Draft Wild Animals in Circuses Bill

Written evidence submitted by the Classical Circus Association

Introduction

1. The draft Wild Animals in Circuses Bill ("the draft Bill") is driven by misconceived ethical considerations and personal preference. It has no clear objective and no sound evidential foundation. Its enactment would be in breach of the European Convention on Human Rights ("ECHR") and the Treaty on the Functioning of the European Union ("TFEU"). It is discriminatory and disproportionate.

The Government’s Arguments Against the Use of Wild Animals in Travelling Circuses are Flawed

2. Given the widespread use of wild animals in zoos, film, television, photography, displays at county and other shows and in other fields there can be no objection to their use in performance per se; merely to their use in travelling circuses. This is perverse and the arguments in Section 2 of the draft Bill are flawed.

3. Addressing each in turn:

(1) It is not necessary to use wild animals in travelling circuses to experience the circus.

4. The Government’s statement that "There is little or no educational, conservational, research or economic benefit 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" is ill-founded.

5. It overlooks that the use of animals is part of the practice of the art of classical circus. The European Parliament has by a Motion for a Resolution [1] asked the European Commission to:

(a) Introduce specific measures to ensure that the circus, including animal acts, is recognised as part of European culture; and

(b) Urge Member States who have not already done so to recognise the circus, including animal acts, as part of European culture, as in the case of opera and dance.

6. There is therefore a movement towards the recognition of the circus arts as part of European culture, including the use of wild or other animals. Any ban on the use of wild animals performing in circuses would materially affect the art form of classical circus with animals, and would be contradicting the European Parliament’s intention to preserve this part of European culture.

7. Classical circus with animals is a business activity and has an ‘economic benefit’. It is a business enterprise for tax and other purposes. The fact that DEFRA has had to be granted an exemption from the Government moratorium restricting new regulations applying to micro-businesses aptly demonstrates that this proposed legislation restricts growth and business enterprise [2] .

(2) Wild animals are not naturally suited to travelling circuses and may suffer as a result of being unable to fulfil their instinctive natural behaviour.

8. There is no evidence of suffering of animals in travelling circuses, as the Government acknowledges [3] . The findings of Dr Ted H Friend [4] , who has been conducting behaviour and stress related research on species for over 30 years, suggests that he "is more concerned about chronic boredom experienced by zoo and sanctuary animals whose activity and environmental options are greatly limited because of restricted contact than [he] is about the welfare of animals travelling with a well managed circus" [5] . It is submitted that a ban on the use of wild animals in travelling circuses is motivated by ethical objections to their use and is not based on the scientific evidence or other rational criteria.

(3) Recognition that wild animals have intrinsic value, and respect for their inherent wildness and its implications for their treatment.

9. The regulation of travelling circuses under the existing welfare legislation (as set out in paragraph 9 of the draft Bill) achieves just that. The licensing of circuses ensures that such animal welfare and respect for an animal’s ‘wildness’ is enforced and maintained at the standard expected for wild animals in other settings such as zoos. There is nothing to distinguish the use of wild animals in travelling circuses from the use of wild animals in zoo displays. All of the animals currently used in travelling circuses have been bred in captivity, and none have been taken from the wild. In many cases, the animals have been bred in captivity for numerous successive generations.

(4) The practice adds nothing to the understanding and conservation of wild animals and the natural environment.

10. There is no reason why it should. In any event, it cannot be argued that animal trainers who devote their lives to these animals do nothing for the understanding and conservation of these animals, and there is no such evidence. On the contrary, circus animals can function as an important resource for researching animal illnesses and medicine as they can be handled and observed with ease and with no adverse effects on the animals.

The Bill Fails to Fulfil the UK’s Obligations under the European Treaties

11. The total ban on the use of wild animals in travelling circuses would:

(1) Impose a quantitative restriction on imports, contrary to Art 34 TFEU (ex Art 28 TEC), because wild animals for use in travelling circuses will no longer be imported into England from other Member States. The restriction could not possibly be justified on the grounds of public morality, public policy or protection of animals, especially since the restriction would constitute a means of arbitrary discrimination between Member States, since England would be at a competitive disadvantage in the international market of travelling circuses - see Art 36 TFEU (ex Art 30 TEC).

(2) Restrict the freedom of establishment of nationals of a Member State in the territory of another Member State, contrary to Art 49 TFEU (ex Art 43 TEC), because animal trainers Europe-wide will not be able to establish a travelling circus business in England.

(3) Restrict the freedom to provide services within the Union in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended, contrary to Art 56 TFEU (ex Art 49 TEC), because travelling circuses from the rest of Europe who use wild animals will not be permitted to operate in England. There can be no dispute that the use of wild animals in travelling circuses is a ‘service’ being an activity of a commercial character, as set out in Art 57 TFEU (ex Art 50 TEC).

