Memorandum submitted by the Animal Protection
Agency
RE: ANIMAL
WELFARE BILL
We are very grateful to the EFRA Committee for
the opportunity to give our further thoughts on the Animal Welfare
Bill and how it differs from the draft version. Our comments are
as follows:
1. During the EFRA Committee's consultation
on the Draft Bill, the Animal Protection Agency (APA) submissions
focused on the issue of pet markets. DEFRA's proposal was at that
time to resolve the "ambiguity" that it regarded as
being there with respect to the legality of pet markets by expressly
legalising these events and subjecting them to a licensing regime.
It appeared from the legislation that DEFRA would achieve this
by introducing a licensing regime for pet fairs under Draft Bill
Clause 6(2)(h) and then using the power under Clause 6(3)(f) to
repeal the entirety of the Pet Animals Act 1951, Section 2 (as
amended in 1983) of which makes it an offence to sell animals
as pets from a market stall or in a public place. The APA regarded
this as a highly retrograde step. The view that pet markets are
unlawful was (and is) shared by almost every experienced local
authority in the country (only two councils currently issue licences
for pet markets), no less than three barristers specialising in
animal welfare law, the Chartered Institute of Environmental Health,
four magistrates courts' findings, and the RSPCA's legal team.
It would be an ironic as well as a wholly undesirable development
if a Bill that was intended to improve animal welfare was to in
fact transpire to be a vehicle through which a ban that has been
in place since 1983 could be repealed.
2. The APA is therefore pleased that the
Bill, as now drafted, does not appear to empower DEFRA to repeal
Section 2 of the Pet Animals Act 1951 (because Clause 11(8) of
the Bill only allows for the repeal of Section 1(1) of the 1951
Act). While the continued provision of Section 2 of the Pet Animals
Act in the Bill is a welcome inclusion it is, however curious,
because the Regulatory Impact Assessment attached to the Bill
states that DEFRA maintains its intention to licence pet fairs.
Given the view of the vast majority of experienced local authorities
that pet fairs are prohibited by Section 2 of the 1951 Act, DEFRA
would effectively be seeking to licence events that a provision
of primary legislation states would involve the commission of
criminal offences. In other words, the current Bill will not resolve
the ambiguity that DEFRA claims existed and that it was seeking
to resolve. On the contrary, the Bill seems likely to exacerbate
the confusion that, for some, already exists.
3. The APA believes that the way forward
would be for a very short amendment to be tabled to the Bill.
This would insert a new subsection into Section 2 of the 1951
Act to ensure that any confusion about the legality of pet fairs
is resolved against allowing these events to take place. The APA
will be drafting such an amendment and seeking support for it
from MPs in the coming weeks.
4. The APA has previously supplied the Committee
with evidence (including video footage) of the appalling welfare
conditions inherent to these events and the way in which they
provide a conduit for the disposal of animals by dealers involved
in wildlife crime (eg the sale of illegally obtained species).
We will be sending further evidence to members of the Committee
within the next few weeks (not least because the membership of
the Committee has changed). Recent events connected to the threat
of avian flu have also highlighted the dangers to human and animal
health, to which the selling of animals as pets in market-type
situations gives rise, and has led to a temporary EU-wide ban
on pet markets (European Commission Decision 2005/745/EC).
5. We therefore urge the Committee to encourage
DEFRA to embrace and carry forward into the Animal Welfare Bill
the legal majority view of an existing prohibition on the carrying
on of businesses of selling animals as pets at temporary events
known as "pet fairs", "pet markets" and "pet
sale days". Such a prohibition would not affect the exhibiting
of animals at shows or meetings of hobbyists where no buying or
selling of animals take place and would bring current gatherings
of exotic animals and people in-line with other respectable functions
such as "Crufts" (canine events that are strictly non-commercial
meetings that pose no contentious threat to human or animal health
and welfare). We hope that, even at this late stage, DEFRA may
yet reconsider its refusal to support such an unequivocal "ban".
Further, we feel that in terms of clearly defining acceptable
and unacceptable "gatherings" of exotic animals, the
recent emergency provisions of the Animal Health Act 1981, in
response to the order from the European Commission, are most helpful.
Under these provisions, brought in to prevent the introduction
and dissemination of avian influenza, displays and exhibitions
of pet animals are considered to be "low" to "medium
risk", whereas events that involve the buying, selling or
exchange of animals are considered to be "high risk"
(Animal Health Act 1981, subsection Avian Influenza (Preventative
Measures) Regulations 2005.
6. Although the EFRA Committee highlighted
the bias and "significant deficiency" in the original
consultation by DEFRA on pet markets and recommended that DEFRA
"reappraise the basis on which its proposed regime for licensing
pet fairs is predicated", this was seemingly ignored. DEFRA
circulated a document, dated 23 June 2005, as a follow-up enquiry
to the original respondees on the issue of pet markets, that set
out DEFRA's understanding of both sides of the argument and respondees
were asked to confirm whether or not the points listed fairly
represented their views and to add to, or amend, the comments.
Even from this document it was clear that the arguments against
pet markets were detailed and authoritative, whereas the arguments
in favour of pet fairs were disjointed and weak. As the stated
purpose of DEFRA's request was merely to clarify the arguments,
it did not carry the weight of a consultation exercise and therefore
EFRA's recommendation has still not been complied with.
