Wild Animals in Circuses (No.2) Bill

Written evidence submitted by Mike Radford OBE, Reader in Animal Welfare Law and Public Law, University of Aberdeen (WAC14)

ABSTRACT

· Notwithstanding the relatively small number of animals involved, primary legislation is necessary in order to give effect to the Government’s policy because:

o the principal justification for introducing a ban is on ethical grounds;

o the present licensing regime provides express legal authority and state sanction for the use of wild animals in circuses;

o the present licensing regime serves to undermine the effectiveness of the unnecessary suffering and welfare offences in the Animal Welfare Act 2006.

· It is considered that the proposed ban is compatible with both European Union law and the European Convention on Human Rights.

· Further consideration should be given to the meaning to be applied to the following terms:

o ‘travelling circus’;

o ‘domesticated’;

o ‘use a wild animal’.

Mike Radford is Reader in Law at the University of Aberdeen, where he specialises in animal welfare law and public law. Over the course of nearly 30 years he has worked extensively with politicians, officials, veterinarians, local authorities, and welfare organisations in developing public policy relating to animals. Mr Radford has previously served as a member of the Dog Advisory Council, the Companion Animal Welfare Council, the Animal Welfare Science, Ethics and Law Board of the Royal College of Veterinary Surgeons, and as a trustee of the PDSA.  He was a founder member of both the Animal Welfare Science, Ethics and Law Veterinary Association, and the Association of Lawyers for Animal Welfare. He is presently a Trustee of Dogs Trust and the Universities Federation for Animal Welfare.  He was appointed OBE in 2008 for services to animal welfare law.

Mr Radford was Chairman of the Circus Working Group. His report was published in October 2007.

This evidence is submitted to the Committee in a personal capacity.

PART ONE - WHY PRIMARY LEGISLATION IS NECESSARY TO INTRODUCE A BAN

1. The Ethical Dimension

1.1. Following a long campaign by those opposed to the use of wild animals in circuses, the Labour Government gave an undertaking to both Houses while the Animal Welfare Bill was before Parliament that, upon enactment of the legislation, it would rely on its enabling powers to introduce a ban by means of secondary legislation on the use of specific types of animals. The animals proscribed to be determined by reference to relevant scientific evidence. [1]

1.2. In June 2006, the Government appointed a Circus Working Group, of which I was Chairman, to review the relevant scientific evidence and to advise on which types of animals should be banned. Having considered the evidence, the international panel of assessors who were asked to review it [2] concluded that "There appears 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." [3]

1.3. This statement was regarded in some quarters as a vindication of the use of wild animals in circuses. It was not. It was merely an acceptance of a lack of relevant evidence – a consequence, at least in part, of the very narrow terms of reference imposed on the Working Group. These restricted its enquiry to just accommodation and transport. The most contentious issues – training, performance, and allegations of cruel treatment – were expressly stated to be outwith the Working Group’s terms of reference. Furthermore, the Government provided no funding to undertake further research into the two issues which the Working Group was charged with considering. The assessment of the available evidence therefore amounted to little more than a literature review of a very limited topic. The lack of compelling relevant evidence was therefore unsurprising.

1.4. This outcome did, however, pose a significant practical problem in terms of progressing with a ban by way of regulations. To proceed in the absence of supporting evidence would not only be contrary to the undertakings which Ministers had made to Parliament, it might also have left Ministers vulnerable to legal challenge on the ground that a ban was disproportionate or, indeed, ultra vires the parent Act.

1.5. For a range of reasons which are set out in detail in my Report, [4] I concluded that if the Government wished to proceed to ban any type of animal - essentially on the basis of ethical considerations - it would therefore need to do so by means of primary legislation. If, on the other hand, it still intended to rely on using secondary legislation, I advised that, in my view, the most it could achieve without the risk of a successful legal challenge was to implement a licensing scheme, a recommendation which was eventually adopted by virtue of the Welfare of Wild Animals in Travelling Circuses (England) Regulations 2012.

1.6. In recommending that if the Government was contemplating introducing a ban it would need to do so using primary legislation, I noted in my Report that:

‘In enacting primary legislation, Parliament is, of course, in a very different situation from that of a Minister bringing forward regulations. Parliament would not, for example, be confined to taking account of the scientific evidence. It could legitimately give consideration to ethical issues, public opinion, and is able to attach much greater weight to the interests of the animals involved. Furthermore, where there is uncertainty as to the impact on the welfare of the animals, Parliament may give them the benefit of the doubt in a manner which is simply not open to a minister employing delegated statutory powers.’ [5]

1.7. The ethical debate about the proper treatment of animals, their use, and our relationship with them, has moved on significantly since 2007. In particular, there is a wide consensus that preventing suffering and meeting their needs, while essential, are in themselves insufficient considerations, and attention has turned increasingly to the need to ensure that they have at least ‘a life worth living’ or, ideally, ‘a good life’. [6] While it could be argued that taking account of such standards may now provide Ministers with the requisite legal basis to enable a ban to be introduced by way of secondary legislation, the fact is that the Government continues to base its case principally on ethical rather than scientific grounds. As the Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs said recently at Second Reading|:

