Animal Welfare Bill

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Mr. Bradshaw: The case that the hon. Gentleman has outlined, involving someone who for whatever reason has a house full of animals that are suffering, would clearly require, under the Bill, the attendance of a vet to certify the putting down of the animals. Perhaps one could imagine, although it might be difficult, a case in which neglect meant it was not
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possible to wait 10 or 20 minutes for a vet to arrive. The case that I should consider relevant, and which Committee members have also considered relevant, is the one in which an animal has been hit by a car and is suffering badly in the middle of the countryside somewhere. It might not be possible for a vet to arrive for an hour or so. It is not in the spirit of the Bill, and nor should it be in the letter of the law, to insist that that animal should suffer terribly for another hour.

Bill Wiggin: I am grateful to the Minister. I think that if the owner of the animal is present and says, “Don’t destroy my animal. Don’t kill this animal; please get a vet first,” it is clear that the inspector should proceed with a vet, but if that does not happen and the animal is obviously suffering, those concerned should proceed in the way set out in the Bill. Now that I have put that clearly, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

11.30 am

Amendment proposed: No. 135, in clause 16, page 9, line 2, at end insert—

    ‘(   )   The power conferred by subsection (5) includes power to take into possession dependent offspring of an animal taken into possession under that subsection.’. —Mr. Bradshaw.]

The Chairman: With this it will be convenient to discuss the following: Government amendment No. 136.

Amendment No. 61, in clause 29, page 14, line 19, after ‘offspring’, insert

    ‘or any offspring it is carrying in utero’.

Bill Wiggin: I think that amendment No. 135 is where the Government include baby animals, which is a tremendous improvement and something we asked for earlier in the Bill’s consideration. In fact, I took an intervention from my hon. Friend the Member for North Wiltshire (Mr. Gray), or someone did, in that debate. We welcome the amendment, ensuring that baby or dependent animals are also taken into consideration. That is positive. I am grateful to the Government for being so flexible and for listening.

Amendment agreed to.

Bill Wiggin: I beg to move amendment No. 174, in clause 16, page 9, line 12, at end insert—

    ‘(8A)   For the purposes of subsection (7)(c), the appropriate national authority may by regulations make provision for the method by which an animal may be marked for identification purposes.’.

The amendment is about when an animal is in distress and, for the purposes of practicality, it may be necessary to identify it at a later date. Marking would therefore be a sensible course of action to take.

With regard to the clipping of cats’ ears, I understand that if someone owned a number of cats and a small number of them appeared to be mistreated, marking them for the purpose of identification may be necessary. If the mistreated cats were marked, locating them in the future would be easier. The amendment enables the Government to make appropriate
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regulations for that to happen. The amendment is not particularly complicated so I hope that the Government will accept it.

Mr. Drew: I am intrigued to know who has the right to mark an animal, which may be done for justifiable reasons. With that in mind, what level of marking are we talking about? Are we talking about microchipping or branding an animal? Are we talking about marking by cutting the ear of an animal? What is the purpose of marking and who is able to do it? In a sense, marking indicates a change of ownership, and there may be reasons why that change is necessary. I want clarification from my hon. Friend the Minister why, how and who can do this.

Mr. Bradshaw: The amendment would allow the appropriate national authority to make regulations specifying how an animal may be marked if it has been taken into possession because it was suffering or likely to suffer. The Government believe that the amendment is not necessary. It would be too burdensome at this stage to lay down detailed provisions about the best way to mark animals taken into possession.

Marking an animal taken into possession will not always be necessary. For example, a single dog or cat might identified adequately simply by their wearing a collar. That would not constitute marking for the purposes of clause 16(7)(c). If cattle were taken into possession, they should already be wearing ear tags and, therefore, would already be marked. However, if, for example, a herd of pigs were taken into possession, there might be a need to mark each animal.

In a majority of such cases, the constable or inspector would be able to draw on his or her experience and knowledge of the best way to mark an animal. If necessary, there are already suitable sources of information and advice available, such as the state veterinary service or the RSPCA. However, if experience after the Bill comes into force shows that further guidance is necessary, I am confident that power to issue such guidance is already given by the Bill. For example, clause 12 allows for the appropriate national authority to issue a code of practice

    “for the purpose of providing practical guidance in respect of any provision made by or under this Act.”