7. The proposal to legalise pet markets originated
within DEFRA itself and the Minister has recently acknowledged
to the APA that his Department has no support for this measure
other than that from animal dealers and vested interest groups.
Although DEFRA historically claimed that plans to "regulate"
pet markets had good support from animal welfare organisations
it has since been established that this finding came about as
a result of the misleading question that was posed in the original
consultation. The EFRA Select Committee criticised DEFRA for asking
whether pet fairs should be better regulated rather than asking
whether they should be clearly legalised. No animal welfare organisation
supports a proposal to bring back pet markets. We agree with the
EFRA Select Committee that DEFRA's question on pet fairs was inappropriate.
Further, we believe that the inherent bias in DEFRA's question
effectively deprived respondents to express a preference for the
prohibition of pet fairs. Had an open question been asked in the
first place then the matter would probably by now be closed. Further,
while DEFRA agreed to the EFRA Committees' and others' calls to
commence a fresh consultation that would ask "whether pet
fairs should be legalised" and thus avoid the previous biased
question and skewed and false result that DEFRA obtained, DEFRA
has instead again published its full intention to legalise pet
fairs without having first conducted the promised consultation.
8. The Minister has given assurances that
any further consultation on pet markets will ask "whether"
and not "how" pet fairs should be legalised. However,
paralleling this claim is the Minister's recent statement in response
to questions from animal dealers (at a meeting of the Associate
Parliamentary Group for Animal Welfare on 18 October 2005 at the
House of Commons) that they will indeed be able to hold pet markets
when the Bill becomes an Act. Thus, the Minister is showing contempt
for the consultation process and all responsible advice to carry
forward the existing ban on pet markets.
9. The matter of whether or not pet markets
can be lawfully licensed will be examined in the High Court early
next year. We are confident that the selling of pet animals in
public places and markets constitutes a criminal offence, whether
or not the event is licensed.
10. DEFRA has shown that, on the matter of
pet markets, it will even put vested interests before public health.
At a meeting of the Associate Parliamentary Group for Animal Welfare
on 18 October 2005 at the House of Commons, the Minister was asked
by the APA, whether in the light of the avian influenza risk associated
with the wild bird trade, DEFRA would immediately ban bird markets
and scrap any proposals to legalise them through the Animal Welfare
Bill. The Minister's reply was short and he stated only the word
"No!" Two days later, the Government was ordered
by the European Union to bring into effect an immediate ban on
bird markets.
11. Bird markets—or any events where
birds are traded as opposed to simply exhibited—are considered
to be "high risk" by DEFRA's Exotic Disease Prevention
& Control Division with regards to the risk of introducing
or transmitting the avian influenza virus. Yet, DEFRA's Animal
Welfare Division was warned over a year ago by the BioVeterinary
Group of the public and animal health risks associated with pet
markets, including avian influenza, but failed to take these warnings
seriously. In our view, DEFRA's lackadaisical approach to the
pet market proposal has failed comprehensively to take into account
the full implications relating to animal welfare and public health.
The legal basis on which DEFRA has based its decisions is also
highly questionable.
12. Directly linked to the issue of pet markets,
is that of quarantine. This was illustrated by the recent exposé
of Stafford bird market, that took place on 9 October 2005, where
birds from an infected quarantine facility appear to have been
sold (Daily Mirror 7/11/05). Incidentally, this event was held
in an agricultural showground and so cross-contamination to poultry
cannot be ruled out.
13. The intervention of the European Union
and of Animal Health Division of DEFRA regarding the imposition
of the recent temporary ban on pet markets is a clear demonstration
that DEFRA's intention to legalise pet markets is unsustainable.
This is especially true given that the harmful implications of
pet markets go well beyond animal welfare to include animal and
human health and safety issues. Thus any decision by DEFRA to
legalise these events would sit in isolation of any responsible
decision making process.
14. Lifting the current ban on pet markets
would bring about an upsurge in the exotic pet trade—both
legal and illegal—and all its associated problems and as
well as this it would create an unnecessary animal and public
health risk. Leading experts in exotic animal welfare and biology
maintain that it is impossible for standards of husbandry at markets
to meet even current minimal pet shop standards. Legalising these
events would lead to more cases of cruelty and neglect and more
exotic animals—purchased on impulse and no longer wanted—being
dumped at rescue centres, most of which have neither the facilities
nor the expertise to care for them. The view of APA is that sufficient
monitoring and enforcement of the laws relating to the sale of
pet animals at markets would place an unmanageable burden on local
authorities, the police and HM Customs & Excise.
15. We note that the Bill no longer outlaws
the giving of animals as prizes. This, in our view, undermines
the Bill and the concept of a "duty of care" as it encourages
people to acquire animals on impulse. We hope that the ban on
giving animals as prizes is reinstated at some stage in the Parliamentary
process.
16. The view of the APA is that the Minister
has already brought himself, his Department and Government into
disrepute through his intransigence on the issue of pet markets
and by bringing in any measure to legalise these events, he stands
to place the nation's animal and human population at increased
risk of epidemics.
November 2005
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