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However, over the years, I have noticed that because of improvements in medicine, surgery, anaesthesia and so on, they have gradually disappeared. I suspect that the docking of dogs’ tails will do the same. One reason why it might disappear is that an increasing number of veterinary surgeons are unwilling to undertaking docking, largely because they believe it to be an unnecessary mutilation if it is done only for cosmetic purposes. Where it is necessary for therapeutic purposes, it is an entirely different matter.

One would not wish to object to this order because that might cause considerable trouble and lead to docking for cosmetic purposes, which I am not in favour of. I thank the Minister for his explanation and wish this part of the Animal Welfare Act a fair passage.

Baroness Byford: My Lords, I thank the Minister for his work since the regulations were withdrawn and for having been able to meet members of his team twice. I also thank him for his lengthy introduction, which was very helpful. Anybody looking back at this legislation will have a chance to look at Hansard and seek clarification on one or two issues that they might be concerned with. I do not propose to go into the detail as the Minister has done that and I do not intend to repeat it. I should declare that I am an honorary associate member of the Royal College of Veterinary Surgeons and the BVA. The noble Countess, Lady Mar, covered the reasons why she is now quite happy since she clarified the issue with the royal college. I am more than happy to accept the regulations and I thank the Minister for his time in going into detail.

I would like to support these statutory instruments, but I would also like to record my concerns, which, as

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the Minister will remember, I expressed in Committee on the Bill. My gripe—and I put down in bold English that it is a gripe—is that the way that we deal with Bills that come to Parliament in a skeleton form and have to be followed up by regulation at some time in future is not a satisfactory way of conducting business. Had we debated the Bill more fully in Committee, some of these issues would have been ironed out and we would not have had to return to them later. That does not affect just this Bill; it also affects many other Bills that the Government bring forward where we have to wait for regulations later on. When we seek clarification, the Minister has to try to clarify the Government’s position, but, as he knows very well, we cannot change orders, unless they are defective, and so we have to accept orders that we might have tried to change while the Bill had its passage.

We support the proposals in the Docking of Working Dogs’ Tails (England) Regulations. As the Minister indicated, we expect them to reduce the number of dogs who have their tails docked for cosmetic reasons by 90 per cent. I do not agree with docking, and I am delighted to see that it will be going. We are also pleased that veterinarians will have discretion about whether to dock dogs’ tails. That is something that the noble Lord, Lord Soulsby of Swaffham Prior, was particularly keen to raise tonight. The switch of this business from last night, when he could not have been with us, to tonight, when he could be with us, was a bonus because it is good to have somebody who dealt with these matters on a daily basis giving his expertise.

I would like to ask two further questions. First, I return to a subject I raised before—the desirability, where possible, of microchipping puppies at the time of docking. If possible, it is much wiser to microchip then rather than having puppies brought back at a later stage to be microchipped. Secondly, will the Minister put on the record and clarify the position of, say, an English-based family with a working dog or working puppies, which were perfectly legitimately docked in this country, who move to Scotland and find themselves in an obviously different environment. I think that the Minister indicated that they will have to keep some sort of proof to be able to say that the dog was docked in England and had a certificate. Presumably that certificate will have to remain with them until they die.

I should check whether, under the regulations in Scotland, it will be an offence to bring a dog over the Border from Scotland into England to have it deliberately docked. The one issue the Minister did not touch on tonight was what happens on those farms which border both regions. How does one decide whether that holding is in England and therefore English rules apply, or whether it is in Scotland? At the moment, that is not clear to me.

What about somebody who, for example, lives at weekends in Scotland but works in England and brings their dogs with them? I did not manage to find the answer to that issue on reading of the provision. The Minister earlier said, quite rightly, that shows will in time reflect whether dogs have been docked in the permitted way. I suspect that it will take a few years

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before that works through. Even at Crufts some of the dogs are older rather than necessarily being young ones.

