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Standing Committee A
The Committee consisted of the following Members:
Chairmen:
†Mr. Roger Gale, Mrs. Joan Humble
†Baker, Norman (Lewes) (LD)
†Bradshaw, Mr. Ben (Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs)
†Cunningham, Tony (Workington) (Lab)
†Drew, Mr. David (Stroud) (Lab/Co-op)
†Greening, Justine (Putney) (Con)
†Griffith, Nia (Llanelli) (Lab)
†Hollobone, Mr. Philip (Kettering) (Con)
†Keeley, Barbara (Worsley) (Lab)
†Kidney, Mr. David (Stafford) (Lab)
†McIsaac, Shona (Cleethorpes) (Lab)
†Mulholland, Greg (Leeds, North-West) (LD)
Paice, Mr. James (South-East Cambridgeshire) (Con)
†Rosindell, Andrew (Romford) (Con)
†Smith, Ms Angela C. (Sheffield, Hillsborough) (Lab)
†Snelgrove, Anne (South Swindon) (Lab)
†Tipping, Paddy (Sherwood) (Lab)
†Wiggin, Bill (Leominster) (Con)
Geoffrey Farrar, Jenny McCullough, Committee Clerks
† attended the Committee
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Thursday 19 January 2006
(Afternoon)
[Mr. Roger Gale in the Chair]
1 pm
The Chairman: Before we proceed, I should say that I have been well briefed on what happened this morning. There have been debates on a copious number of amendments, and clause 7 is very short, so I do not expect a lengthy or repetitive stand part debate.
Clause 7
Fighting etc
Question proposed, That the clause stand part of the Bill.
Bill Wiggin (Leominster) (Con): Thank you, Mr. Gale, and welcome back to the Chair. We had an interesting and important debate, as you say, and I shall keep my comments short. We need to decide carefully whether the clause stands part of the Bill not because of what is in it, but because of what is not. I hope that during the break the Minister had a chance to think carefully about the feelings in the Committee on what recorded information is legitimate.
We understand the difficulties of drafting such a clause, and we know that the Government already propose to introduce controls on certain types of obscene materials in other legislation. I hope that the Committee has been something of a pathfinder in identifying what is obscene to us in animal welfare terms rather than in a pornographic or sexual manner. We face that problem specifically with dog fighting. I hope that the Minister will tell us that he has reconsidered his position and has positive comments to make. He controls all the tools necessary to draft something that would go some way towards alleviating the Committee’s fears.
The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Mr. Ben Bradshaw): I do not intend to dwell on the less contentious aspects of the clause, but I shall say a few words about the part that was the subject of most of the debate this morning: the recording of fighting. I listened carefully to what was said in the Committee, and I hope that Members accept that the making of a recording is covered by the provisions on participation in, or presence at, a fight. However, I will reflect, in discussion with others, on whether it would be possible to make changes that would reassure hon. Members that even the private distribution of recordings was covered, bearing in mind the difficulty of proving whether the activity recorded took place in this country.
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On the possession of a recording, I outlined to the Committee some of the difficulties of criminalising the mere possession of an image, given that the possession of far more serious images is currently not criminalised. I will reconsider whether it would be possible to tie that possession to an event that had taken place in this country. The difficulty of proving that was why this provision was dropped from the draft Bill.
Bill Wiggin: I am grateful to the Minister for what he has said. He has gone a long way towards alleviating our fears. He is becoming a bit of a master at changing direction in the Committee, which we welcome. I said on Second Reading that I hoped he would not become entrenched. He has not, and we are grateful for the progress that he has made.
Norman Baker (Lewes) (LD): I want to re-emphasise that point. I am pleased that the Minister has reflected over lunch—or been beaten up by his colleagues, I am not quite sure which. Either way, I am pleased that he has decided to reflect on the issue. There was, and is, genuine concern among all three parties and all members of the Committee about the potential loophole, which we want to see closed. We are happy for the Minister to reflect on that point and come back with something in his own time. If the Bill proceeds without some measure to prevent the recording of dog fights for distribution or private consumption, we will not be happy. It is therefore important that the loophole be closed.
