Animal Welfare Bill

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Norman Baker: Will the Minister give way?

Mr. Bradshaw: I want to go into this matter in some detail, so the hon. Gentleman may like to intervene a little later.

I accept that there is concern that if an animal is suffering, or is likely to suffer, in a garden or outhouse, a warrant would still need to be obtained before entry could be gained to attend to it, which would lead to delay. I know that the RSPCA is concerned about that. However, I emphasise that powers of entry in such situations do not currently exist, even if there is an emergency and the animal is in a garden. Often the RSPCA is granted access by the owner of the premises, and we hope that that will continue to be the case, but it has no current power to enter without the owner’s consent. As has been said a number of times in our debates on the Bill, the RSPCA says that it does not want extra powers. The Bill would in future enable the police or inspectors to gain access with a warrant. That is progress—they do not have that ability at present.

Would the hon. Gentleman like to intervene now?

12 noon

Norman Baker: Yes. I am grateful to the Minister.

The Minister is talking about proportionality under human rights law, which is a proper approach to take, but proportionality suggests that a different approach should be taken to, on the one hand, an enclosed building such as a garage or outhouse, where activities may be going on and individuals would not want the police to interfere, and, on the other hand, to a yard or garden, which is by definition open to the public in the sense that people can see what is going on. Therefore, resisting entry to areas that are already visible to the public—so not private in the same sense as an outhouse or garage—is not reasonable.

Mr. Bradshaw: I am not sure that I agree with that definition. I am not sure whether most people would consider a small, enclosed garden at the back of a terrace house to be open to the public, but I will deal with the definition in a little more detail.

One of the things that has been overlooked by those who have concerns about the definition is that the outhouses and sheds must be used for purposes in connection with the private dwelling for them to fall into the definition of “private dwelling”. If I keep my children’s toys in my garage, that is a purpose connected with my private dwelling, and the garage would be considered part of my private dwelling. If, on the other hand, I run my animal boarding establishment from my garage or from premises in my garden, then that garage or that part of the garden will not fall into the definition. That is an important part of the definition and, I hope, ought to address most of the concerns.

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In passing, I would comment that there is no such thing as a standard definition of a private dwelling. In fact, most legislation does not even attempt to define it. Maybe we should not have tried, but we were asked to by the EFRA Committee. The Police and Criminal Evidence Act 1984 contains no definition for the purposes of exercising police powers. The Wildlife and Countryside Act 1981 also has no definition, nor does the Natural Environment and Rural Communities Bill, which is currently being considered by the House of Lords.

The other point to make about the amendment is the suggestion that a warrant should be necessary only where the building is used exclusively for residential purposes. We rejected that approach, because we feel that entry to a person’s home should still be subject to safeguards, even if he or she uses that home for other reasons as well. If I keep my business records and accounts in my kitchen drawer, and my children do their homework at the kitchen table, then the property is still first and foremost a home. It is reasonable to require a police officer or inspector to obtain a warrant to enter that place.

Norman Baker: If we are inventing a new definition of a private dwelling which, as the Minister says, seems to cross over into other legislation, may I ask what discussions he has had with other Departments or what advice has been sought from them?

Clearly, if the definition of a private dwelling is established here, it could be used in court cases to run across other legislation. That could have unforeseen consequences for existing legislation, which may not be helpful in terms of, say, enforcing criminal law.

Mr. Bradshaw: Yes, we have had discussions with the Home Office and it is content with the definition included.

Paddy Tipping: The area is difficult and the Minister is clearly trying to be helpful. I want to be absolutely clear in my own mind about the situation. If the outbuildings are not used primarily for activities that would normally take place in a house, then a warrant would not be necessary. Is that correct?

Mr. Bradshaw: That is certainly my understanding of how it would work, yes.

Norman Baker: To follow that last point, that may be the case in terms of an outhouse, but obviously an outhouse is situated in a garden, and presumably could not be reached without going through the garden.