‘It is not necessary to use wild animals to operate a circus or to enjoy the circus experience….We need to consider the intrinsic value of wild animals. Modern society recognises the intrinsic value of these animals. This concerns the respect of animals and their natural behaviour. Wild animals in a circus are trained for our entertainment and amusement. That sends the wrong message to audiences about the intrinsic value of those animals. We should appreciate wild animals behaving naturally, not in a comic or superficial setting. We need to look at the educational conservation benefits. The practice of using wild animals in circus performances, unlike in zoos, does nothing to further our understanding or the conservation of wild animals. There is no greater benefit to humans or animals that justifies the use of wild animals in circuses. In short, it is an outdated practice that is no longer necessary to operate a circus or to enjoy the circus experience, and it is demeaning to the wild animals involved.’ [7]

1.8. However, while it continues to be my view that the enabling powers in the Animal Welfare Act 2006 are not sufficiently wide to empower Ministers to introduce a ban on ethical grounds, as stated above, Parliament undoubtedly has the inherent authority to incorporate its moral view in law by means of primary legislation.

1.9. Accordingly, notwithstanding that relatively few wild animals are used in circuses in England (or, indeed, other parts of the United Kingdom), it is submitted that primary legislation is the appropriate and, indeed, necessary means by which a ban should be introduced.

2. The Legitimacy Issue

2.1. Prior to the introduction of the present licensing scheme [8] there was no specific legal authority for the use of wild animals in circuses. Circus operators had the freedom to do so according to the general common law principle that a person is at liberty to conduct themselves as they wish, subject to any restriction imposed by law (‘everything is permitted except what is expressly forbidden’): no legal impediment, therefore no practical restraint. Accordingly, although the licensing regime introduced a degree of regulation, and thereby control and accountability, on the use of wild animals in circuses, it also for the first time provided specific legal sanction for the practice.

2.2. Ironically, then, at the same time as putting the use of wild animals in circuses under stricter control, the regulations - subject to the relevant conditions being met – had the effect of not only introducing an express legal right to continue the practice, but also bolstered its legitimacy by now being carried on with the consent, and under the authority, of the state. This is the antithesis of expressed public opinion and government policy. Accordingly, the effect of the regulations may therefore be regarded as inappropriate, but so too would reverting to the situation prior to 2013 when there was no particular regulation of these animals. It follows that the only expedient option to address this anomaly is a ban by means of primary legislation.

3. Undermining application of the Animal Welfare Act 2006

3.1. Although the licensing scheme was introduced in the interests of wild animals used in circuses, it is arguable that it may have had the opposite effect. The two principal offences in the Animal Welfare Act 2006 relate to, first, causing an animal unnecessary suffering and, second, failing to ensure an animal’s needs. These offences are, however, circumscribed.

3.2. In relation to the former, suffering will generally not be considered unnecessary (and therefore unlawful) if the conduct which caused it was in compliance with any relevant provisions of a licence; and the duty to have regard to an animal’s needs are limited to such steps as are reasonable in the circumstances and to the extent required by good practice. [9] It is, of course, for the courts to interpret and apply these latter terms, but it is highly likely that they would give considerable weight to the conditions contained in the licence. In other words, provided the licence conditions are complied with, the licensing regime effectively prevents a prosecution for either unnecessary suffering or poor welfare on the basis that the use of wild animals in circuses is itself inherently wrong and inappropriate.

PART TWO – OTHER ISSUES

4. European Union law and the European Convention on Human Rights

4.1. The European Commission has confirmed that ‘the welfare of circus animals remains the responsibility of the Member States’. [10]

4.2. To date, sixteen members of the Council of Europe have introduced a complete ban on the use of wild animals in circuses. [11] There has been no successful challenge to these measures before the European Court of Human Rights.

4.3. A ban has also, of course, been introduced in Scotland by virtue of the Wild Animals in Travelling Circuses (Scotland) Act 2018. Notwithstanding that the Scottish Parliament is required to legislate compatibly with both European Union law and the Human Rights Act 1998, no legal challenge to the competency of the legislation has been forthcoming.

4.4. If a challenge were brought before the European Court of Human Rights, regardless of the country of origin, it is anticipated that the Court would regard the member state as having a ‘margin of appreciation’ to decide for itself its policy on the use of wild animals in circuses.

5. The Definition of ‘Travelling Circus’

5.1. Surprisingly, it may be thought, the Bill does not include any definition of the term ‘travelling circus’. It is noted that an amendment has already been tabled addressing this issue. It is submitted that, in the interests of certainty, it is desirable that the term be clearly defined.

