UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 1032-x
House of COMMONS
MINUTES OF EVIDENCE
ENVIRONMENT, FOOD AND RURAL AFFAIRS COMMITTEE
(SUB-COMMITTEE ON THE DRAFT ANIMAL WELFARE BILL)
DRAFT ANIMAL WELFARE BILL
Wednesday 13 October 2004
MR DAVID FURSDON, MR CHRISTOPHER PRICE, MR JOHN JACKSON
and MR GRAHAM DOWNING
MR PETER STEVENSON, MR DOUGLAS BATCHELOR, MR MIKE HOBDAY
and MS REBECCA SEDEN
MS ANNE KASICA, MR ERNEST VINE, MR DAVID ARTHUR,
MR CHRISTOPHER DAY, MR JONATHAN CAIRNS and MS JOAN JACKSON
Evidence heard in Public Questions 770 - 912
USE OF THE TRANSCRIPT
This is an uncorrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.
Any public use of, or reference to, the contents should make clear that neither witnesses nor Members have had the opportunity to correct the record. The transcript is not yet an approved formal record of these proceedings.
Members who receive this for the purpose of correcting questions addressed by them to witnesses are asked to send corrections to the Committee Assistant.
Prospective witnesses may receive this in preparation for any written or oral evidence they may in due course give to the Committee.
Taken before the Environment, Food and Rural Affairs Committee: Sub-Committee on the draft Animal Welfare Bill
on Wednesday 13 October 2004
Mr Michael Jack, in the Chair
Ms Candy Atherton
Mr Colin Breed
Mr Mark Lazarowicz
Mr David Lepper
Mr Bill Wiggin
Memoranda submitted by Country Land and Business Association
and Countryside Alliance
Examination of Witnesses
Witnesses: Mr David Fursdon, Deputy President, and Mr Christopher Price, CLA Public Law Adviser, Country Land and Business Association, Mr John Jackson, Chairman, and Mr Graham Downing, Member, Countryside Alliance, examined.
Q770 Chairman: Can everyone take their seats for a further evidence session by the Committee on the Draft Animal Welfare Bill? We are delighted to have our witnesses this afternoon, from the Countryside Alliance, Mr John Jackson, the Chairman, and Mr Graham Downing, who is described as a "Member". He has the shortest title we have had before us on this. From the Country Land and Business Association, Mr David Fursdon, the Deputy President, and Mr Christopher Price, the CLA's Public Law Adviser. I always get worried when people bring their lawyers with them; we wonder what they are going to say! Anyway, you are all very welcome. Can I formally thank you for your written evidence; it was very helpful. We have started off just about every session by asking each of our respective witnesses a very simple and straightforward question, because both of your sets of evidence are commendable for the scope of the issues that you have raised, but, if we had two remember just one thing that if you do favour the Bill you would like us not to forget in favour of it and one thing that you are passionately opposed or concerned about in the Bill that also you would not like us to forget ‑ and I say that against a background that we have probably had somewhere in the region of over 200 submissions to this inquiry and there are key things that we do not want to forget. So, Mr Jackson, would you like to start our proceedings by answering our simple question?
Mr Jackson: Yes, certainly. I can be very brief. I think we have already said that we very much welcome this Bill. The one aspect, very positive aspect, which I think we would like to pick out is that the Bill not only usefully makes use of the concept of unnecessary suffering, which has been around for a long time and is well understood by the courts, but has also introduced the concept of a duty of care. We think that is useful and is positive, and we also think that when this House actually ever gets round to dealing with the law relating to the welfare of wild animals that is a concept which could usefully be borne in mind. On the negative side, and it is not all negative, there is one aspect which has been concerning us and which Mr Downing here has paid a lot of attention to, and that is the question of the tail docking of working dogs. Those are the only two points, I think, that I want to make.
Q771 Chairman: Mr Fursdon?
Mr Fursdon: Thank you. It is always great going second if the person in front of you takes one of the points that you were going to make. I was, I suppose, going to say that unnecessary suffering is something we are pleased to see in there and we welcome the Bill and the principles behind it, and, as somebody who farms, I would say that the principles of animal welfare and good and profitable farming in general terms go hand in hand together. Perhaps not quite as far as my wife putting hot water bottles under lambing ewes, but nearly as far as that. On the other side, however, the particular concern, I think, that we have is to maintain clarity and objectivity in this Bill, and there are areas where there is a danger that that might be clouded somewhat. I suppose an example of that is expressions such as "likely to cause unnecessary suffering". I think we recognise that a lot of these judgments are going to be made in the heat of the moment where an issue has arisen and any judgments that are made at that point have to be clear and too much opportunity for differing interpretations is going to be unfortunate. Therefore we would like, I think, to see a clarity maintained and the way in which judgments are come to are done in as objective a way as possible.