Greg Mulholland (Leeds, North-West) (LD): I intervene to echo the comments about the Minister being prepared to reconsider the issue. We need to ensure that the clause relates not only to animal fighting but to any act of cruelty. I am keen to see whether that will be taken forward as part of the debate.
Norman Baker: I understand that point, and doubtless the Minister will reflect on it, too. I welcome his statement; it would be churlish to do otherwise, because we want to see movement from him. How long does he think he will need to reflect on the matter? Will he have reflected sufficiently by Report, or will he still be reflecting during the Committee stage in the House of Lords?
Mr. Bradshaw: We shall endeavour to reflect by Report. One point I made during my remarks this morning is that sometimes the reason the Government cannot formulate a particular provision is the difficulty or impossibility of formulating it in an enforceable and practical way. I did not hear any practical suggestions this morning, and that is why we need to undertake discussions with some organisations that might have an idea of what is practical and enforceable. If we can do that, we intend to do so before Report.
Shona McIsaac (Cleethorpes) (Lab): I welcome you, Mr. Gale, to the Committee’s afternoon sitting.
I deprecate all forms of cruelty, including any cruelty to my hon. Friend the Minister. I should like to reassure him of that. His statement reassures us that he
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takes seriously what we say, and I welcome his assurance in this stand part debate that he will consider what can be done. The Committee is particularly concerned about dog fighting, and if he can liaise with his Home Office colleagues about what are known as squish videos, that may be useful, too.
The Chairman: Before we proceed, may I make a request to all hon. Members? If they wish to speak, will they please make every effort to stand? This room is particularly difficult to chair, because the sight lines from the Chair are appalling. One Front-Bench spokesman on his or her feet can effectively obliterate the entire Committee. It also helps the Chair if you indicate in advance that you want to speak. As a matter of interest, if you can catch my eye, or that of Mrs. Humble, while somebody else is speaking, it gives us a clue. We are blessed with many talents, but second sight is not one of them.
Clause 8
Duty of person responsible for animal to ensure welfare
Bill Wiggin: I beg to move amendment No. 88, in clause 8, page 4, line 17, leave out ‘in all the circumstances’.
The Chairman: With this it will be convenient to discuss amendment No. 128, in clause 8, page 4, line 19, leave out
‘the extent required by good practice’
and insert ‘an appropriate extent’.
Bill Wiggin: The thought of obliterating the Committee is far from attractive.
Amendment No. 88 is a probing amendment that seeks to clarify what might be considered an unnecessary phrase in legislation. “In all the circumstances” is not necessary, because it is already covered by the previous phrase about reasonable steps. Moreover, the term might provide a suspected offender with a legal loophole that could be exploited in court, and we should not want that to happen.
For instance, if a person purchases an animal such as a baby boa constrictor, they will need to provide it with a suitable environment, as detailed in subsection (2). When they purchase the boa constrictor, it may be quite small, and its welfare needs easy to provide for. However, when the snake grows bigger, the owners may not be able to provide fully for the snake’s welfare needs. If those circumstances were considered in a court of law, someone who had possibly committed a welfare offence might be found not guilty on that basis. Ignorance is not a suitable defence, and I hope that the Minister will clarify the matter.
I have been advised on amendment No. 128 by the RSPCA, and on this occasion I share its concerns that the term “good practice” would be ineffective until defined in future secondary legislation. The Bill makes no reference to what constitutes good practice, and that might pose a problem in a court of law. To interpret laws, courts must have clear directions, and while we wait for good practice codes and regulations
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to be enacted, there might be inconsistencies in interpreting the law. What constitutes good practice could be interpreted differently by different courts. The amendment would give the courts discretion to examine the circumstances of each case, rather than feeling bound by the undefined term “good practice”.
Ms Angela C. Smith (Sheffield, Hillsborough) (Lab): I fail to understand why “an appropriate extent” is any less subjective than “good practice”. Once good practice is determined, it offers an objective measure for the courts to use. Surely, “an appropriate extent” offers too many get-out clauses in the courts.