The Chairman: Has the Minister concluded?

Mr. Bradshaw: Yes.

Bill Wiggin: Behind the amendments lies the fact that, as we are all aware, acts that we want to see banned by the Bill take place in people’s houses. We seek to ensure that, if acts of cruelty or failures of duty to secure welfare take place in outhouses, sheds, gardens or garages, we can get the inspectors in as quickly as possible. The idea that that is difficult is a
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reasonable defence by the Minister, but the Bill later goes on to give the power to detain hovercraft, so the fact that this provision would be difficult should not be insurmountable.

The Minister’s definition is that if buildings are being used for keeping animals, they cannot be deemed to be part of a private dwelling; for example, someone has a horse that they are keeping in an outbuilding. If that is the case, I am content that we have achieved what we set out to do. We need to be sure that that is right. The minute one puts one’s pet in the outbuilding, one is now not using it primarily as part of one’s dwelling.

Norman Baker: I return to the point that I just made, which I hope is important and worth one or two possible glances. It is no comfort to have a different definition of an outhouse if, for the purpose of the Bill, the outhouse is in a protected part—in other words, a garden or a yard—that one simply cannot cross to get to the building in question.

Bill Wiggin: That is a very important point. I conclude by asking the Minister to go away and think about this. He is right; we do not want acts of cruelty to be allowed to continue and a warrant to have to be sought simply because of the geography of a particular building. On the other hand, he is also right to say that we do not want troops of inspectors marching through a property while someone is watching the telly simply because they have a budgie in the garage, or whatever. We must get the balance right.

Mr. Hollobone: An RSPCA inspector standing outside a property with a detached garage and hearing an animal in distress in the garage will not know whether the children’s toys are in the garage and, therefore, will not know whether to apply for a warrant.

Bill Wiggin: That is another important intervention. The Minister will have taken the temperature of Committee members on this point and will know that there are genuine concerns about what is an outhouse and what is an outbuilding. We do not have a problem with his attempts to define a private dwelling, and we do understand the privacy issues. This is a proper challenge, which the Government should think about. With that in mind, I am content not to press my amendment to a vote.

Anne Snelgrove: I am quite happy with the Minister’s explanation, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 ordered to stand part of the Bill.

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Clause 18

Orders in relation to animals taken under section 16(5)

Bill Wiggin: I beg to move amendment No. 209, in clause 18, page 10, line 3, at end insert

    ‘provided that it is satisfied that an information has been laid for an offence under any part of this Act relevant to an animal or animals that are the subject of the application.’.

The Chairman: With this it will be convenient to discuss the following amendments:

No. 175, in clause 18, page 10, line 27, leave out subsection (5) and insert—

    ‘(5)   The appropriate national authority shall issue guidance about the exercise by a court of powers under subsection (1).

    (6)   In determining how to exercise its powers under this section, the court shall have primary regard to the welfare of the animal.’.

No. 130, in clause 18, page 10, line 28, after ‘regard’, insert

    ‘to the interests of the animal and’.

Bill Wiggin: I am grateful to you for lumping amendment No. 70 in with the other amendments to the previous clause, Mr. Gale, because I may need to detain the Committee briefly on this.

Amendment No. 209 would ensure that orders under clause 18 were made only when necessary. Without it, the Bill allows an order to be made that interferes with due legal process by ordering the destruction or disposal of the subject matter of any proceedings. All investigators are bound to preserve exhibits for use in court for examination by the defence. Failure to do so often means that the proceedings are dismissed for abuse of process. Without the amendment, a court could allow the destruction or disposal of an exhibit before the person who was to become the defendant had the chance to have the exhibit examined by his own experts. At the time of the application, he would not know whether there was a need for such an examination. Furthermore, the fact that information has been provided in relation to an offence entitles a defendant to apply for legal aid.