Further, clause 10 allows the appropriate national authority to make

    “regulations . . . for the purpose of promoting the welfare of animals for which a person is responsible”.

Therefore, the Bill already allows for regulations of a type that this amendment envisages.

I hope the hon. Members will also have been reassured by the debates that we had on clause 5. Although not all methods of marking an animal would constitute a mutilation, those that are mutilations and that are unacceptable will be prohibited by clause 5. On the basis of that, I urge the hon. Member for Leominster to withdraw the amendment.

Bill Wiggin: That is a great deal clearer, and I am grateful to the Minister. As I have no reason to press it, I beg to seek leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Bill Wiggin: I beg to move amendment No. 68, in clause 16, page 9, line 15, at end insert—

    ‘(9A)   A person acting under subsections (1) and (3) to (9) must, if appropriate, take all reasonable steps to notify the owner of, or person responsible for, any animal of their actions.’.

The Chairman: With this it will be convenient to discuss the following amendments: No. 69, in clause 16, page 9, line 18, after ‘incurs’, insert ‘reasonable’.

No. 71, in clause 18, page 10, line 16, leave out

    ‘it is not reasonably practicable’

and insert

    ‘reasonable endeavours have been made’.

No. 53, in clause 18, page 10, line 25, after ‘reimburse’, insert ‘reasonable’.

Bill Wiggin: Amendment No. 68 would ensure that efforts are made to inform an animal’s owner if any powers under the clause are being used. At present, the clause does not distinguish between animals that are in distress because of the actions of their owner and animals that are in distress accidentally. A person who is responsible for causing an animal distress must be dealt with accordingly and the animal must be treated. However, if an animal has found itself suffering through an accident—for instance, a cat getting caught on a fence or being run over—it is only right and proper that the owner is contacted if possible and has a say in the pet’s treatment. If an owner has not committed an offence, they should determine the treatment that their pet receives, especially if it involves putting the animal down. The amendment would therefore safeguard the responsible owner’s right to make responsible decisions about the care of their animals.

Amendment No. 69 would ensure that excessive financial charges are not placed on someone whose animal has been treated or destroyed when no offence has taken place. The clause enables inspectors and constables to take measures to alleviate an animal’s suffering if it is found to be in distress and financially to charge the owner accordingly, regardless of whether an offence has taken place. When an offence has taken place, the offender must be expected to pay. However, it is possible that an owner may not be aware that their animal is in distress.

For instance, if an owner lets their cat roam, they cannot be expected to supervise it at all times. Nevertheless, through its own misadventure, that cat could sustain an injury and require treatment. In those circumstances, when the owner is innocent of any offence, under subsection (11) he could still be made to feel like a criminal. Therefore, the amendment would safeguard an owner’s interests by ensuring that over-zealous inspectors will not receive undue awards when there is no award to claim.

Amendment No. 71 would place a duty on the courts to ensure that an animal owner’s rights are not infringed. Under clause 18, an owner who acts responsibly towards their animal may still have it taken away from their care without their knowing—for instance, if they are away from home and another person who is supposed to be responsible for the animal has not been responsible. It is right that, in
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these and similar circumstances, the animal’s well-being is given priority. Nevertheless, those who have taken over the animal’s care should still take positive steps to find the animal’s owner. I am concerned that the words that

    “it is not reasonably practicable”

contains an inherent negativity whereby efforts to contact the owner may not even be made. However, the amendment would ensure that at least efforts are made to contact the owner and include them in a decision about the animal’s future.

As with amendment No. 69, amendment No. 53 is designed to ensure that excessive financial charges are not laid against someone whose animal has been treated or destroyed under clause 18, especially when that person is not guilty of an offence. The Bill rightly gives inspectors and constables the power to take appropriate measures to alleviate an animal’s suffering, and it is appropriate that those costs are recoverable. Nevertheless, some people have expressed concern that there may be occasions when over-zealous officers or persons give that animal expensive treatment, which the owner, who has not committed an offence, may not be able to afford to pay. Furthermore, the cost of such treatment may be more than is necessary. The amendment would ensure that the costs are reasonable and proportionate to the treatment and it would prevent excessive charging. I can think of an example where a cat is very old. To take it through an advanced operation may be the most inappropriate treatment, but if one has not spoken to the owner, one would not necessarily know that. That is what we seek to safeguard.