12. The concept of ‘public policy’, particularly as any justification for a derogation from the fundamental principle of the freedom to provide services, must be interpreted strictly, so that its scope cannot be determined unilaterally by Member States without any control by the Community institutions. Furthermore, measures which restrict the freedom to provide services may be justified on public policy grounds only if they are necessary for the protection of the interests which they are intended to guarantee and only in so far as those objectives cannot be attained by less restrictive measures [6] .

13. In the case of the draft Bill, it is unclear what the interest is which it is designed to protect, since the Government has acknowledged that "there is currently insufficient evidence of irredeemable welfare problems in travelling circuses with wild animals to justify a ban on welfare grounds" [7] . The reasons set out in paragraph 19 of Section 2 of the draft Bill go no where near meeting the standard for a necessary protection of public policy interests and are ill-founded in any event (see above).

14. Any such objectives can (and have been) adequately attained by less restrictive measures, namely the existing welfare legislation. Since the 2012 Regulations were enacted both travelling circuses in England, the Circus Mondao and Jolly’s Circus, have successfully obtained licenses . There have been no difficulties with compliance with the Regulations or otherwise.

15. It is highly likely that the ECJ and the Commission would find that there was no basis for the infringements.

16. The Government is aware that the European Commission took the view that the total ban on wild animals in circuses in the case of Austria restricted the free movement of services and did not comply with the Gebhard test (C-55/94) [8] . The Commission also accepted that the ban was in breach of the Right of Establishment [9] .

17. The Commission’s discretionary decision to discontinue infringement proceedings against Austria was because ‘animal welfare questions are better left to Member States’ [10] . Notwithstanding that the Ombudsman considered the decision to discontinue an ‘act of maladministration’ [11] , the justification of the Commission’s decision to discontinue infringement proceedings could not apply to the draft Bill, since the British Government has expressly accepted that the ban is not justified on welfare grounds [12] .

18. There is a real likelihood that the Commission would be bound to take a different course on infringement proceedings should the draft Bill be enacted than it ultimately did in Austria’s case. We also note that the Government appears tacitly to accept this is a concern in the Introduction to the Bill, where it states that a referral of the Austria case to the ECJ "would have been of interest to the UK Government" [13] .

19. If the ban is promulgated on animal welfare or public interest matters it cannot possibly be considered a proportionate measure, particularly in light of the licensing scheme operating successfully since 2012.

The Bill is Incompatible with the European Convention on Human Rights

20. Animal trainers working in travelling circuses will be deprived of their possessions, since they will have to re-home or otherwise dispose of their wild animals [14] . It is not the case in reality that the ban would not require any change of ownership of a wild animal, since the costs of its care can only be met by the animal trainers concerned consequent to a commercial enterprise [15] . Thus, Article 1, Protocol 1 of the ECHR (‘Protection of Property’) is engaged and infringed. Prohibiting the use of wild animals in travelling circuses in England is not in the public interest, for the reasons set out elsewhere in this submission. Thus there is no justification for the infringement.

21. In any event, ECHR Article 14 (‘Discrimination’) is engaged and infringed. The enjoyment to the right to protection of property would fail to be secured without discrimination on the ground of the "status" of animal trainers in travelling circuses. This is the case irrespective of whether ECHR Article 1, Protocol 1 is infringed (it being sufficient that the discrimination comes within the ambit of another article of the Convention).

22. The arbitrary discrimination is starkly illustrated by a comparison of animal trainers in travelling circuses with animal trainers working in static circuses, country fairs or with animals trainers taking animals around the country for work in film and television, against whom no ban on using wild animals is to be imposed. The discriminatory treatment is linked directly to the ‘personal characteristic’ of working in a travelling circus as distinguished from other animal trainers working in different environments, which involve captivity, animal performance, and in most cases travel [16] .

23. Should the Bill be enacted, there is a real likelihood that the courts would make a declaration of incompatibility under s. 4 Human Rights Act 1998.

The draft Bill is Discriminatory and Disproportionate in any event

24. Parliament should not enact discriminatory legislation. There is no justification for the discrimination against animal trainers in travelling circuses in contrast to animal trainers in environments such as static circuses, zoos, stables, training establishments for race horses, kennels, pets, and all other animal-keeping systems.

25. The existing welfare legislation sufficiently regulates and protects the welfare and needs of animals in circuses. In light of the Animal Welfare Act 2006 and the 2012 Regulations [17] , there is no need for a total ban on the use of wild animals in travelling circuses: the welfare of performing wild animals can be monitored and approved on an ongoing basis. Their inherent ‘wildness’ is appropriately respected in their treatment. The draft Bill is accordingly a disproportionate measure based on unsound objectives and no evidence.

May 2013