5.2. For the Committee’s information, there are presently two (similar) definitions of ‘circus’ in British legislation:

· ‘any place where animals are kept or introduced wholly or mainly for the purpose of performing tricks or manoeuvres.’ [12]

· ‘a place where animals are kept or introduced wholly or mainly for the purpose of performing tricks or manoeuvres as that place.’ [13]

There are also two definitions of a ‘travelling circus’. The first being a circus

(i) which travels from place to place for the purpose of giving performances, displays or exhibitions, and

(ii) (as part of which wild animals are kept or introduced (whether for the purpose of performance, display or otherwise) and (b) any place where a wild animal associated with such a circus is kept. [14]

The second

(a) means a circus which travels, whether regularly or irregularly, from one place to another for the purpose of providing entertainment,

(b) includes

(i) a circus which travels as mentioned in paragraph (a) for the purpose mentioned there, despite there being periods during which it does not travel from one place to another,

(ii) any place where a wild animal associated with such a circus is kept (including temporarily), (but not, for example, a circus which travels in order to relocate to a new fixed base for use only or mainly as a place to give performances). [15]

6. The meaning of the term ‘wild animal’

6.1. The Bill defines a ‘wild animal’ as a vertebrate other than man of a kind which is not commonly domesticated in Great Britain. It is important that the Bill makes it clear that the concept of domestication is distinct from breeding an animal in captivity, taming or training it.

6.2. In evidence to the Scottish Parliament on this issue, Dr Dorothy McKeegan, senior lecturer at the I nstitute of B iodiversity, A nimal H ealth and C omparative M edicine at the University of Glasgow , stated that, in her view, where a trainer reared and trained cubs,

‘they would still be wild animals, because they would still have very strong inherent and instinctive behavioural, physiological and psychological needs that would have been slightly altered but not completely removed by hand rearing. Such needs are not just down to the environment that the animal is in; these are behavioural needs and expressions that are consistent across a species, regardless of how the animal has been reared. I think that those cubs would still be wild animals. ’ [16]

6.3. On being asked whether she would hold the same view in relation to the fourth or fifth generation of such animals, Dr McKeegan replied,

‘ Yes, I would. The domestication of animals is not just about captive breeding and sometimes hand rearing but about the behavioural and genetic modification of the animal away from its wild progenitor. That is not going to happen with rearing generation after generation of animals in captivity. These are still wild animals. ’ [17]

6.4. Reflecting this advice, the Scottish Act further defines ‘domesticated’ to mean that ‘the behaviour, life cycle or physiology of animals of that kind has been altered as a result of the breeding or living conditions of multiple generations of that kind being under human control’. [18] In addition, the Act contains a provision enabling Scottish Ministers to introduce regulations specifying whether a kind of animal is, or is not, to be regarded as wild. [19]

6.5. The Explanatory Notes prepared by the Scottish Government to accompany the 2018 Act spell out the intention in greater detail:

‘ Section 2 provides a definition of "wild animal" for the purposes of the Act. A wild animal is an animal other than one which is of a kind that is commonly domesticated in the British Islands. The Act explains what it means for an animal to be "domesticated" to inform that definition. Where an animal is of a kind whose behaviour, life cycle or physiology has, over multiple generations, been changed through breeding or living conditions being controlled by humans, it is said to be domesticated for the purposes of the Act. Wild animals are those not commonly domesticated in the British Islands under that definition of "domesticated". Animals can be considered commonly domesticated in their country of origin although they are not of a kind commonly domesticated in the British Islands. Such animals would be "wild animals" under the Act. In this context, "British Islands" takes its meaning from the Interpretation Act 1978, and refers to the United Kingdom, the Channel Islands and the Isle of Man.

In addition, section 4 confers a power on the Scottish Ministers to specify, by regulations, a kind of animal that is to be regarded as wild, and a kind of animal that is not to be regarded as wild, for the purposes of the Act. This power will allow future detailed clarification of whether particular kinds of animals are or are not "wild animals". Given the general definition in section 2, which will mean in most cases it will be clear whether a kind of animal is wild or not, the power is expected to be used only in cases of doubt or where clarification would be deemed helpful. The distinction between kinds of animals which are wild and those of a kind commonly domesticated in the British Islands is not an immutable one, and there may be particular examples where it is unclear into which category an animal type falls . The power is therefore expected to be used to provide clarity in difficult or borderline cases where there is uncertainty to ensure circus operators know what kinds of animals may or may not be used in travelling circuses in order to avoid committing an offence. Regulations under this power are subject to the affirmative procedure.

Where regulations under section 4 are made specifying a kind of animal as wild, such regulations are without prejudice to the generality of the definition in section 2. That means regulations cannot have an effect so as to reduce the range of animal types caught by the generality of the definition. It also means that section 2 could have a determinative effect as regards the status of a kind of animal specified in regulations as wild. For example, if circumstances relating to a specified kind of animal change, it may be that that type of animal is regarded as not wild (or no longer wild) for the purposes of the Act, despite regulations having been made specifying that animals of that kind are to be treated as wild for those purposes. That will be a question of fact in each case, considered against the definition in section 2. ’ [20]

7. Meaning of the term ‘use a wild animal’

7.1. The Bill presently provides that a circus operator uses a wild animal in a travelling circus if the animal performs or is exhibited as part of the circus. It is submitted that training should be included in this list. However, if the intention underlying the legislation is a complete ban on wild animals being associated or involved with travelling circuses, it is submitted that it would be desirable to adopt appropriate wording to make this explicit.

May 2019