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The amendment does not cover my next point, although there is no real reason why it should in the context of what the noble Baroness said. I am not sure whether raising pheasants and partridge in cages is exclusively linked to cost, although cost is clearly a factor, or whether it is linked to the necessity of some of the shoots I am describing to maximise the number of guns, which could produce some results for the

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man or woman who is shooting. I read a suggestion from the shooting fraternity that, according to acreage and the rest of it, there should be a limit on the number of guns allowed so that the shoot does not simply provide live shooting practice.

The Earl of Onslow: My Lords, I declare an enormous interest in that I run a shoot 10 days a year, and we put down quite a large number of birds. The last outbreak of Newcastle disease was about a mile and a half from where I live. I am pretty certain, although I would not go to the stake for it, that the outbreak occurred after six week-old poults had been bought because, if I remember rightly, it was in July. It was dealt with immensely efficiently by the landowner, his keeper and Defra, and the disease did not spread. Well done Defra—one should give credit where it is due.

I have heard the story about pheasants being buried; it has been around for a very long time. I am pretty certain it is an urban myth. Someone says, “I wonder if they do” and by teatime it has become, “I know the chap who did it”. I have heard that story for 10 years now and have seen no evidence, although I know you cannot prove a negative.

It is certainly true that the price of pheasants has gone through the floor. I took over my father’s shoot 30 years ago; we got £1 for each pheasant in the middle of the season then, and we still get £1 each, if we are lucky, in the middle of the season. That is due to the fact that the bags have increased, as the noble Lord says. But I think that the majority of people rear their pheasants as I do. The laying pens are a big area, and bushes are brought in for the birds to hide under. There is protection from, funnily enough, sparrow hawks; it is perfectly legal, they are scared away with netting. It is in everybody’s interests that the laying pens are as decently run as possible and free of disease.

If there is proved to be a need for regulations for people using battery methods, I can see nothing wrong with that. If we want to go on running shoots, we have to do it properly and in a way that everybody can approve. If the need is shown to be there, I see nothing wrong in having regulations for minimum standards.

Lord Kimball: My Lords, I should declare an interest as the deputy president of the Countryside Alliance. I shall declare an interest also as the first chairman of the British Greyhound Racing Fund when we come to consider those matters.

This amendment is quite unnecessary. Defra is already drawing up a code which covers the rearing of game birds. It will take advice from the Game Conservancy Trust. I have great confidence that it will come up with the right answer. However, this amendment is quite unnecessary and comes at the wrong time. It will make it harder for Defra to come up with the right solution.

Lord Rooker: My Lords, this is another area in which I can report modest progress to the House. Under the previous timetable for regulations and codes, no commitment whatever was made for game birds,

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whereas a commitment now exists for a code of practice by the end of 2009. That is a direct result of pressure from your Lordships’ Grand Committee.

I have not seen the photographs to which my noble friend Lord Christopher referred, so I do not know whether, as the noble Earl said, it is an urban myth—it could well be so. An astonishing number of birds is released each year. The figure is between 20 million and 35 million. Around 40 per cent of pheasants for rearing come from France as eggs or day-old chicks. There is a small trade in six-to-eight-week-old poults. Approximately 90 per cent of redleg partridge are imported, the majority from France, but some also from Spain and Poland. The question of rearing practices for birds released as game birds therefore goes outside the country. I hope that my update is to the noble Baroness’s satisfaction: the Government have looked at this issue closely since Grand Committee.

We are sympathetic towards the purpose of the amendment—there is no question about that—but it is a mistake to insert the new clause simply because it is too inflexible. We intend to introduce a code of practice for game bird-rearing within the next two years, but to require it to be established within 18 months of the enactment of the Bill will certainly pre-empt the results of the game bird research which has been commissioned by Defra to inform the code. We want the code to be based on evidence.

There is little scientific evidence about what is required for good game bird welfare, including minimum space requirements, but the Game Conservancy Trust is conducting research into the use of certain practices as management tools. As the noble Earl, Lord Peel, indicated in Grand Committee, the Farm Animal Welfare Council intends to study the breeding and rearing of game birds, including the use of the raised laying units to which reference was made. It will report back to us in the summer of 2008. Those results will be far too close to the 18-month deadline set by the amendment to enable us to draft the code.