Bill Wiggin: Although the hon. Lady is always welcome to intervene, had she paused for a moment I would have finished my closing comments as follows: the expression “an appropriate extent” would transcend any future code that might seek to define “good practice” because it is more flexible and adaptable to different circumstances. I hope that that answers the hon. Lady’s question and that the Committee will accept the amendment.
Shona McIsaac: Although the hon. Gentleman said that these are probing amendments, they have merit.
Amendment No. 88 would delete “in all the circumstances” which would make it easier to apply the provision in the courts. It is as simple as that and the amendment certainly has merit.
Amendment No. 128 is also important because the term “good practice” is essentially subjective and its inclusion could cause evidential debate about the meaning and could lengthen unnecessarily any court case. A better term to use might be “an appropriate manner”. Will the Minister reflect on that and discuss with his officials whether the wording could be improved so that it is easier for the courts to show that a welfare offence has taken place?
Mr. Philip Hollobone (Kettering) (Con): I agree that the words “good practice” at the end of subsection (1) are subjective. The term may be clear and of use to people in certain industries—for example, farmers, pet shop owners and so on—but its meaning will not necessarily be apparent and consistent to the average person on the street. The combination of “lawful purpose” and “lawful activity” in subsection (3) implies that an industry that uses animals sets the standard and could argue that as their activities are lawful and not illegal a lower standard of welfare is acceptable for the animals kept for that purpose. That would negate DEFRA’s previous statements that the introduction of the welfare offence will successfully deal with those animals whose welfare needs are unlikely to be met when they are used commercially.
Mr. Bradshaw: With reference to the hon. Gentleman’s comments, these concerns about circumstances were also raised yesterday on another clause and I assured the Committee that they were not a get-out clause. The point in this clause is that the Government believe that it would be unreasonable and disproportionate to have an absolute welfare standard that does not take account of the circumstances in
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which an animal is kept. The Bill is based on the central premise that it is appropriate for people to keep animals for a variety of purposes, but that minimum standards should be set for the behaviour of people towards those animals. There is a balance to be struck between the interests of animals and humans, and different circumstances will apply in different situations. In clause 8, the word “circumstances” is important to that approach; I shall give an example.
A pet hamster in a cage may not have the same opportunities to express its normal behaviour as one that is running around in the desert, its natural habitat. If the welfare offence were applied as an absolute test without regard to the animal’s circumstances, there would be a risk that just keeping a hamster in a cage would breach the welfare offence. We believe that it is right that the Bill allows for welfare to be assessed in the context of the purpose for which the animal is kept and the activity undertaken in relation to it, but not as a get-out clause.
1.15 pm
Shona McIsaac: I thank my hon. Friend for his example relating to hamsters. The first line of clause 8 states:
“A person commits an offence if he does not take such steps as are reasonable”.
Nobody would suggest that it was reasonable to recreate a desert environment in a child’s bedroom, for example, to offer a hamster its natural habitat, so surely the issue is covered in the clause.
Mr. Bradshaw: I still think it important to add to “reasonable” the fact that there may be different circumstances. I do not believe that the qualification will lead to some animals being kept in unacceptable conditions. To refer to the example cited by the hon. Member for Leominster (Bill Wiggin), if a boa constrictor outgrew its environment, it is likely that a court would consider that the fact that it had once been small was not a defence. Subsection (2) makes it clear that
“its need for a suitable environment”
should be taken into consideration by the court. I am about to come to good practice, and good practice for a snake would include reasonable space.
Amendment No. 128 deals with good practice. It may help hon. Members if I explain why we changed—
Justine Greening (Putney) (Con): Will the Minister give way?
Mr. Bradshaw: Is the hon. Lady’s intervention on this point?
Justine Greening: It is on good practice.
Mr. Bradshaw: Very well.
Justine Greening: There is a difference between good practice and appropriateness. One implies a potentially separate body establishing what good practice is; the other implies some responsibility on the part of the individual to assess for themselves what is
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appropriate. That is one of my concerns about the use of the term “good practice”. It should be partly down to the individual to assess appropriateness, because only they can really judge the circumstances in which they are taking care of an animal’s welfare.