Although I appreciate that there may be a need to treat an animal, and I am certainly not against any animal receiving any treatment that it needs, I am concerned that that would interfere with the defendant’s right to receive due process. Will the Minister explain how he intends the legislation to cope with that anomaly?

Amendment No. 175 is in two parts. The first part would ensure legal consistency by allowing the appropriate national authority to issue guidelines as to how the court was to exercise the powers laid down by subsection (1). Much of the clause will be determined by case law, but I am quite sure that the courts would find it useful if the Government issued some guidance on how to interpret the clause so that there was greater consistency.

The second part of the amendment, which would replace subsection (5), is designed simply to ensure that the welfare of any animal taken into possession is given priority and is certainly given precedence over its
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value, which I am sure all hon. Members would agree is a rather crude measure of the importance of an animal.

Clause 18 makes no mention of giving primary regard to the welfare of the animal in question. For example, a court may predominantly examine the financial costs and the animal’s value, rather than give priority to what is right for that animal. In those circumstances, if an animal has a severe but not necessarily incurable illness, the court may determine that it is right to put the animal to sleep, especially if the costs of undergoing treatment are considerable. That may not, however, be the owner’s wish, and the animal should be given the opportunity to live if there is a good chance that it can survive.

Amendment No. 130 would ensure that the animal’s interests were put first, as in amendment No. 175. The RSPCA supports both amendments. Subsection (5) does not explicitly state that the Bill will put the animal’s interests first. I am curious about why matters of value and cost must always come second to the interests of the animal; we should do everything that we can to safeguard animals, even if it means extra costs. It is a responsibility that we undertake as owners of an animal and as a society. Under the duty of care, animal owners are obliged to put the interests of their own animals first, and it would be in keeping with the spirit of the Bill and legally consistent if the courts had to do the same. The amendment would ensure that that happened.

Mr. Bradshaw: With your leave, Mr. Gale, as well as responding to the amendments, I want to move amendment No. 136 formally.

The Chairman: Order. Let me explain: amendment No. 136 has already been debated with amendment No. 135. When amendments are debated collectively they are voted on separately, if that is appropriate, in the order in which they appear in the Bill. Amendment No. 136 will be called after this group of amendments.

Mr. Bradshaw: I am grateful for that clarification, Mr. Gale. I am also grateful to the hon. Member for Leominster for tabling amendment No. 209 and raising the issue, which merits an explanation.

The proposal in the draft Bill published in July 2004 looked very different from the present clause 8. There has been much simplification since then and the procedure for disposing of an animal under clause 18 has been separated from the need to bring a prosecution. The equivalent power in the current law is in the Protection of Animals (Amendment) Act 2000, but that law is limited to animals kept for commercial purposes, and for an order for disposal to be made under the Act there must be an ongoing prosecution.

Clause 18 has been drafted much more widely. If an animal has been taken into possession under clause 16(5), that would make it possible to apply for a disposal order. The owner or keeper of that animal does not have to be prosecuted for an offence. I shall state the reasons for that, and then deal with possible concerns.

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This change in the Bill will close a loophole in the law, and it is very important that that is done. It is not difficult to envisage a situation in which, even if one did not want to prosecute the owner, one might want to remove the animal from that situation and to take a decision on its future. An obvious example would be that of an old, infirm or mentally impaired owner who is incapable of adequately providing for the animal. The animal might need to be removed, but it is unlikely to be in the public interest to bring a prosecution against the owner.

Secondly, it might be in the interests of the animal to be disposed of quickly. If a dog is taken into possession, for example, it might be in the dog’s interests that it is ordered into the care of a sanctuary so that it can quickly be rehomed. Until an order has been made for that dog, it would have to remain with the seizing authority.

Thirdly, because of resources it is not practical to require a seizing authority to keep an animal until a prosecution is initiated. I agree that in many cases a prosecution could be mounted quickly, but equally, in other cases, it might take some time. Local authorities do not always have the funds or the facilities to accommodate a herd of cattle for six months, for example, while they gather evidence for a prosecution. Even if they did, I hope that none of us would consider that a justified expenditure. Those are the reasons why I have chosen to separate the power to dispose of an animal under clause 18 from the need to initiate a prosecution.