In some ways, the noble Earl, Lord Onslow, hit the nail on the head. The code is needed. While there might be a shortage of scientific evidence, a lot of good practical knowledge exists about welfare in rearing game birds. We are talking about a scale of release of between 20 million and 35 million and a large expansion in production, as clearly indicated by the price going through the floor. Game birds are more widely available in butchers’ shops than was the case when most of us were a lot younger. Certainly, people on my side of the road could not afford them.

The Earl of Onslow: You just nicked them.

Lord Rooker: My Lords, I shall ignore that remark. We intend to set up a working group before the end of the year, with the objective of producing the code in 2008. We hope that these two pieces of work—the working group and the work from the Farm Animal Welfare Council—will inform the overall code to your Lordships’ satisfaction. We do not want to pre-empt it.

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I realise that the amendment has two parts—but the thing that kills the amendment off is the prescriptive detail of the timetable, which would completely wreck what we propose to do with the necessary outside interests to bring matters to a satisfactory conclusion.

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Baroness Miller of Chilthorne Domer: My Lords, I thank the Minister for that overall very positive reply. Since the start of the Bill, as he has explained, Defra has concentrated on this issue, thought much further about it and now has a date to propose. However, he did not answer my specific question whether the Farm Animal Welfare Council was the suitable place to discuss this matter. I do not believe that pheasants fall into the category of farm animals—

Lord Rooker: My Lords, I realise that in some ways I did not answer any of the noble Baroness’s questions. I have two specific answers. First, we will consider all the information available, including the Danish legislation to which she referred. Secondly, the Newcastle disease occurred in pheasant poults being reared for release and not in laying birds. The birds were already in release pens when the presence of the disease was recognised. I think that that confirms what the noble Earl said.

I thought that I had answered the point about the Farm Animal Welfare Council. There are two tracks for dealing with this: the council is working on the issue, while we are setting up a committee to help to draft and inform the code before the end of the year.

Baroness Miller of Chilthorne Domer: My Lords, I thank the Minister. Overall, I believe that we have reached a very positive place with the amendment and the Minister’s answer to it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 [Duty of person responsible for animal to ensure welfare]:

Baroness Miller of Chilthorne Domer moved Amendment No. 7:

The noble Baroness said: My Lords, I apologise that my three amendments have come in a row. I hope your Lordships are not bored with hearing my voice yet.

This amendment goes to the very heart of how we believe the Bill will either be a success and produce really adequate tools when the Government produce the various codes on which it will rely or be inadequately drafted and therefore not able to do that.

The amendment seeks further to define under Clause 9 the sort of animal that is being dealt with when, for example, taking into account the need for a suitable environment. In debating Amendment No. A1 we made passing reference to degrees of domestication. Where the animal is a long-time domestic companion

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to man, such as a cat or a dog, it is fairly easy to judge whether its needs are met against all the criteria in the clause. We are used to their needs, which have been known over time, and it will be clear when somebody is failing to provide a suitable diet or environment, for example. However, at the other end of the spectrum are those animals that have never fallen within the definition of “domesticated” and might be wild, caught animals. We debated in Committee the issues of wild, caught birds and of primates. The needs of those creatures will be vastly different.

In Committee the Minister did not seem to accept the need for any differentiation. Having thought about the issue and worked on it over time, I believe much more strongly than I did that this amendment is absolutely essential to the adequate functioning of the Bill. My amendment will ensure that in the codes for non-domesticated species that are kept as pets—we have not been offered codes for them in the Bill—the fact that they are essentially wild or semi-domesticated animals will have to be taken into account.

An episode that highlighted this vital distinction for me was when the Minister’s team of advisers was debating this issue with, I believe, the RSPCA. One of the team commented that there was no difference in welfare needs between domesticated horses and zebras. Self-evidently, there is a difference. Zebras have never been used to domestication of any sort. They have not been selected for generations to be comfortable with human company. Their needs under the five freedoms, especially the need to exhibit natural behaviours, will therefore be much more difficult to satisfy in a domestic setting than, say, those of a horse.

