House of Commons - Wild Animals in Circuses - Environment, Food and Rural Affairs Committee

Wild Animals in Circuses - Environment, Food and Rural Affairs Committee Contents

Wild Animals in Circuses

Introduction

1. The Government invited us to scrutinise the draft Wild Animals in Circuses Bill when it was published on 15 April 2013. The Bill would ban the use of wild animals in travelling circuses in England from December 2015. Only two circuses possess a licence to use wild animals in travelling shows in England, and the number of animals covered is 21. Discussions are under way with Ministers in the Devolved Administrations about extending a ban beyond England. Questions arise whether a ban might be challenged under European law.

The principle of a ban

BACKGROUND

2. The recent debate about the future of animals in circuses was sparked by the high-profile case of Anne the Asian elephant who was travelling with the Bobby Roberts Super Circus. Animal Defenders International secretly filmed a member of staff at the circus beating and abusing Anne. The House of Commons subsequently agreed on 23 June 2011 to a motion calling on the Government to ban the use of wild animals in circuses under the Animal Welfare Act 2006. The Government made a commitment on 1 March 2012 to pursue such a ban in England, but to do so through new primary legislation: the powers contained in the 2006 Act could, it argued, be applied only on welfare grounds, and there was insufficient evidence of irredeemable welfare problems among wild animals in travelling circuses to justify a ban on those grounds.[1]

3. The Welfare of Wild Animals in Travelling Circuses (England) Regulations 2012 were introduced from 20 January 2013 as a stopgap until primary legislation could be enacted. The regulations require circuses using wild animals to obtain a licence and will be superseded if the draft Bill becomes law. Two circuses have obtained licences: Circus Mondao is licensed to use two camels, two reindeer and two zebra; Jolly's Circus may use one ankole, one camel, one fox, one raccoon, four reindeer, six snakes and one zebra.[2]

SUPPORT FOR A BAN

4. Mark Pritchard MP, opening the House of Commons debate in June 2011, noted that 92% of the public supported a ban in an extensive opinion poll, on which Defra has also relied.[3] Lord de Mauley, Under-Secretary of State at the Department of Environment, Food and Rural Affairs (Defra), says that the "overwhelming view of the public [...] is that travelling circuses are no place for wild animals".[4]

5. We deplore the way that Anne the elephant was treated by a member of staff at the circus concerned and commend the work that Animal Defenders International did in exposing this individual crime. We note that existing animal welfare legislation was breached in this incident and that the circus owner concerned was subsequently convicted of mistreating the elephant. We also welcome the fact that Anne has been retired from the circus and note that there are no longer any elephants licensed for use in British travelling circuses

6. The Government argues that the use of wild animals in circuses is "traditional, but outdated", that the "wild nature and innate value" of wild animals should be recognised, and that "little or no educational, conservational, research or economic benefit [is] derived from wild animals in travelling circuses that might justify their use and the loss of their ability to behave naturally as a wild animal".[5] The Government further argues that a ban need not reduce the value or success of circuses. Lord de Mauley notes:

"The British circus industry has a rich heritage dating back over two centuries, and I hope it will continue to thrive long into the future. For many years wild animals were an integral part of the circus experience: the only chance that most people would have to glimpse exotic beasts from distant lands. Today, by contrast, we are fortunate to enjoy world-class zoos, a wide-reaching education system and internationally renowned wildlife documentaries, which together give children and adults an appreciation and knowledge of wild animals and the environments they come from".[6]

7. The Royal Society for the Prevention of Cruelty to Animals (RSPCA), the Born Free Foundation and Animal Defenders International each strongly supports a ban. Unlike the Government, however, they focus primarily on the welfare of the animals concerned: the RSPCA believes "that animals should not be subjected to the confinement, constant transportation and abnormal social groups associated with circus life".[7] Born Free is "convinced that the welfare of wild animals cannot be met in travelling circumstances".[8] Animal Defenders International "disagree with the Government's contention that the evidence of suffering is insufficient".[9] They note, however, that the Government's position is based not on welfare but on ethical considerations. The RSPCA identifies some precedent for relying on ethical arguments to outlaw particular animal practices, citing the Fur Farming (Prohibition) Act 2000 and the Hunting Act 2004 as complete or partial examples.[10]