I shall now deal with the possible concerns. I appreciate the fact that the anxiety about our approach stems from concern that the interests of the animal’s owner should be adequately protected. My right hon. Friend the Secretary of State signed the declaration under section 19 of the Human Rights Act 1998 to indicate her belief that the Bill is human rights compliant. This is another part of the Bill in which human rights and animal welfare must be balanced, and we believe that we have struck the appropriate balance. We should not forget that an animal that is the subject of an application under clause 18 will have been seized because it was suffering or likely to suffer. If it was wrongly seized, the owner can apply under clause 18(1)(b) to have it returned. I have already agreed to consider amendment No. 68, which would require the person seizing it to notify the owner that they are doing so. Even if the animal is disposed of under clause 18, the owner remains entitled to be reimbursed for its value unless they are subsequently prosecuted and a deprivation order under clause 29 made against them.

There are two strands to amendments Nos. 175 and 130. The first seeks to include a provision that the courts should have regard to the interests of the animal when making a disposal order in relation to it. The second would require the appropriate authority to issue guidance to the courts on how to exercise their powers under this clause. On the first strand the hon. Gentleman raises an important point. The purpose of
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the clause is to protect the welfare of the animal, but I am happy to consider further whether we need to spell that out for the benefit of the court.

We do not think it necessary to issue guidance to the courts about how they exercise these powers. The types of situation in which an order under clause 18 may need to be made are many, and each application will turn on its own facts and merits. It would not be appropriate for us to try to anticipate all those different situations and potentially constrain the court’s actions. On that basis and given what I have said about amendment No. 130, I urge the hon. Gentleman to withdraw the amendment.

12.15 pm

Bill Wiggin: As always, I am grateful for the Minister’s comments. I am slightly concerned about one facet—the technical part. In the case of dogs and cats this is not quite so complicated, but more exotic animals are difficult to look after once they are seized. The concern was raised during the Select Committee’s evidence gathering that if the court disposes of such an animal, it is virtually impossible to proceed with the case. One cannot get legal aid. One cannot have one’s experts examine the issue and therefore defend oneself against the charges.

The other part to which I wanted to draw the Minister’s attention is the simple practicality of going to a magistrate to get one’s animal back when it has been seized. We are not dealing with normal situations when an animal is seized. The circumstances must, one would imagine, be fairly severe. However, if the circumstances are not severe, it should be easy to appeal against the seizure. I am not sure that we are a million miles apart on this.

The Minister mentioned the case in which a little old lady may have lost the plot to some extent. Her pets are taken away because that is in their interests, but if she subsequently recovers, she may feel very unhappy about it if she was not quite as ill as the person who removed her animals had thought. Again, there are good causes for appeal.

We want the animal’s interests to be taken seriously. That appears to be happening, and I am grateful for that, but I hope that the Minister will think about the difficulties in which this will place some pet owners. If he is prepared to nod his head in agreement, I will happily withdraw my amendment. His head has not moved much but I think he would probably like to think about it. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 136, in clause 18, page 10, line 8, at end insert—

    ‘(1A)   If an animal is taken into possession under section 16(5) when it is pregnant, the power conferred by subsection (1) shall also be exercisable in relation to any offspring that results from the pregnancy.’.—[Mr. Bradshaw.]

Clause 18, as amended, ordered to stand part of the Bill.

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Clause 19

Seizure of animals involved in fighting offences

Amendment made: No. 137, in clause 19, page 11, line 8, after ‘peace’ insert ‘is’.—[Mr. Bradshaw.]

Clause 19, as amended, ordered to stand part of the Bill.