Q772 Chairman: If there is a common theme that runs across both of your sets of evidence it deals, not unnaturally, with animals in the wild who may interact with human beings, and I put it in those terms because in the case of the Alliance clearly country sports and pursuits is a concern, and I think there is a parallel agenda as far as the CLBA is concerned. In your respective evidence there are, I suppose, what I call conjecture. You pose the question: "Does this apply to, for example, going out and shooting? If a pheasant falls to the ground and may not be fully dead at the time, are we going to be involved in animal welfare legislations as laid out on the Bill?" So, rather than me go through and try and pick out all of the various issues, as it is a common strand in both of your evidence, perhaps you would like to put before the Committee, in a few words, your main areas of concern: because I got the feeling that they were the kind of thing that lawyers would say, "Well, it might apply but we are not sure." So, if you are not sure, can you tell us why you are not sure? Mr Price, do you want to start on that?
Mr Price: Yes, to iterate, we do think this is a good Bill; it is a welcome consolidation and codification of the existing law. Much of what is being codified and consolidated really is the existing law. We know how the law works with farmed animals, with pet animals, and in the main it works pretty well. There are a few phrases which we would like to see updated and which have been in the Bill, and that is the reason why we have not commented particularly on those points because those points work. However, because the scope of this Bill is intended to be slightly wider than farmed and pet animals, we do have concerns about some of the wording that has been used and what the scope of that wording is, and that is why certainly we concentrated on that and, I assume, why the Alliance did as well. Some of the points, if I can just run through them, where these concerns arise... At various points there are references to "the keeper", the person who owns an animal. With animals which are pets or are farmed animals we know what "owner" is, but under the common law there is a rather nebulous antiquated concept of temporary or qualified rights of ownership so that, if you have wild animals that are on your land, you own them for certain purposes. What we are concerned about is that the obligations that apply to the owner under the legislation could also apply to someone who, perhaps without even knowing, has certain wild animals on their land: an example in the agricultural context would be rabbits. If you have young rabbits on your land - they are too young to move away of their own accord - under the common law you will be the owner of them under this qualified concept. There are separate laws which require the landowner to destroy or, if not reasonably practical, take action against rabbits, and it is that sort of area where we are seeing the conflict. It is the attempt to, quite understandably, apply existing conflicts to new situations which is causing these sorts of concerns.
Q773 Chairman: Do you say that in terms of, if you like, the natural lawyers caution in reading a Bill and saying, "Could it apply?", or, "In theory I think it could apply but in reality"... Yesterday we took evidence, for example, from those in local authorities who are going to be central to some of the enforcement provisions of the Bill, and they were playing down their role, saying, "We are not going to be chasing after everybody. We are looking to give guidance." The police who came from ACPO were saying, "Animal welfare: very low on the Richter scale. Cruelty: yes, that is top dollar. We will look at those." In other words, the enforcement were saying, "We will look at the really serious situations where somebody has animals on premises", or whatever, but I have to say, if you like, the interaction of man and so‑called wild animals and any potential cruelty issues did not even figure on the Richter scale.
Mr Price: You mentioned the police and local authorities. Both of those, we would accept, are responsible enforcement bodies. However, there is no limitation, for any practical purposes, on who can bring a prosecution under animal welfare law. Animal welfare law, as everyone knows, is a very emotive, very sensitive subject. It is far from unknown for people who, with the best will in the world, think they are trying to do something in the best interest of the animals to prosecute. There will be an awful lot of experimenting with the law because there is a significant sector of society who think that man's relationship with animals is not as it should be and will use test cases to try and change that. It is that sort of thing that we are concerned about. Much better to get certainty established at this stage than having years of uncertainty as it goes through the courts.
Q774 Chairman: Mr Jackson, do you want to comment on that agenda?