OPPOSITION TO A BAN

8. Opponents of a ban make much of the Government's acceptance that there is no overriding welfare problem among wild animals used in circuses. In evidence to us, John Dineley, a specialist zoological consultant, says: "It is reasonable to advocate that it should not be the government's role to dictate what is or is not aesthetically or culturally acceptable to some as regards the use of animals in circuses when by their own admission no animal welfare issues are involved".[11] Federation Mondial du Cirque considers the "legal and factual basis for the Bill is very thin" in the absence of a welfare case.[12] Similar points are made by the European Circus Association, the Classical Circus Association and the Association of Circus Proprietors of Great Britain, the first of which suggests that the evaluation of animals in circuses should be made on the same basis that allows millions of animals to be kept in farms, stables, racecourses, zoos, parks and private homes.[13]

9. It is also argued that the 2012 regulations and the licensing system they introduced should be given time to bed in.[14] The Association of Circus Proprietors of Great Britain, for example, suggests that the regulations could be tightened if there is cause for concern.[15] It also notes that there has been no opportunity in the six months since they were introduced for any scientific assessment of their impact. The regulations were always intended, however, as a temporary measure until primary legislation could be enacted. Moreover, licensing does not meet the Government's desired objective of ending the practice of keeping wild animals in travelling circuses for the purposes of performance or exhibition.

10. Opponents of a ban question the assertion that the use of animals is "outdated" and argue that that is simply a matter of personal taste: Jolyon Jamieson, Director of the Association for the Promotion of Traditional Circus Arts, and Andrew Lewis, a member of that association, independently suggest, for example, that circuses without animals are dull or little more than a variety show.[16]

11. It is also the case that animals travel and perform in contexts other than the travelling circus. Zoos, for example, may have animal performances, and animals used in film and television productions often travel to and from location. John Dineley suggests that zoos contain more performing animals, trained for public display, than has been the case for many years in circuses.[17] Dr Ted Friend, an American professor of animal behaviour, suggests that watching "highly trained horses perform in the London Olympics was no more outdated than watching highly trained circus animals".[18] The distinction between those examples and circuses, however, is that circus animals are used primarily for performance or exhibition, while, say, animals kept in zoos have wider scientific or educational purposes.

12. While there is no doubt that public opinion overwhelmingly supports an outright ban, we believe it is also the case that this opinion stems from a perception that large numbers of elephants and big cats are still used in performances by travelling circuses. In fact, there are no longer any elephants or big cats in British travelling circuses and most of the animals concerned are snakes, camels, zebra or raccoons. The total number of animals concerned is just 21 and has already fallen from 50 in 2007 when the Radford Report was written.

13. Individual cases like that of Anne the elephant are abhorrent, but we must look at the balance of evidence. The most comprehensive academic study of animal welfare in circuses was conducted in 2007 and set out in some detail in a report by Mike Radford, Chairman of the Circus Working Group. That report concluded that there appeared to be "little evidence to demonstrate that the welfare of animals kept in travelling circuses is any better or worse than that of animals kept in other captive environments".[19] We do not believe that evidence base has materially changed.

14. We are concerned that the Bill, as drafted, may create new anomalies. We received evidence highlighting the fact that some animals, such as camels, while not ordinarily domesticated in the UK, are ordinarily domesticated in other countries. Camels could still be transported to take part in races in the UK but not in circuses.

15. We also conclude that issues around the keeping and transporting of species such as zebra are not materially different from the challenges of keeping or transporting horses. We see little sense in banning the use of species such as snakes or parrots by travelling circuses when such species can be bought in pet shops and be held in captivity in a domestic environment. It is not clear that there is a material difference between those who keep wild birds for falconry displays and those who keep such birds for displays in a circus. Nor is the difference clear between having a display involving a raccoon in a circus or a raccoon in an act on Britain's Got Talent.

16. Finally, we believe that in some (but not all) cases, a move that separates an animal such as a domesticated raccoon from its lifelong keeper and trainer may not be in the best interests of the animal concerned. However, the challenge of ensuring the welfare of some wild species such as big cats or elephants in a travelling circus environment, while not impossible, is certainly greater. We recognise that cultural and social attitudes are shifting towards a view that using animals in circuses for shows and demonstrations is unacceptable.