The Minister will have received representations, particularly from the RSPCA, suggesting that Section 23 of the Act, to which other noble Lords have referred, does not, in its view, solve the problem that has been raised already. The society does not believe that the provision has enough strength. A magistrate must be persuaded that there are reasonable grounds for granting a warrant. How can he be persuaded of that if there is no way of knowing whether evidence of an offence will be present on the premises, or may not even exist? Again, I would be grateful for more clarification on that angle from the Minister when he responds.

I make no comment on the whole question of fines and imprisonment. But I pick up from my colleagues who have asked that this legislation should be reviewed. The noble Countess, Lady Mar, asked for two years. I think that she may be too early. I would be quite happy with a three to five-year period, but no longer than five. We really must revisit that.

I turn to the mutilations order. I raised issues which I thought were important about the desirability to use anaesthetics more often than is laid down in these regulations. For cattle and goats anaesthetics have to be given for castration after two months have expired, whereas for sheep the time lapse is three months. My noble friend the Duke of Montrose has spoken about his interest and work with sheep. Why is there that time lapse? Is it because the sheep are up in the hills and therefore it is more difficult to get them down? Looking at the discussions on this in another place, I understand that the Farm Animal Welfare Council is examining the whole question of sheep castration. It is due to report shortly. When is that likely to be?

I raise one further issue, which has been raised with me again today. As the Minister knows, it is a difficult operation to make sure that ear tags stay on sheep’s ears. It is a welfare problem. I believe that we have a derogation that allows only one ear tag in a sheep’s ear, but that we may well have to go back to having two. Again, as we are treating this as a mutilation, I wonder whether the Minister might comment on that aspect, as it is a continuing problem to try to ensure that two ear tags remain firmly on the ears of sheep. As the Minister will know, they tend to go rubbing in hedges and the ear tags become loose.

In principle, we support the regulations. I will, if I may, go back to where I started and thank the Minister and his team for going through them so clearly with us to enable us to reach this stage in the House tonight.

10.45 pm

Lord Rooker: My Lords, I am most grateful for the contributions that have been made tonight. I shall answer some of the queries tonight, and will write to noble Lords on those that I cannot answer tonight.

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The noble Countess mentioned a review, but this is a statutory instrument, which brings me back to the point made by the noble Baroness, Lady Byford, about putting all this into primary legislation. If we rely on primary legislation, knowing the pressure on parliamentary time, nothing will happen. A change may be required, but this will not be top of the slot. Regulations deal with the nitty-gritty so that one can adjust to changing circumstances. If things do not work out as one intended, one can at least change the regulations more easily than looking for parliamentary time to make primary legislation. It is simply not a runner to say that everything should be done by a Bill. Notwithstanding that, I have no doubt that the legislation will be under constant review by the RSPCA and other animal welfare groups and in Parliamentary Questions. No action on prosecutions is expected shortly. We may get nothing for 12 months because various situations would have to arise. Undoubtedly from the RSPCA’s point of view, the first body to bring a prosecution on this issue has to get it right and win it. One cannot afford to have any doubt here, so being sure of the circumstances and getting the evidence right is obviously essential. This is a very sensitive area.

I have made it clear that Defra and Ministers will take an active interest in the enforcement provisions of the legislation, which are the key area in a way. Indeed, if concerns continue to be expressed and there is evidence to support those concerns, we will have the matter reviewed. There is no doubt about that. I have no doubt that the Select Committee in the other place will want to have a review. This is of great interest to both Houses because it is of great interest to the public. No doubt it is also of interest to Defra and the Home Affairs Committee, because there is a slight connection there.

Schedule 2 contains narrow exemptions for working dogs for,

“armed forces identification; emergency rescue identification; police identification; prison service identification; HMRC identification”.

All those bodies are scrutinised in one way or another by Select Committees in the other place, so if there is any evidence that things are not working out as planned, there is ample opportunity for Parliament to take an active interest. I would imagine that, in the normal course of events and in the flow of the way in which the Act is implemented, there will be opportunities for review, as the noble Countess said. I cannot guarantee a review of an independent committee, but if this has not been given proper parliamentary scrutiny in three to four years, with the Government and outside bodies giving evidence, I will eat my hat. I would encourage Select Committees to do that. After all, the scrutiny side of the process of legislation is just as important as the executive side. As noble Lords have said, there are some difficulties, and I do not have all the answers. For example, tail-docking tourism, as I think it was described, across the Border is clearly a potential difficulty.