Mr Jackson: Briefly. I am also a lawyer. I rather agree with what Shakespeare said should be done to us. I think it is absolutely right that these comments‑‑
Q775 Chairman: Can you just remind me what Shakespeare did say? It might be quite interesting.
Mr Price: "First hang all the lawyers"!
Q776 Chairman: I see. I do not think we will be doing that this afternoon, but you carry on.
Mr Jackson: It is right, I think, that these comments are made because we are dealing with legislation which creates a new criminal offence. However, I think personally that one can afford to be a little bit relaxed and rely on the commonsense of the people who have the duty of enforcing, and of the courts, provided that the enforcers are clearly publicly accountable and do not stem from bodies which could be said to have an agenda of their own in respect of the particular matter being enforced.
Q777 Chairman: Do you want to be explicit on that? Are you expressing a concern about the RSPCA, because, in fairness, the RSPCA themselves have expressed concern to this Committee, if we have understood their evidence correctly, about their potential role as a prosecutor in terms of the proposed legislation. Is that really what you are trying to say?
Mr Jackson: I have considerable regard and respect for the RSPCA; I think, in general, it does a terrific job. However, on certain aspects of animal welfare they are effectively also a campaigning organisation. Law has to be respected, and it would be very unfortunate if enforcement was seen to be in the hands of people who could be deemed to have an interest. I say that as much in the interests of the RSPCA as anybody else.
Q778 Paddy Tipping: I think that is helpful, but can you just take us back to clause 44 of the Bill, because "inspectors" in clause 44 is a bit of a catch‑all, because anybody could be an inspector. Mr Price, you are a lawyer. We are not going to hang you! What is your understanding of clause 44?
Mr Price: You are quite right; it can be anyone. It will depend on the guidance introduced by the Secretary of State. One of the points we mentioned in our response to the consultation was that we would expect the guidance, or legislation - the guidance, that sets out who can be appointed an inspector to be subject to consultation and we would hope that there would be the, I suppose, commonsense to try and avoid a situation where an overtly campaigning organisation was not going to be given the powers of inspector over activities which it was known to campaign over. There must be something incongruous if the RSPCA are on the one hand saying that they are going to campaign to ban game shooting when they will be given the role to investigate it.
Q779 Paddy Tipping: I do not think that is the RSPCA's position.
Mr Price: The Director General has said that.
Q780 Paddy Tipping: I think you have got it wrong actually.
Mr Price: No, the Director General of the RSPCA has said that she is opposed to game shooting.
Q781 Paddy Tipping: I will accept that. Just sketch out for me ‑ and perhaps Mr Jackson will help us with it ‑ the kind of people that you would want to be inspectors. What is the ideal of inspector from your point of view?
Mr Jackson: I think I would say two things. Firstly, they should not plainly be people who are and can be seen to be knowledgeable. Secondly, and this is something we attach importance to, they should be publicly accountable. Public accountability is a very useful concept.
Mr Fursdon: Can I say, coming back to the point I made, equally the drafting of the Bill is important, because the tighter that that is drafted the less opportunity there is going to be for everyone to fall out about it.
Mr Downing: In order to clarify it, Christopher has raised the issue of game shooting and the RSPCA's attitude towards game shooting. We are entirely supportive of a proper inspection regime in relation to the Bill, but it must be a publicly accountable one and we would not, for example, have any difficulty if the State Veterinary Service were to inspect game farms. However, if an organisation which openly campaigned against game shooting were to be responsible for inspecting game farms, this could cause considerable difficulties for game farmers.
Q782 Paddy Tipping: I am a bit rusty because we have not talked about this Bill for three weeks. Are you telling me that you would not want the RSPCA designated as inspectors? Is that a no, no, for both?
Mr Price: I do not suppose that inspectors would be appointed on the basis of organisations; they would be appointed on the basis of individuals. We would have hoped the guidance would specify that someone who was active within a campaigning organisation would not be appointed. The point is both sides.
Mr Jackson: Yes, in their interests as much as in everybody else's interest.
Q783 Chairman: I would like to pursue with the Country Land and Business Association a point which occurs in paragraph one of your evidence under "cruelty", because you have welcomed the Bill in unequivocal terms and yet the second paragraph of paragraph one says, "We are concerned, though, at the proposal of extending the offence to acts and omissions which have not actually caused unnecessary suffering which are likely to do so." One of the merits of this measure as proposed is to use information in an anticipatory sense, that if you went on to a holding where, if you like, to my layman's eyes I could see things were not absolutely as they ought to be, and you might think there could be a problem, and then if a professional went in and said, "If they carry on like this these animal are going to die. I think we have to do something", what you are saying is that the animals have got to die before anything happens?