My amendment does not say that domestication should be the only consideration for welfare needs—far from it. But there is a growing body of scientific backing to suggest that the needs of non-domesticated species will be different in type and/or scale from those of domesticated animals. For example, in 2002, data produced by Mr Edward Price pointed to the conclusion that the most important effect of domestication on behaviour is reduced emotional reactivity or responsiveness to fear-invoking stimuli—that is in scientific-speak. Evidently, if one has small children banging their drums, the family dog is unlikely to react because it is probably pretty used to it. However, if a fairly fragile animal has recently been imported into the household from essentially a wild background, it certainly will react. It will not have the room to flee from what it finds a frightening situation, therefore the requirement under Clause 9 to provide “a suitable environment” will not be met.

The needs of African grey parrots are substantially greater than those of most domesticated species; for example, budgerigars. A parrot in captivity is routinely denied two of its most fundamental natural behaviours: flying long distances and socialisation. Research by Engbretson published this year by the Universities Federation for Animal Welfare suggests that denying a bird vocal, visual and physical contact with its conspecifics can contribute to abnormal behaviour and stereotypy. These birds normally congregate in large flocks.

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You can see that I am no scientist, but the point I am getting at is that no amount of human contact can make up for the fact that these animals are being denied their normal behaviour, and therefore their needs would be unlikely to be met under Clause 9 if you could take into account the degree of domestication, because it is a key concept in assessing suitability of environment. Indeed, the concept of domestication has very helpfully already been detailed in the guidance notes to the 2002 amendment to the Zoo Licensing Act 1981, so the Government have already considered the question of degree. Five categories are set out, ranging from true domestic breeds to true wild species. The work has been done on this. It is not as if the Government have to start from scratch; they have definitions they can choose to use.

The Bill is not an exercise in artistic draftsmanship, and those who come to interpret it really need to be able to appreciate and put into practice the difference in the standard of care required by best practice to cater particularly for non-domesticated species. Noble Lords who were here for the discussion in Committee on the keeping of primates as pets, for example, will have appreciated it. I will not rehearse any of the arguments I used then, because of course we are on Report. All I am asking the Government to do now is to recognise that there will have to be a very careful interpretation of the Bill and to protect those most vulnerable animals that I believe they are as interested in protecting as I am. I beg to move.

Baroness Byford: My Lords, I also spoke on this issue in Committee, when we discussed in depth caught wild birds and primates. While I have sympathy with the ethos behind the amendment, it seems to me that paragraphs (a),(b),(c),(d) and (e) of Clause 9(2) would cover the matter. Surely anybody having to decide on the matter would know very well that a primate’s needs and a parrot’s needs are very different from those of other animals which are normally domesticated. The noble Baroness shakes her head. I shall be interested to hear what the Minister has to say. I still have strong reservations about caught wild birds, which are not dealt with specifically here but, unless the Minister tells me otherwise, I should have thought that paragraphs (a) to (e) covered the matter.

Lord Rooker: My Lords, I confirm that that is the case. I assure the noble Baroness that we consider the matter to be covered by the Bill. As we have not convinced the noble Baroness, Lady Miller of Chilthorne Domer, before I use my set piece I shall address the seductive point that she raised regarding the Zoo Licensing Act, on which I have taken advice.

The noble Baroness said that the Zoo Licensing Act provided a list of domesticated and non-domesticated animals. This list, however, is not an authoritative statement. The guidance is explicit—the list is the department’s informal view of what animals might be classed as wild animals for the purpose of the Zoo Licensing Act 1981 (as amended). Under this legislation “wild animals” means animals not normally domesticated in Great Britain. It was felt

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necessary to provide this guidance to aid authorities in determining what types of establishment might require a zoo licence under the 1981 Act. For example, a collection of animals consisting entirely of types normally domesticated in Great Britain is not a zoo within the meaning of the Act. This list was not drawn up to highlight welfare differences between the species mentioned. Indeed, the Secretary of State’s Standards of Modern Zoo Practice guidance is equally clear that the welfare needs of animals in zoos can be met by adhering to the five freedoms drawn up for livestock by the Farm Animal Welfare Council, which are broadly reflected in the five welfare needs as highlighted in this clause.

