Bradshaw: There are bound to
be arguments in court, whatever happens, as to what constitutes
the welfare needs of an animal being met or not.
Q21 David Taylor: I think there is
broad consensus that the Bill, clause 8 as it now is, is better
laid out than its equivalent was in the draft 2004 version of
the Bill. In restructuring and representing it, 8(3)(b) was added
which is the circumstances relevant to an offence can include—and
this is the addition—"... any lawful activity undertaken
in relation to the animal". What was the purpose of adding
that in?
Mr Bradshaw: Caroline is the person
to explain this because there has been some misunderstanding about
what this refers to. Caroline, do you want to clear that up?
Ms Connell: Yes. Clause 8(3)(a)
and (b) refer to the circumstances which it is relevant to have
regard to when applying the duty of care in subsection 1. Subsection
1 says that you have to take such steps as are reasonable to ensure
the needs of the animal are met to the extent required by good
practice. When you are looking at what is reasonable, what are
the reasonable steps that are required in any given situation,
you can have regard, amongst other things, to the lawful purpose
for which the animal is kept and the lawful activity undertaken.
That means, for example, that when you are looking at a caged
hamster, for example, that animal is kept as a pet, it is not
running around in burrows in the Syrian desert, similarly farmed
animals will be kept in certain situations which are not perhaps
the sort of situations that they might expect if they were wild.
Q22 David Taylor: Are you, therefore,
qualifying one or more of the five needs of the animal as spelt
out in subsection two then, in certain circumstances?
Ms Connell: Yes. The need to exhibit
normal behaviour patterns will in certain situations of necessity
be somewhat limited. You will have to take into account the lawful
purpose for which the animal is kept and look at that purpose
and see whether in the context of the purpose for which that animal
is lawfully being kept, for example farming, are you taking reasonable
steps to ensure their welfare needs are met.
Mr Bradshaw: "Have regard"
is not a get-out clause.
Ms Connell: No.
Q23 David Taylor: Some people have
suggested that it might be.
Mr Bradshaw: I know and that is
not the purpose. We are not saying that as long as something which
is currently lawful is lawful then you cannot be got by the welfare
offence.
Q24 David Taylor: So if the purpose
and activity are not unlawful, they are lawful?
Ms Connell: It is not a complete
defence. For example, if you are keeping an animal in a circus,
the fact that a circus is a lawful activity does not mean you
cannot fall foul of the welfare offence in relation to how you
keep that circus animal. You can keep it well in relation to that
activity or you can keep it badly in relation to that activity.
It is not a complete defence.
David Taylor: I think we are coming on
to circuses later on.
Q25 Chairman: Can I just establish
who will be the arbiter of determining the good practice in this
clause?
Mr Bradshaw: Experts in court.
Q26 Chairman: Experts in court?
Mr Bradshaw: Experts will give
evidence to courts who will decide.
Q27 Chairman: It is basically for
the keeper to make his or her mind up as to whether they are following
good practice but it will be the courts that determine what it
is going to be?
Mr Bradshaw: There will be codes
of conduct, Chairman, that we have outlined already. There are
the five freedoms that Mr Taylor has referred to already.
Q28 Chairman: Let us just stop at
the codes of conduct, who is going to draw those up?
Mr Bradshaw: Defra will draw them
up in collaboration with experts and animal welfare organisations.
Q29 Chairman: This is the bit that
you have taken powers to consult on?
Mr Bradshaw: Yes.
Q30 Chairman: We had a discussion
in our previous session on the fact that, for example, with birds
imported to the United Kingdom it is almost common practice that
a number arrive dead, for various reasons, as I understand it.[5]
In paragraph 26 of the Regulatory Impact Assessment, there is
reference to Standards and Keepers. Paragraph 26 says "Concern
has been expressed about the appropriateness of keeping certain
types of animal. Defra are currently consulting the public on
measures concerning primates . . . The measures are aimed at ensuring
the effectiveness of the CITES regulations. Although it is not
our intention to use the Bill to ban the keeping of animals on
welfare grounds, the standards required from keepers will be raised
through the introduction of a duty to ensure welfare and the codes
of practice." As paragraph 26 referred to animals which were
imported, if I bought a consignment of birds free on board, that
is I accepted the responsibility from the time at which the person,
wherever, delivered the birds to a piece of transport to bring
them back to the United Kingdom, I would assume responsibility
for the care of those animals. Under such circumstances, does
this Bill apply?