The noble Baroness, Lady Byford, asked about the desirability of microchipping. I made the point that

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our preference would be to microchip when docking takes place. However, because the Government have discussed this matter with outside bodies, it was put to us that the size of some puppies is such that microchipping would not be appropriate at that time. But the safeguards are there. The certificate should be signed by the vet who did the docking, although the same vet does not have to do the microchipping. Vets have total discretion. They can say, “No, we just don’t do tail docking here. Don’t ask us: refusal offends”. They do not have to give a reason. From that point of view, vets are in control.

On the English family travelling to Scotland—whether to live or on holiday—presumably the dog would have been lawfully docked, so there would not be an offence under Scottish law. However, they would have to maintain that certificate and must be able to show it. Otherwise, they would be subject to potential prosecution.

Holdings that straddle the Border will depend on the location of the farmhouse. This reminds me of single farm payments where many farms straddle the Border and someone has to make a decision. The holding can straddle the border, but I do not think any farmhouses have an address that straddles the Border. However, that is the case in Northern Ireland. Some farmhouses quite deliberately straddle the border, for reasons that are nothing to do with this. On the residency of the owner, having been in the other place, my argument would be, “Who is your MP? You have only got one and there is no argument about who it is. You are on a boundary and you have an address”. Quite clearly, there is a domiciled address and there cannot be any argument. That should satisfy that question. So there are issues relating to that.

The Farm Animal Welfare Council advises and assists the Government, but I do not know when it will report. The noble Baroness, Lady Byford, also mentioned ear-tagging, which I fully understand. I visit many farms and I get my ears bent about the double-tagging of cattle, as I will tomorrow when I visit farms in Gloucestershire. There are serious problems, which I understand. The large plastic tags get snagged, but they are readable at a distance, which can be quite important because there can be tragedies—I read about one earlier today. Sheep are no different—they get to places that cattle do not—and there are serious difficulties about snagging in fences. This is not just about UK law, we are also dealing with EU legislation. This is also part of the traceability of the food chain. It is not done for the sake of it. For sheep and cattle, it is part of traceability of where the animals have been and what holdings they have been on. If difficulties arise, as they have in the past, at least we can trace them.

The noble Duke asked about goats and sheep, but I may not have all the answers. The dehorning of adult sheep must be carried out by a veterinary surgeon as potential problems may require veterinary knowledge. However, the removal of the insensitive tip of an ingrowing horn may be done by a layman as that is not classed as mutilation, so there are some areas

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there where work can be carried out. So there are some areas where work can be carried out.

Further to an EC directive, the docking of piglets’ tails is not permitted as a routine procedure in the UK. It can be done only where there is evidence that injuries to other pigs’ tails has occurred as a result of tail biting. The procedure cannot be carried out unless other measures to improve the environment or management systems have been taken in an attempt to prevent the tail biting in the first place. We would like to see a reduction of tail docking. These regulations will reduce tail-docking of dogs, there is no question about that, but we want also to see a reduction of the practice in pigs. However, it is a complex area and many factors are involved. That is why the Pig Welfare Code gives detailed advice to farmers on actions they can take that may help to reduce the level of tail biting.

The noble Baroness, Lady Miller, asked about the definition of “hygienic conditions”. This is a generally understood term so there is no problem with it. If necessary it would be interpreted by a court because that is where the issue would arise. It would also be for the vet and others bringing a prosecution to go to court and explain the situation with photographs and descriptions. However, it is a generally understood term that the courts have dealt with before.

I was not sure whether the noble Baroness was being light-hearted about contraception and the pig breeding programme. There is a serious point here. The draft is okay and the word “not” is not missing. It relates to a conservation breeding programme, and contraception can be a crucial part of it. It is used to avoid genetic over-representation. There are issues here and I understand why the noble Baroness raised the point.