The amendment would add a further paragraph to Clause 9. Its central aim is to instruct a court that in considering whether a welfare offence has been committed it should have regard to the degree of domestication of an animal. We do not think that the amendment is necessary because these issues will be dealt with by a court as appropriate under the legislation as drafted.

The special needs of some animals kept by man were discussed at length in Grand Committee. We were all agreed that different animals have different needs and therefore required different kinds and degrees of care. We also debated amendments that sought to instruct the courts to take into account whether an animal was non-domesticated. I confirm to one noble Baroness and reassure the other that whether an animal is of a kind commonly regarded as domesticated or non-domesticated will be an inherent consideration in ascertaining what its needs are under Clause 9(2), for the purpose of determining whether its needs have been met. It is entirely appropriate for a court to take that into account.

4.15 pm

It would be unacceptable to seek to ascertain a non-domesticated animal’s needs without having regard to the fact that they are of a species that is not commonly domesticated in the British islands, where this is relevant. However, it will not always be relevant, and it could therefore be a mistake to require a court always to have regard to it. For example, if a prosecution was brought because an owner failed to provide water for their animal, the amendment would require the degree of domestication of the animal to be taken into account, even though that is not relevant. All animals need water, and a failure to provide water for an animal for which you are responsible would breach the offence, whether or not the animal is domesticated. To this extent, the amendment could cause confusion and legally be a problem. I assure the House that the clause as drafted does allow the courts to contemplate “degrees of domestication”—it is for the court to decide—as one of the circumstances in deciding whether the offence has been breached.

By highlighting the degree of domestication, the amendment risks narrowing the clause by implication, because that factor and not others is mentioned. There is potentially a really serious problem in limiting the clause in this way. It should also not be assumed that non-domesticated species necessarily have more complex

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needs than domesticated species; they are clearly different. The regulations and codes of practice that we produce will provide greater clarity about what is required for particular types of animal, including non-domesticated species. The codes will provide, if necessary, any additional guidance that may be needed to ensure the welfare of non-domesticated animals.

If necessary, there is a power in Clause 12 to make regulations setting specific requirements with regard to a particular animal’s needs, so it is covered in the Bill in a double lock. Clause 9 makes it implicit and inherent that the needs will be taken into account by the courts. In Clause 12, there is the power to make regulations setting a specific requirement with regard to a particular animal’s needs. What exactly constitutes the appropriate welfare standard will vary according to the circumstances, and the Bill already requires the courts to consider all the circumstances.

After careful consideration and scrutiny by Parliament, we have formulated a clause that is as flexible and as capable as possible of addressing the needs of all types of animals—we are concerned about them all—for which a person may be responsible in the many different circumstances that may arise. The flexibility is needed for the courts to do their job so that, if you like, those who wish not to treat animals properly cannot find legalistic loopholes in a clause that is drafted a bit too narrowly because it does not allow the courts to look at all the circumstances. On that basis, I sincerely urge the noble Baroness to withdraw her amendment.

Baroness Miller of Chilthorne Domer: My Lords, naturally, I am disappointed by the Minister’s reply. I took very much to heart last year the words of one of his predecessors at Defra, Mr Jim Knight, who in talking about the importation of wild birds, said that the Government needed to “raise the bar” on the standards that had to be met. The Minister has given the perhaps slightly disingenuous example of whether water was supplied. The question of a suitable environment or the need to exhibit normal behaviour patterns would have been a much fairer example with which to reply. The response of the noble Baroness, Lady Byford, surprises me, because her colleague in another place, Mr Jim Paice, has been extremely vociferous about the issue of wild caught birds, and he would have felt very strongly about supporting the spirit of the amendment.

Of course, the Minister may say that the way in which the amendment is drafted would weaken the clause, but it was open to him to bring forward something that his experts might have found more suitable. I think he is saying that he finds the whole concept unnecessary and unsuitable.

Lord Rooker: No, my Lords, that is an unfair description of what I said and is not accurate. We have drafted the clause to meet the widest number of circumstances, so that a court—I repeat, a court—can take into account all the relevant circumstances of the animal, whatever its level of domestication. That is important. Anything that narrowed the clause would diminish that; so her description was the opposite of the case that I was making.

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