Mr. Drew: On a point or order, Mr. Gale. In the Chairman’s provisional selection of amendments to clause 20 of 17 January, there was a whole line of amendments to be discussed including new clause 13, which stands in my name. Those amendments have disappeared not only from the programming for clause 20 but from all programming. Is there an explanation for that?

The Chairman: I apologise for the pause. I needed clarification because I was not party to that process. A number of amendments were withdrawn, with which the new clause to which the hon. Gentleman refers was grouped. The new clause will therefore be debated, as and when it is reached, with the other new clauses at the end of the Bill. Is that clear?

Mr. Drew indicated assent.

Clause 20

Entry and search under warrant in connection with offences

Norman Baker: I beg to move amendment No. 23, in clause 20, page 11, line 26, after ‘8’, insert ‘[Pet fairs],’.

The Chairman: With this it will be convenient to discuss the following: Amendment No. 28, in clause 29, page 14, line 8, after ‘8’, insert ‘or section [Pet fairs],’.

Amendment No. 30, in clause 30, page 15, line 36, after ‘8’, insert ‘section [Pet fairs],’.

Amendment No. 33, in clause 33, page 17, line 14, after ‘8’, insert ‘or section [Pet fairs],’.

Amendment No. 36, in clause 36, page 19, line 2, after ‘7’ insert ‘or section [Pet fairs]’.

Amendment No. 38, in clause 36, page 19, line 18, at end insert

      ‘(e)   in the case of conviction for an offence under section [Pet fairs], to anything used to commit the offence.’.

New clause 2—Pet Fairs—

    ‘(1)   A person commits an offence if he sells an animal in the course of or in connection with a pet fair.

    (2)   A person commits an offence if he arranges an animal fair or knowingly participates in making, or carrying out, arrangements for a pet fair.

    (3)   In this section, “pet fair” means an event—

      (a)   which is open to the public (whether on payment or otherwise),

      (b)   at which animals are sold (or which is held with a view to the sale of animals) as pets, and

      (c)   where any such sale is made (or is to be made) in the course of a business.

    (4)   Where a business consists wholly or mainly of the keeping or selling of animals, an event held in the ordinary course of that business at premises ordinarily occupied for the purposes of that business shall not constitute a pet fair.

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    (5)   For the purposes of this section—

      (a)   “selling” an animal includes—

      (i)   offering or exposing it for sale,

      (ii)   exchanging it, or offering or exposing it for exchange, and

      (iii)   transferring, or agreeing to transfer, ownership of it in consideration of entry by the transferee into another transaction;

      (b)   the sale of an animal “as a pet” includes its sale for private captivity or private husbandry, but does not include its sale for any purpose relating to agriculture.’.

Norman Baker: I shall spend very little time on the amendments, as they are merely consequential on new clause 2, to which I shall devote my time. The issue is pet fairs. I suspect that there is common ground in Committee on the fact that the present law needs to be clarified. Section 2 of the Pet Animals Act 1951 states:

    “If any person carries on a business of selling animals as pets in any part of a street or public place, or at a stall or barrow in a market, he shall be guilty of an offence.”

That may have looked clear to legislators in 1951, and may even look clear to us now. However, practice on the ground has demonstrated that that section is subject to uncertainty. What exactly is a market, a public place or even a pet? There have been uncertainties as to what the law means, notwithstanding the 1983 amendment to that Act. As a consequence, we have a patchwork of enforcement across the country, with different local authorities taking different views. Some have deemed the 1951 Act to represent a ban on pet fairs, and I subscribe to that view. Others have taken the contrary view. Some court cases have upheld the suggestion that the 1951 Act prohibits pet fairs, so there is case law for those of us who do not wish to see pet fairs allowed.

The good news is that the Government have taken the opportunity in the Bill to recognise that the position must be clarified. The bad news is that they have concluded that pet fairs should be legalised. I think that we should stick to the spirit of the 1951 Act and the rest of the Bill by outlawing the activity in question.

Bill Wiggin: Will the hon. Gentleman give way?

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