Mr Price: No, I am sorry, I am not saying that. There are two points.
Q784 Chairman: It says you are concerned about it here. That is why I asked the question.
Mr Price: Yes, but the point I was making is not about not being able to do anything until the animal dies, the point I was making was about not being able to do anything until the animal suffers. The basic test of cruelty, which you have had in English law since 1849, I think I am right in saying, is that of unnecessary suffering. It appears in every substantive piece of legislation that is concerned with cruelty. It now appears in Council of Europe legislation and in EU legislation. It is fine. Everyone knows what it means. One of the good things about this Bill is that some of the tests or references to proportionality and things elaborate on the case law that has been used to explain what "unnecessary suffering" means. That is all good; we welcome that. The only‑‑
Q785 Chairman: Can I stop you there. You do not think that the way the Bill is currently constructed rules out the continuing use of that body of case law?
Mr Price: It will have to be interpreted. At the moment the way it works is that the courts will look at whether the animal has suffered, which is a clear enough thing to establish, you then look at whether what was being done was necessary, and necessary as a particular meaning in a sense, and you balance the two together. It is quite difficult, or can be quite difficult, to carry out that balancing exercise. There are problems with some of the case law because it is Victorian and relates to circumstances that do not apply now, but most people know what it means, and I imagine that the concept of "suffering" and the concept of "unnecessary" will still be ‑ the case law that explains "unnecessary suffering" will still apply under the present law. We now have the clearer use of proportionality, or explicit use of proportionality, so that people understand what we are talking about. But going back to your point about "likely to", the only point, the only animal welfare offence in which you get a "likely to" element is the element of the Abandonment of Animals Act 1960. To some extent I think it is reasonable for the courts to be able to ascertain whether, if an animal has been abandoned, it is likely to suffer - that is a fairly clear‑cut thing - but if you are going to apply "likely to" to absolutely every aspect of cruelty, I think from a practical point, and it must be in the interests of justice to ensure that things are practical to enforce, it is going to be difficult working out at which point you are going beyond what might happen to what is likely to happen. The example I think I gave in the response was that of if you are riding a horse for the day. If you start off riding a horse, if you carry on for ever, you are likely to cause unnecessary suffering; if you just sat on it, you may cause unnecessary suffering. I find it very difficult to see at what point anyone can say you are going beyond "may" and become "likely". It seems too uncertain.
Q786 Chairman: Sorry, Mr Fursdon, I wanted to ask Mr Price, how would you give certainty then?
Mr Price: Just trying to finish off the point. If it is only likely to suffer or to be caused unnecessary suffering that means it is not yet suffering, so the animal is not in any harm as a result of not having a "likely to" test.
Mr Fursdon: I just really wanted to clarify the fact that if suffering was taking place, and it is a question of degree, if it was already taking place, then we would not object to what is going on here; it is just the fact that you could presumably take somebody who everybody knew in the locality was a bit of a rogue and so you then say, "Right, well, because he is a bit of a rogue, I am going to take the animals away because he does not know how to look after them." In fact, that person could be looking after them perfectly okay. It is a question of where that "likely to" definition comes, and I think we are concerned that some people will be judged before they have even done anything, particularly if you lead it back to who is doing the judging and is there an agenda there. I think that is the point we are trying to make.
Q787 Alan Simpson: Can I move on to the fines and punishment aspects of that in your submission. I think one of the points that particularly troubled me was your approach to the notion of fines and punishments. I almost find myself thinking: did you want the Committee to take seriously your suggestion that fines should be in line with the amount of profits that were likely to be made by the acts of cruelty? It seems a bizarre notion. We never say that about cruelty to kids: how much money would their parents make out of them? For you to suggest somehow the level of fines should be constrained by whether you were likely to be making a large profit or a small profit just seems ludicrous?
Mr Price: I was saying take the thing the other way round. It seems to me if you are causing unnecessary suffering for a profit the penalty should be higher than if you are causing unnecessary suffering inadvertently. If you are a farmer who is a bad farmer who has not acted with any sort of malice or with any idea of benefiting themselves through their harm, it seems to me not unreasonable that the penalty you suffer should be less than someone who is running some animal torture show or something.