Mr Bradshaw: I would think so.
Do you have a view, Caroline?
Ms Connell: That is a very interesting
question.
Mr Bradshaw: Inside the country
or outside the country?
Q31 Chairman: That is an interesting
repost because the problem is—it might be a very interesting
point—after a long flight or other mode of transport, with
the aforementioned animals not being under constant surveillance,
if a number were to die en route, it might be that they died in
the United Kingdom air space or they might die somewhere else.
What I am saying is that a British national, a UK, in this case
an English or Welsh national, who would have had responsibility,
could receive, due to inadequate care and welfare on the route,
a consignment of animals for which they had responsibility which
were dead. Therefore, it raises the question in my mind as to
whether if those actions to look after the animals were inadequate
for the duration of the journey, this particular part of the Bill
applies?
Ms Connell: I think that you have
to make a distinction between contractual responsibility to look
after the animals and criminal responsibility under the provisions
of this Bill. I think that the latter would be decided by reference
to whether or not an offence has been committed in the jurisdiction.
I am not really equipped to say, at this moment, as to what stage
that will be reached with a consignment of birds flying in from
another country but it is certainly true to say that once the
birds arrived in Heathrow and were being cared for, and once they
arrived further on from there and were in the care of the purchaser,
then obviously the purchaser would have a duty to look after the
welfare of those birds.
Q32 Chairman: The answer is there
is a possibility, depending on the circumstances?
Ms Connell: If I buy a consignment
of birds and I am responsible for those birds then it seems to
me quite likely that the duty of care would fall upon me. It may
be that I might employ somebody else to look after those birds
and discharge my duty in that way and it may be that if they already
arrive suffering from some sort of illness that it is quite difficult
to say that I have committed an offence there, but it would depend
on the circumstances.
Mr Bradshaw: We are advised, Chairman,
that separate legislation applies to animals in transit under
CITES, the responsibility lies with the importer, the person who
is importing.
Q33 Chairman: I presume, though,
that not all species are covered by CITES?
Mr Bradshaw: That is correct.
Q34 Chairman: It is an interesting
area to contemplate.
Mr Bourne: Chairman, almost regardless
of precisely where the jurisdiction starts and ends, it is important
to remember that you are only asked under the welfare offence
to take all reasonable steps in the circumstances. Therefore,
if these birds are dying for a reason that has got nothing to
do with what you have done, and you have taken reasonable steps,
ie they have the necessary paperwork, et cetera, then I do not
see that any court is likely to find that you have failed to take
necessary steps.
Chairman: I think what triggered the
thought was, firstly, the area of application as to how far the
Bill reached but, secondly, as the Minister pointed out, it will
be courts that will ultimately determine what is going to be good
practice. Madeleine, did you want to come in on this?
Q35 Mrs Moon: I find it incredible
that we can be arguing that as long as we have filled in the paperwork
appropriately, if 100% of your consignment of birds arrive in
this country and are all dead that would not be an offence that
we could start looking at, when we are keen to look at the appropriate
good practice in terms of the health and welfare of animals.
Mr Bourne: Chairman, I think I
did say "et cetera", what I was trying to suggest
was that provided you have taken the necessary steps, that would
include best practice. I think the situation the Chairman was
discussing was when they have arrived and you have had very little
to do with them other than that you are the importer. Plainly
when they have been in quarantine et cetera, and you have
been looking after them, it is a different matter. I do have the
figures in front of me for the deaths on arrival—and this
is not in quarantine—for 2004-05, it depends slightly on
the type of bird, a maximum of 1.1% and a minimum of 0.26%.
Q36 Mrs Moon: Could I have those
again?
Mr Bourne: A maximum of 1.1% and
a minimum of 0.26 per cent.
Q37 Chairman: Out of how many?
Mr Bourne: That was a percentage.
Q38 Chairman: What was the population?
Mr Bourne: I am afraid I do not
have that.
Q39 Mr Williams: 600,000.
Mr Bradshaw: I need to get the
Chief Vet back to give you the figures. They are in the public
domain.
5 Environment, Food and Rural Affairs Committee, Minutes
of Evidence, Tuesday 15 November 2005, Avian Influenza,
HC 682-i Back
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