Mr. Bradshaw: If the hon. Gentleman is agreeable, I would like to give the issue raised in amendment No. 68 further consideration. We are not wholly convinced that the amendment as drafted would work, but if he would agree to withdraw it, I will contact him before Report with a considered view of the Government’s position.

I turn to amendments Nos. 69 and 53 that aim at ensuring that the court will order only the reimbursement of reasonable expenses incurred while a person carries out its orders. That point was addressed in the Government response to the EFRA Select Committee, so I shall deal with it briefly. A court is a public body and, as such, is obliged to act reasonably. We believe there is no need to include a provision in the Bill to stress that again.

On amendment No. 71, regarding the clarification that must be met before a court can order disposal of an animal under clause 18 without hearing from the owner, the proposal is a matter of drafting preference. The essential point of clause 18(3) is that, unless there is good reason to do otherwise, an animal’s owner must be heard before its fate is determined. The current drafting uses a “reasonably practicable” test that is well established in law and, we believe, more than adequate to meet the needs of the situation in question. If it is not “reasonably practicable” to communicate with the owner, there is little point in obliging a prosecutor to endeavour to do so. The amendment, by requiring the applicant to show that he
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had indeed made reasonable endeavours to contact the owner, may result in unreasonable expense and delay during such endeavours. We are not convinced of the need to employ a different test in that case. On that basis—and bearing in mind what I said about amendment No. 68—I urge the hon. Gentleman to withdraw his amendment.

Bill Wiggin: We have already seen the Government bring forward amendments that were perhaps better drafted than my amendment No. 61. I take seriously the point made by the Minister about amendment No. 68, and am more than happy to withdraw it. As a Committee, we have been working together positively for the benefit of animal welfare.

I also take on board the important points that the Minister made about reasonableness. When a judge is about to award a huge amount of money—perhaps erroneously given that the owner has committed no offence—he will look back on the Minister’s words and recognise that he must be reasonable. There was concern about how clerks to the magistrates courts would interpret, say, the size of fines and other parts of the Bill. They will now know that the Minister expects them to be reasonable, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 16, as amended, ordered to stand part of the Bill.

Clause 17

Power of entry for section 16 purposes

Anne Snelgrove (South Swindon) (Lab): I beg to move amendment No. 153, in clause 17, page 9, line 28, after ‘entry’, insert ‘without warrant’.

The Chairman: With this it will be convenient to discuss the following amendments: No. 154, in clause 17, page 9, line 29, at end insert

    ‘unless the inspector or constable reasonably believes that the animal is in serious and immediate danger from which it should be removed before a warrant under subsection (4) can be obtained and executed.’.

No. 155, in clause 19, page 11, line 1, after ‘entry’, insert ‘without a warrant’.

No. 156, in clause 24, page 12, line 30, after ‘entry’, insert ‘without a warrant’.

Anne Snelgrove: Clause 17 is an important one, and mine are probing amendments. The clause gives power to an inspector or constable to enter premises to deal with an animal if it is believed to be suffering, or likely to suffer if remedial action is not taken. Subsection (2) provides that the power of entry does not extend to private dwellings, or any part of a building that is a private dwelling. However, the clause goes on to deal with those premises that are not private dwellings, saying that inspectors or constables can obtain warrants to enter premises unless there is an expectation that waiting for a warrant may prolong an animal’s suffering or that immediate entry could mean that suffering would be prevented.

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As I said earlier, however, subsection (2) removes private dwellings from that and I seek some clarification from the Minister. My amendments seek to include private dwellings within the clause and to put them on the same footing as public or office premises, for example. Amendment No. 154 says that one cannot enter a private dwelling without a warrant

    “unless the inspector or constable reasonably believes that the animal is in serious and immediate danger”.

I hope that the Minister will note that. The corresponding amendments to clauses 19 and 24 would tidy up the provision and make reference to warrants.

11.45 am

Norman Baker: It might help if the Minister were to dwell for a second on subsection (2) and spell out what he means by “private dwelling”. I take it to be the entire curtilage of a premises, but a distinction might usefully be drawn between that which is indoors, which is private in a more definitive way than that which is outside, which may still be legally private. What happens if an animal is seen in that part of a private property that is visible; for instance, in the yard or a field? What is the legal situation in that respect ?