Q788 Alan Simpson: I think that is what I am suggesting is ludicrous. It seems to me that you move from the notion of suffering. The idea that‑‑
Mr Price: No. You are still convicted of suffering. What I am saying is that you should be punished more if you are imposing suffering for profit.
Q789 Alan Simpson: Why should the fine not just relate to the suffering? You would not do that in relation to children. Is not the issue quite simply whether people should be punished and whether there should be a fines regime for acts of cruelty?
Mr Price: I do not know anything about child law, but I do know about environmental law, and for most environmental crimes the penalty is higher if you are acting for profit than if you are doing something inadvertently; and that was the parallel I was picking up on.
Q790 Chairman: Just to follow Mr Simpson's line of questioning, that means that if somebody keeps an animal not for commercial purposes and, according to your line of logic, is cruel to that animal, they should not be hit as hard as if somebody is cruel but it so happens, coincidentally, that they are in business and they make a profit?
Mr Price: No, not inadvertently. If what you are doing is, I suppose, celebrating cruelty for its own sake or providing cruelty as entertainment - I accept there is no right or wrong, it is a value judgment, but it just seems to me that if you are exploiting animals in this way for profit then you ought to penalised more for it than if you have just made a mistake. After all, you if you have just made a mistake you are still convicted, you are still fined.
Q791 Joan Ruddock: I was trying to follow through what you were actually saying, and it did seem to me that the distinction is between doing something advertently and doing something deliberately. You are equating making profits with deliberate actions and I think there is a distinction between inadvertent action and deliberate action, which is separate from the amount of profit that you might make?
Mr Price: I take your point. When I was talking about making a profit it was in the sense that you would... I am sorry, when I was talking about this making a profit it was on the basis you were doing... I think we are saying the same thing but you are saying it better than I did, but you are right.
Q792 Joan Ruddock: I could be on your side by my own definition, but not on the one that you originally offered?
Mr Price: Sorry, I should have been clearer. I was not thinking that anybody would do something deliberately cruel other than for profit, and that seems a reasonable basis on which to impose a heavier penalty, but I think the basic point is good.
Q793 Joan Ruddock: You must accept and you must have known of cases where there would be no profit involved but there was deliberate cruelty. That is the important distinction that we would accept?
Mr Price: I take your point.
Chairman: Alan, do you want to follow this up?
Q794 Alan Simpson: Yes, in a sense I would echo the point that Joan Ruddock has just made, but I would also go on and ask you whether, as a consequence of that, you follow it with the point you make about the deprivation of the animal, the ownership of the animal. I want to know: do you object to that as a penalty in principle? Because it seems to me that you describe it, your sentence is: "Being prohibited from keeping a dog in the absence of any welfare considerations is merely oppressive", but you are saying that fines and prison are an acceptable form of punishment?
Mr Price: Yes.
Q795 Alan Simpson: But that it should not be within the remit of the law to extend that and to remove your right to own or to be responsible for the animal?
Mr Price: The purpose of this legislation is to promote animal welfare. If there are no welfare implications for the animal staying with its owner, then I cannot see any reason to deprive the owner of that animal, but you can penalise them under the fines/imprisonment point.
Q796 Alan Simpson: There would be animal welfare implications if there were fines and imprisonment ‑ I think that is the starting point ‑ but what you seem to be saying is that that should be the finite limit?
Mr Price: Yes.
Q797 Alan Simpson: And we have had people giving us evidence that say, "What if you have patterns of neglect, what if you have patterns in which the solicitors who gave evidence to us from the local authority yesterday were saying, under the existing law, people simply transferred the ownership of animals to their girlfriends, to other family members, so you have a succession of abuses that take place? Really what you have to do is have the right to remove the animals from that person's stewardship?
Mr Price: Yes, that is what... You can do that. You can remove the animal if there are welfare implications, but if the animal is not going to suffer any harm as a result of staying with the owner and the owner is also punished through fines or imprisonment, then I do not see what is unacceptable about the situation.
Q798 Mr Wiggin: Can I just clarify this. So if somebody is running a puppy farm in an appalling manner and also keeps a horse, you take away the dogs but leave them with the horse. Is that what you are saying?