The Duke of Montrose: My Lords, I am grateful to the noble Lord for giving way. Can he answer the other question I put to him? It may be asking rather a lot, but can he explain the words,

“any other person permitted to carry out the procedure”

under the two Veterinary Surgeons Acts? We are all aware that large animal practices are in great difficulty because vets do not have a lot of work. However, it would turn the whole thing on its head if a vet had to be called out for every castration and tail docking, which is what the wording suggests.

Lord Rooker: My Lords, I will see if there is an answer, but if not I shall reply to the noble Duke by letter.

The noble Baroness, Lady Miller, asked about rubber ringing either by vets or others. This will continue to be carried out by those permitted to do so under the Veterinary Surgeons Act 1966 and the orders under that legislation. That, I hope, answers her question.

I am grateful to see the noble Lord, Lord Soulsby, and I appreciate that he is here tonight. I was here last night, but that is why we are here at this time tonight. I welcome his contribution. I always say to Members of the other place that in this House you are among

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practitioners and professionals with a mass of expertise that, by definition, elected Members of Parliament cannot have. I know that the noble Lord has made a major contribution to the legislation as it has gone through. He is right to say that over a period of years docking will probably diminish. It is now being severely restricted through the definition of the kind of dogs that may be docked and the kind of people who can take a dog to a vet in the first place. The pressure is moving in one direction, and that is for the reduction of tail docking. I do not say “suck it and see”, but it will be a test of how practical and effective the regulations are when cases arise. That goes with what I was saying about the review of the enforcement procedures.

Section 23(1) of the Animal Welfare Act 2006 provides that, on application by a policeman or an inspector, a warrant may be issued by a magistrate to search for evidence of an offence as long as there are sufficient grounds for believing that an offence has been committed and that evidence may be found on the premises concerned. The general application of common sense and expertise by the police when making an application for warrants is a factor.

That is probably what happens in other walks of life—there is a feeling that something has taken place, and someone can make a reasonable commonsense case to the prosecuting authorities or the investigating authorities. The police can get a warrant and make a case to a magistrate, but it cannot just be done as a fishing expedition. I am a non-lawyer, but I can say that with absolute certainty. There has to be a scintilla of a commonsense reason why they are asking for the warrant, but they can get a warrant to search for the evidence. They do not have to have the evidence, but they have to have reasonable grounds for believing or being informed that the evidence may be at a particular premises. They would be able to go to the magistrate on the basis that it could not be challenged, and a reasonable person would grant them a warrant to do the search.

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If I have missed anything, I will certainly come back and send a brief note. I am always reluctant to do that, as it is much better that information goes on the record for people who read our proceedings. I probably do not have the answer for the noble Duke, but time is up. I have finished, and I cannot keep going any longer. I am grateful for the support for the regulations. I am a Johnny-come-lately on this issue, as noble Lords know; the legislation had gone through, and I carried the very end of it for colleagues in Defra. I know Ben Bradshaw, the animal welfare Minister, will be delighted at the passage of these regulations in both Houses today.

On Question, Motion agreed to.

Mutilations (Permitted Procedures) (England) Regulations 2007

The Minister of State, Department for Environment, Food and Rural Affairs (Lord Rooker): My Lords, I beg to move the second Motion standing in my name on the Order Paper.

Moved, That the draft regulations laid before the House on 8 February be approved. 9th Report from the Statutory Instruments Committee.—(Lord Rooker.)

On Question, Motion agreed to.

Welfare of Animals (Miscellaneous Revocations) (England) Regulations 2007

The Minister of State, Department for Environment, Food and Rural Affairs (Lord Rooker): My Lords, I beg to move the third Motion standing in my name on the Order Paper.

Moved, That the draft regulations laid before the House on 8 February be approved. 9th Report from the Statutory Instruments Committee.—(Lord Rooker.)

On Question, Motion agreed to.

House adjourned at 11.02 pm.

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