Mr. Bradshaw: The hon. Lady makes my point for me by acknowledging that the term “appropriate” is far more subjective. I do not want the Bill to allow individuals to make judgments for themselves about the appropriate way of looking after an animal. That is exactly why we changed the wording. The Environment, Food and Rural Affairs Committee, during its pre-legislative scrutiny of the Bill, agreed that, as “welfare” is a neutral term, the Bill should clarify that it is necessary to ensure good welfare. We accepted that recommendation and the Bill was redrafted; otherwise there could have been uncertainty as to the intention. That is why we included the provision about doing all that is reasonable to meet the needs of an animal and meeting its needs to the extent required by good practice.
I agree with the hon. Lady—this is where I disagree with my hon. Friend the Member for Cleethorpes (Shona McIsaac)—that the term “appropriate” is far more vague, subjective and ill defined than “good practice”. I hope that, by providing the example of the cat code, I have given members of the Committee some idea of how the codes of good practice will help to inform the decisions of the courts and help with recognition of what is good practice. That is preferable to the term “an appropriate extent”, which is highly subjective, as the hon. Member for Putney (Justine Greening) acknowledged.
Shona McIsaac: My hon. Friend kindly provided the draft cat code, which I have read and which includes information on not creating a fat cat by feeding it too much. My concern relates to the timing. If the codes of practice are not available when the Bill is enacted, case law may define good practice, and the codes may say something else. I hope that the Minister takes that point.
Mr. Bradshaw: I hope that the Bill passes swiftly through the House and on to the statute book, but I acknowledge that, unfortunately, it will not be possible to draw up by then a code of practice for every species of animal that might be kept by human beings. That does not detract from my point. Even in the absence of a completed code of practice, it would be easier for courts, welfare experts or scientists to argue what is “good practice” than what is “appropriate”, which is a far vaguer and—as the hon. Member for Putney acknowledged—more subjective term.
Amendment No. 128 would go against the recommendation of the EFRA Committee to refine the use of the neutral term “welfare”. It would leave the courts and individuals with less clear guidance as to what good welfare would be in each particular case. On that basis, I urge the hon. Member for Leominster to withdraw the amendment.
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Bill Wiggin: I want to press the Minister slightly before I make a decision on the amendment. I tried my best to follow closely what he said, and in the case of my snake, unless the Minister actually states the length of snake per length of tank in the code of practice, it will be difficult to make the code absolute and proper. We therefore want the term “appropriate extent” rather than the more general terms in the Bill. I understand where the Minister is coming from, and we want to avoid being totally prescriptive, but this part of the Bill allows the Government to be even more prescriptive, and I have some concerns about it. However, I recognise that he will do his best with the codes.
I believe that the relevant code states that a cat should be neither too fat nor too thin. That worries me slightly because that is what I would like to be, although whether I am depends on whom I invite to give their opinion—my wife is rather critical. We need the Minister to assure us that we are going to provide for the best possible standards. If he just nods, I will be happy.
Mr. Bradshaw indicated assent.
Bill Wiggin: I thank the Minister and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Shona McIsaac: I beg to move amendment No. 204, in clause 8, page 4, line 20, after ‘needs’, insert
‘, regardless of the circumstances in which it is found.’.
The Chairman: With this it will be convenient to discuss the following amendments: No. 90, in clause 8, page 4, line 21, leave out ‘a suitable environment’ and insert
‘an adequate and comfortable living space’.
No. 192, in clause 8, page 4, line 26, leave out subsection (3).
No. 129, in clause 8, page 4, line 28, leave out paragraphs (a) and (b) and insert
‘, an animal’s environment and circumstances.’.
Shona McIsaac: The amendment is essential because the needs of an animal are the same, irrespective of the circumstances in which it is kept. The clause sets out five points that should be taken into account in all circumstances: the need for “a suitable environment” and “a suitable diet”, the ability to “exhibit normal behaviour” and the need “to be housed” and the need
“to be protected from pain, suffering, injury and disease.”