17. We recommend that the Government revise its approach to the Bill so that a Schedule be attached that contains a proscribed list of animals which can no longer be used in travelling circuses. Initially, for example, there would be a ban on all big cat species and elephants but not on, say, snakes, camels, zebra or raccoons. The Secretary of State should have the power through secondary legislation to amend the list in future to reflect prevailing social and cultural attitudes. Those animals not on the proscribed list should, nevertheless, still be protected by the new licensing regime introduced in 2012, which should continue.

18. We believe that such an approach would be a more proportionate response to the understandable public outcry in the wake of the case involving Anne the elephant.

The Bill in practice

19. If the Government disagrees with our recommendation in paragraph 17 and continues with legislation to introduce the Bill as drafted and to end the licensing regime, then we invite it to take into account the following points during the passage of a future Bill.

COMMENTS ON CLAUSES

Clause 1

20. Clause 1 prohibits circus operators from using wild animals in travelling circuses in England for performance or exhibition. The RSPCA, and others, suggest that the clause 1(2) provision relating to whether the animal "performs or is exhibited as part of the circus" may leave it open to travelling circuses to keep wild animals and travel with them, so long as they are not required to perform or to be exhibited.[20] The RSPCA points out that the 2012 Regulations use the phrase "for the purpose of performance, display or otherwise", and suggests that the Bill be amended to reflect that wording. The Bill has, however, been intentionally drafted more narrowly than the regulations: those were intended to allow inspectors to inspect wild animals wherever they were being kept while the Bill focuses specifically on animals' use. The Government is not introducing the ban on welfare grounds, and it would not prevent circuses from owning wild animals, but merely prevent their use for performance or exhibition.

21. Animal welfare organisations appear to be concerned that this would make it possible for travelling circuses from outside England to travel through England to those parts of the United Kingdom where no ban is in force, or to the European mainland. They would, while still transporting wild animals, be able to produce shows in England so long as those animals did not perform or were not exhibited. So long as the ban applies only to England, it seems to us reasonable that circuses affected should be able to travel to the other three constituent parts of the UK without undue hindrance. To add "or otherwise" to the provision would also be to introduce greater restrictions on ownership than are intended; the Bill is focused on the use of animals, not their ownership, and in the absence of any welfare issue, it is hard to see that the Bill should go further or that it could do so without successful challenge. We do not agree that clause 1(2) should be amended as suggested by the RSPCA and others to match provision in the 2012 regulations.

22. Clause 1(3) sets the penalty for contravention of the Act at a maximum level 5 fine, currently £5,000. The RSPCA suggests that the courts should have a power to disqualify offenders from keeping wild animals. We disagree: the offence created by the Bill relates to use of a wild animal in a circus, for which a fine is an appropriate penalty. The offence does not relate to the welfare of the animal, and disqualification proceedings are possible under other legislation in the case of ill-treatment.

23. Clause 1(5) defines 'wild animal' as "an animal of a kind which is not normally domesticated in Great Britain"; this definition is similar to that used in section 21 of the Zoo Licensing Act 1981, though the Government should explain during the passage of the Bill why the addition of the phrase "of a kind which is" has been thought necessary.[21] Definitional issues remain for discussion during the Bill's passage, relating in particular to 'wild' and 'domesticated'. The Association of Circus Proprietors of Great Britain notes, for example: "The definition of a 'wild' animal requires more detailed consideration [...] The Bill fails to take into account that several uncaged species, such as camels and llamas, are domesticated and working or farmed animals in their own countries of origin".[22] The Government should explain why the definition of 'wild animal' in clause 1(5) differs slightly from that in the Zoo Licensing Act 1981.

Clause 2

24. Clause 2 enacts the Schedule to the Bill, which sets out enforcement powers for inspectors appointed for the purposes of the Act, including powers of entry, inspection and seizure and how those powers are to be exercised. The RSPCA believes that the Schedule should be amended to enable constables as well as inspectors, as is the case under the Animal Welfare Act 2006.[23] Animal Defenders International thinks the decision to include only inspectors requires clarification.[24] Given the small number of circuses involved, the addition of a power for constables would not imply a huge additional burden for the police, even if the appointed inspectors will, in practice, perform most inspections. The Government should amend the Schedule to include constables as well as inspectors or explain why powers of inspection, entry and seizure should be provided only to inspectors.