Bill Wiggin: With your permission, Mr. Gale, I wish to comment on amendment No. 70, which is relevant to this debate. I was going to raise a point of order and ask whether you would consider allowing that, but I may wish to press the amendment to a Division. May I speak to it now?

The Chairman: I will regroup amendment No. 70 with the amendments under discussion at the moment. The hon. Gentleman has indicated that he may wish to vote on it separately, and I understand that.

It will therefore be convenient to discuss amendment No. 70, in clause 17, page 9, line 29, at end insert—

    ‘(2A)   For the purposes of this Act, “private dwelling” is to mean an enclosed building, or part of a building, used exclusively for residential purposes.’.

Bill Wiggin: I am most grateful, Mr. Gale. Amendment No. 70 seeks to do precisely the same as amendment No. 153, moved by the hon. Member for South Swindon (Anne Snelgrove), but in a slightly different way. We want to clarify the precise meaning of what constitutes a private dwelling.

At present, clause 17 does not specify what is a private dwelling, and the explanatory notes are not clear about it either. The Select Committee criticised that terminology, and the Government have made no change. It is therefore necessary to amend the provision so as to prevent confusion arising over the powers of entry once the Bill has been enacted.

It is important that constables and inspectors are aware of what property they can enter, especially when an animal is in distress, as tensions can be heightened and things can become emotional. For instance, an outhouse, a yard or even a garden could be deemed to be a private dwelling—they are places where animals may be in distress and require urgent help. When animals are in distress, constables and inspectors
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should not have to wait for warrants to enter such areas simply because they are not sure whether they are private dwellings. Amendment No. 70 would make it explicit that a private dwelling shall be regarded as being an enclosed residential building only.

Paddy Tipping (Sherwood) (Lab): This is an important debate. I look forward to hearing the Minister clarify the situation.

It is vital for organisations such as the RSPCA to have a clear understanding of what constitutes a private dwelling. Much abuse takes place in outbuildings, yards and sheds. If they are defined as part of a private dwelling, the question arises of whether a warrant is necessary. I hope that the Minister will listen carefully to the debate and will reflect on the Select Committee’s report.

We will have the opportunity to discuss the issue again when we reach clause 56(3), which defines a private dwelling. It states that a private dwelling includes

    “any yard, garden, garage or outhouse which is used for purposes in connection with it.”

We may not be able to resolve that question this morning, but I hope that the Minister will talk with his officials and relevant organisations about clarifying the matter.

The Chairman: I hope that the Minister can adjust his notes in light of my reshuffled selection list.

Mr. Bradshaw: Thank you, Mr. Gale. I am grateful to my hon. Friend the Member for Sherwood (Paddy Tipping) for drawing the Committee’s attention to the definition given in clause 56(3). It was the subject of considerable discussion by the Select Committee in its pre-legislative scrutiny and also among officials. I hope that this does not sound classist, but the sort of judgment that I instinctively came to when trying to visualise what is meant by a private dwelling was a small terraced house, with a little garden not accessible from the street and a little tool shed at the back. That is rather different from a large rambling farmhouse with lots of outbuildings and a huge private garden. The question is: where does that private garden begin or end? Those matters are not, I suspect, easy to define, and we shall probably discuss them again on clause 56. However, I simply want to make it known that we had some difficulty in doing what the Select Committee asked for, which was to come up with a firmer definition of a private dwelling.

Amendment No. 154, tabled by my hon. Friend the Member for South Swindon, concerned powers of inspectors or constables to enter premises where they reasonably believe an animal in distress is to be found. There may be situations in which the emergency is clear, but equally there may be some in which it is only perceived. I appreciate that my hon. Friend has tried to anticipate that difficulty by using the phrase “serious and immediate danger” so that the proposed power of entry would not extend to animals that were
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merely likely to suffer. However, I suggest to her that immediate danger remains a matter of perception and degrees.

We do not believe that it would be proportionate to allow inspectors into people’s private homes in each and every situation in which they perceived an emergency. The Bill would become disproportionate in that case. It is clear from human rights law and from guidance that we have received from the Home Office that a proportionate solution is to require that an inspector who encounters what he or she perceives as an emergency in a private dwelling must satisfy a magistrate as to the reasonableness of that perception. I see merit in the concern that that would delay action in cases of animal suffering, but is important to bear it in mind that delay would not prevent action.