If we do not include the words “regardless of the circumstances”, the Bill might create a loophole for people who use practices that would otherwise be captured; it would create a lower welfare standard.
We must say from the outset that the standards in the clause are applicable to all the protected animals, regardless of the circumstances in which they are kept. I acknowledge that we might have to be careful as regards, say, police horses and the training of police dogs, but if we are not explicit, a loophole might be
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created. I fear that that will be exploited by those who knowingly use cruel practices, particularly in training their animals.
Bill Wiggin: I suspect that we are going to receive a similar answer on these amendments. Amendment No. 90 will serve to clarify the ambiguity that the current wording presents. The term “suitable environment” is problematic because the Bill does not specify what constitutes a suitable environment. Although I understand that clause 10 makes provision for establishing regulations, we need to know what, in the Bill, the term is intended to mean. The dictionary defines an environment as
“the objects or the region surrounding anything”
and
“the conditions under which any person or thing lives or is developed; the sum-total of influences which modify and determine the development of life or character”.
That is quite ambiguous, too, and could present the judiciary with a problem in interpreting the law. We would all like to ensure that animals have comfortable surroundings. However, the only suitable environment for some animals would be their natural habitat. The Minister talked about hamsters.
Norman Baker: I sympathise with the direction in which the hon. Gentleman wishes to travel, but I am concerned that his definition is narrower than the Government’s wording. The term “suitable environment” would cover temperature, for example. I am not convinced that
“adequate and comfortable living space”
would deal with that issue. It is to do with the physical environment. The term used in the Bill seems more satisfactory.
Bill Wiggin: The hon. Gentleman has a valid point. I suspect that the Minister will tell us that this matter will be taken care of in the codes of practice—I would not be at all surprised if that was the case. With that in mind, I had a look at the draft cat code, which states:
“Your cat must have fresh water available at all times.”
The phrase “at all times” is pretty clear. Of course, if a cat is being taken to the vet in a basket, or even in the back of an RSPCA van, it cannot necessarily have water available at all times. When drafting the codes, it will be extremely difficult to ensure that they are as comprehensive as possible.
Amendment No. 129 would ensure that this important clause would be interpreted more widely than the present wording permits. In the present version, the circumstances to which it is relevant to have regard when applying subsection (1) are “lawful purposes” and “lawful activities”. The amendment widens that to include the animal’s environment and circumstances. If we take a single snapshot of how any animal is treated, we could find cause for complaint in our activities. One could argue that if someone places a cat in a box to take it to the vet, an offence is taking place while that cat is in the box. Nevertheless, the broader picture tells us that no offence is taking place and this amendment would make that explicit.
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Mr. David Drew (Stroud) (Lab/Co-op): I want specifically to speak to amendment No. 192, which is in my name. I tend to take the view, expressed by my hon. Friend the Member for Cleethorpes and the hon. Member for Leominster, that we wish to clarify the terms by ensuring that they are as comprehensive as possible, rather than by narrowing them. I am afraid that we will seemingly be rehearsing positions for much of the rest of the proceedings.
This issue relates back to the draft Bill, which featured different wording. Subsection (3), which I wish to remove, has been added since the draft Bill was considered. The point is important because it relates to the basis on which somebody’s defence will be built if they are accused of cruelty towards an animal. The amendment is partly about consistency in animal protection standards. As far as the RSPCA is concerned—I am not paraphrasing the RSPCA completely accurately, but I think that this is a fair thing to say—it could drive a coach and horses through the Bill if someone argued that the reason they were keeping an animal was different from the norm. They might be keeping an animal to train it or for purely commercial reasons.
According to subsection (3), that at least gives them the excuse to treat that animal in a different way. Will the Minister explain why there has been a redefinition? Something has been included that was not in the draft Bill. Is the provision not somewhat dangerous, in that it gives people an opportunity to find an excuse for different gradations of how an animal should be treated? Effectively, we are talking about a second-class state of protection for certain animals.
1.30 pm
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