Clause 3

25. Clause 3 amends the Dangerous Wild Animals Act 1976 to remove an exemption no longer required in England.

Clause 4

26. Clause 4(1) limits the Bill's extent to England and Wales (although the offence created would apply only in England). Defra is consulting its counterparts in Scotland, Wales and Northern Ireland on the eventual territorial scope of any Bill. The Government recognises that enforcement would be simpler if the legislation extended across the UK, a point made strongly by the Trading Standards Institute.[25] The point made (at paragraph 21) about animals continuing to travel with circuses, so long as they neither perform nor are exhibited in England, also applies if the Bill remains restricted only to England. It would clearly be desirable for any ban to apply to the whole United Kingdom and we urge Defra to pursue discussions with counterparts in the Devolved Administrations with a view to reaching a co-ordinated position before 1 December 2015.

27. Under clause 4(2), the Bill will not come into force until December 2015, allowing circuses up to three more touring seasons to adapt their programmes and make necessary arrangements for their animals. Lord de Mauley considers this a reasonable 'grace period'.[26] The Trading Standards Institute believes the comparatively long period improves the Bill's compatibility with the European convention on human rights in enabling alternative arrangements to be made for animals without requiring any change of ownership or deprivation of a possession.[27]

28. Most animal welfare groups suggest the period is too long, with the RSPCA, in particular, arguing that it may encourage circuses to market "last chance to see" shows in 2014 and 2015.[28] There is, however, also the purely practical point that a legislative slot will need to be found for the Bill, and none has yet been identified. In addition, agreement from the Devolved Administrations that a ban was necessary might, ideally, result in a UK-wide Bill rather than separate pieces of legislation for each jurisdiction. The proposed commencement date of 1 December 2015 is comparatively distant, but we are satisfied that the needs for legislative time, for negotiation with the Administrations in Scotland, Wales and Northern Ireland, and for suitable alternative arrangements to be made for the animals concerned provide sufficient reason for that choice of date.

The European dimension

29. The Government considers the Bill compatible with the European convention on human rights.[29] The proposed ban would not, it considers, require any change of ownership of a wild animal or otherwise amount to a deprivation of a possession.[30]

30. The Classical Circus Association opposed a similar ban in Austria in May 2005 arguing that it was contrary to the free movement of services in the EU and discriminatory since animals could be used in other contexts, such as film sets. An EU Commission opinion of 2005 said that a total ban was a restrictive measure that should be applied only if there were no alternative. The Commission reconsidered in 2009, however, releasing a second opinion stating that a restriction could be justified on grounds of animal welfare and that the protection of wild animals should be left to individual member states. The European Ombudsman criticised the Commission for closing infringement proceedings on those grounds, but the Commission's 2009 position remains the relevant statement of opinion.

31. The Austrian ban was introduced on welfare grounds, unlike the proposed ban in England. The Classical Circus Association correctly points out that the Commission's decision to discontinue infringement proceedings in the Austria case also rested on welfare grounds—i.e. that animal welfare was a matter for individual member states.[31] It believes that the Commission could well take a different course in relation to the England ban should infringement proceedings be brought if an argument is made about restriction on trade or on rights to use a possession. Federation Mondial du Cirque also notes that many European countries prefer regulation to a ban.[32]

1 HM Government, Wild Animals in Circuses, April 2013, Cm 8538, para 6 Back

2 HC Deb, 14 Feb 2013, col. 880w Back

3 HC Deb., 23 June 2011, col. 548 Back

4 HM Government, Wild Animals in Circuses, April 2013, Cm 8538, p.5 Back

5 HM Government, Wild Animals in Circuses, April 2013, Cm 8538,paras 15 to 18 Back

6 HM Government, Wild Animals in Circuses, April 2013, Cm 8538, p.5 Back

7 Ev W4 (RSPCA) Back

8 Ev W8 (Born Free) Back

9 Ev W20 (Animal Defenders International) Back

10 Ev W4 (RSPCA) Back

11 Ev W10 (John Dineley) Back

12 Ev W12 (Federation Mondial du Cirque.) Back