Mr Price: No. What is being proposed in the Bill, as I understood it, was that, in addition to a fine and/or imprisonment, you can deprive the owner of the animal as a form of punishment, and I think the explanatory notes use the word "punishment". I am saying it is wrong, as a matter of principle, to deprive the owner of the animal when there are no welfare implications.
Q799 Alan Simpson: I must be being obtuse. Could you perhaps give me a practical example of the circumstances in which you believe that someone would be fined and sent to prison but there were not animal welfare implications for the offence that they committed?
Mr Price: I cannot, but that is a matter for the courts and not for us. If the court finds that there are no welfare implications involved in leaving the animal with its owner then I cannot see any reason why the court should deprive him of the owner. I agree, it is not a situation that is going to arise at all often, which is why we did not mention it as a prime concern at the outset.
Q800 Alan Simpson: If you are saying then leave it to the courts to define those circumstances, in principle why should the courts not have the right to also say, "But we think that it is wrong to leave this person with the right of stewardship or ownership of these animals"?
Mr Price: Because the only way in which it could be wrong is if there are any welfare implications; otherwise, why is it wrong?
Q801 Alan Simpson: But you said in your first answer, "I cannot give you an example. That will be for the courts to decide." I am saying, why would it not be right for the courts to decide that they do not believe that it is safe to leave that person with the ownership of the animal?
Mr Price: The circumstances could arise. It could have been... Say a one‑off loss of temper resulted in the animal being harmed in some way; quite right to penalise the person; punishment of some sort; but if everything else suggests that the owner will look after the animal and there is no better alternative for the animal, then I cannot see what is wrong with the court, in appropriate circumstances, saying that the dog, whatever, should stay with the owner.
Chairman: You can ponder that while Joan Ruddock takes up matters connected with definition of "animals" in the Bill.
Q802 Joan Ruddock: I think we are all aware that there are a whole raft of definitions, and we have heard evidence from others about potential confusion and even the suggestion there should simply be the word "animal" and then exemptions should be produced from that. The Countryside Alliance have said that they have noted the four categories in the Bill, the animal, protected animal, kept by man, etcetera. I wonder if you would like to say to us what you believe could be the confusion arising from these terms, whether you think they are sufficiently matched in the clauses to the appropriate animals and how, if that is not the case, you think there could be greater clarification? What would be your choice for defining "animals" for the purpose of this Bill?
Mr Jackson: It is not an easy matter. "Animal" is an imprecise term, and, if I can put on a lawyer's hat for a moment, I would personally prefer that there was specific reference to mammals, to birds, to fish, if it is intended that the legislation should apply to fish, and I think that one wanders into a problem of definition if one uses the generic term "animal".
Q803 Joan Ruddock: That would make it much more complicated, would it not? The Bill would become enormously long, would it not?
Mr Jackson: I am not sure that is the case. I think, particularly where one is dealing with the creation of a criminal offence, it is desirable that legislation is clear, particularly about what the offence is, and I think there are some reasons for concern about the use of the word "animal".
Q804 Chairman: Can I follow on from that, because in your evidence in paragraph 2.2 you raise the question of the definition of "protected animal", and having heard you say that you would like to have it in simple terms, birds, fish and mammals‑‑
Mr Jackson: By way of example.
Q805 Chairman: ‑‑by way of example, so are you saying that‑‑. In clause 54(2) of the Bill it says "An 'animal' is a protected animal", and it goes on to give a definition which you claim may be flawed. So if we were writing this in your terms, an animal, we would have three things: "A mammal, a fish and a bird is a protected animal, fish or a bird for the purposes of this Act." Is that the kind of definition that you are looking for?
Mr Jackson: I think the point I am making is that what is a mammal is absolutely specific; there is not the slightest doubt what a mammal is. There is reason to be doubtful about what an animal actually is. How far down the biological chain do you go before you stop dealing with animals?
Q806 Chairman: But Mr Price told us earlier on that many of the precedents which underpin the law in this area ‑ I am not asking for free advice, Mr Price, I am just interpreting what you said ‑ in other words, this current legislation, if it comes to a court, the court can still borrow from that which has gone before. So the question I put to you, as a lawyer, do you not think that the term "animal" has been established sufficiently clearly in existing law that people know what it means? What you are saying is up to now anything about "animal", animal welfare legislation, for example, we do not know what this thing called an animal is, so we had better redefine it in terms of mammals and fish and birds, because now we do know what they mean?