The police routinely obtain warrants to enter private premises, often in the course of investigating more serious crimes. We are not convinced that wider powers of entry are needed for animal welfare offences than for other criminal activities.

Bill Wiggin: Somebody who is running a fraudulent activity from their front room is very different from someone with a horse on their premises. We are concerned about whether the shed in which such a person is more likely to keep a horse counts as part of their dwelling. For example, if they are using it as an office, it does not. There is an anomaly here.

Mr. Hollobone rose—

Mr. Bradshaw: I give way to the hon. Gentleman.

The Chairman: Order. It is customary for the Minister to respond to one hon. Member before I call another one.

Mr. Bradshaw: I was not going to be very helpful; I was going to say that we shall come to the definition of a private dwelling in a moment. We are now talking about powers of entry.

Mr. Hollobone: I am not a great legal expert, but I believe that if a police officer were outside a private dwelling in which a person was clearly in pain, the officer would not require a warrant to make an entry. In the case that we are considering, of an animal suffering in pain, under the Bill the police officer would require a warrant.

Mr. Bradshaw: I was going to give an example, which has been given in the past, of a dog hanging itself by its lead from a balcony. A concern was expressed that enforcement agencies would not be able to intervene in that case, in which it was unambiguously apparent that if nothing was done the dog would die. My advice is that the police and emergency services already have adequate powers under section 17 of the Police and Criminal Evidence Act 1984 to enter to prevent serious damage to property, which includes animals, in this case. They would also have a defence under section 5 of the Criminal Damage Act 1971 for any damage that they might cause to property. They currently use those powers and I am not aware that they have proved in any way deficient.

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I do not think that it would be appropriate to expand those powers beyond police officers by amending clause 17. That would give powers to inspectors as well, and would risk incompatibility with our human rights obligations. It may be worth noting that the police are happy with the powers set out in the Bill.

Anne Snelgrove: Subsection (2) seems to suggest that no private dwellings can be entered, even with a warrant. That was the point of amendment No. 153. Subsection (2) says:

    “Subsection (1) does not authorise entry to any part of premises which is used as a private dwelling.”

I seek clarification from the Minister that private premises can be entered.

Mr. Bradshaw: Yes, they certainly can, with a warrant. If my hon. Friend looks at clause 46, that will become even clearer to her.

Amendments Nos. 153, 155 and 156 relate to the power to enter private dwellings to search for fighting animals or to inspect farm premises as well as to entry in emergencies. Clauses 17, 19 and 24 already provide for powers of entry. Therefore, there is a right to enter, and any obstruction will be an offence. That is provided for in paragraph 13 of schedule 2. Such a right to enter does not apply to dwellings, but if there is a need to enter a dwelling, again clause 46 makes it clear that a warrant can be applied for.

Hon. Members will see that clause 46 allows for the grant of a warrant to enter a dwelling not only under the first condition but also under the third and fourth conditions, if they apply. Similarly, if there is a need to use reasonable force to gain entry—for example, if there is nobody at the premises and the door is locked, or if the occupier refuses to co-operate—it is possible to apply for a warrant under clause 46 to allow the use of reasonable force to gain entry. On that basis, I urge my hon. Friend to withdraw her amendment.

Amendment No. 70, in the name of the hon. Member for Leominster, which we have now brought forward, seeks to narrow the definition of a private dwelling and thereby extend the range of premises to which entry can be gained without a warrant.

As I said at the beginning, we are well aware of the concerns relating to the power to enter private dwellings in an emergency, which are inextricably linked to our definition of a private dwelling in clause 56(3). I presume that the amendment is intended to be combined with the removal of that definition. For the benefit of those not acquainted with this issue, clause 56(3) defines a private dwelling as including yards, gardens, outhouses and garages. As the Bill requires a warrant before entry can be gained to private dwellings, the definition of a private dwelling becomes key to the scope of the Bill’s power of entry.

The definition of a private dwelling was included, as I said earlier, at the request of the Select Committee when it conducted its pre-legislative scrutiny of the Bill in autumn 2004. The choice of this definition was, as with scoping all our powers of entry, a question of balancing human rights against the concern for animal suffering. We believe that the majority of the
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population would consider their garden, sheds or outhouses, which may be full of tools or bicycles, to be part of their private dwelling and would not expect the police or inspectors to be able to demand entry to them without good grounds and a warrant to prove it.

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