Mr Jackson: I would put it this way. If you leave it as it is, you certainly have a situation in which the courts over the years may have to extend the definition of what an animal is.
Q807 Mr Wiggin: I think one of the purposes of using the generic term "animal" is because we seek in this particular position of legislation to cover zoos, and my clerk reminds me about platypuses and other useful difficult to define creatures. The purpose really here is to cover everything, and it is where there are omissions further down the biological chain that we are really seeking a little bit more clarification?
Mr Jackson: I understand the difficulty. I am not the legislator.
Q808 Chairman: Mr Price, by all means shed some light on this?
Mr Price: With all respect to John, I do disagree. I think the Bill is well drafted and entirely consistent. I think it is clear what it means. I appreciate there are five different sorts of animal, or whatever the number is, but it all fits; it all works; you can tell what applies in what situation. I think the draftsman should be commended for that.
Chairman: That is a good point. Joan, do you want to follow on the line of questioning?
Joan Ruddock: No, I think not.
Q809 Chairman: Let me just ask Mr Price one other question on the definition of animals. A number of our witnesses are concerned about inconsistency in the use of the term "animal" through the Bill. Do you have any worries about that?
Mr Price: No.
Q810 Chairman: Are you quite happy on that?
Mr Price: We spent some time trying to work out if there were any and could not find anything.
Q811 Chairman: Right. One of the things which again you both might like to comment on is the general question as to whether this legislation, which, I suppose, for some, there are some witnesses or some evidence we have had which suggests it should encompass all animals, whether kept or in the wild, but in the context of country pursuits, fishing, shooting or whatever, man can take hold of, in the physical sense, or acquire animals in the course of those pursuits, and you raise then whether in fact the Bill applies to animals under those circumstances. I wonder if you would like to comment about your concerns in that respect?
Mr Price: I think the extent to which it impacts on animals in the wild is really quite small. It is really only once they have been released from captivity and for the short period after that. As I am sure everybody knows, the welfare of wild animals is regulated under the 1996 Act.
Q812 Chairman: The reason I asked that questions is because the Countryside Alliance have commented about fishing, which is not the releasing of but the taking into captivity of, and I do not want to play the two of you off against each other, so I suppose I had better ask Mr Jackson. Why do you think that this Bill would apply to the temporary stewardship by a man in a keep-net of a fish, for example?
Mr Jackson: I would like to go back to my opening remark, if I may. This Bill will, I think, we think, have limited application to wild animals, but it has, in our view, very usefully introduced this concept of a duty of care. Sooner or later we are in this country going to have to address the question of the welfare of wild animals ‑ the law on that topic is in the most dreadful mess ‑ and we think it could be extremely useful to extend this concept as it is used in this Bill, the concept of care, to a wild animal once man has engaged with that animal, because that is the point, in our view.
Q813 Chairman: What do you mean by "engaged with the animal"? People on safaris might engage with animals from afar down the end of a telescope or a camera.
Mr Jackson: If you take a warren of rabbits which are living either on public land or on your own land, whilst they are living simply as wild creatures uninterfered with in any way man is not engaged with them. But suppose, for example, you decide you want rabbit for supper and you go out with a ferret with a view to bolting a rabbit into a net. Once you have done that you have, in our view, engaged with a wild mammal, and we are attracted by the concept of having a duty, not to do positive things, but not to do things which are unreasonable and would create unnecessary suffering in relation to that animal. We think it is a useful idea and I repeat, the law on the welfare of wild animals in this country, using the expression "animals", is in the most dreadful mess and needs to be dealt with, and this is one of the reasons we actually welcome in this legislation the introduction of this concept of a duty of care.
Q814 Chairman: Moving on in terms of the areas covered, one of the areas certainly the Countryside Alliance express concern on is, as you say in your evidence, paragraph 2.9, "There is no definition of 'mutilation' in the Bill", and this again is a subject which has come up from a lot of our witnesses. Perhaps you would like to tease out that a bit. Do you have a definition in mind?
Mr Jackson: I pass this to Graham Downing, because this comes to the docking of working dog questions.
Q815 Chairman: You can deal docking with as well if you like. We will take the two together.
Mr Downing: It is a particularly emotive word, and it is not defined. It is not defined in the 1968 Agriculture Act either. Our concern is that it might include a whole raft of different activities: for example, spaying and castration of dogs, one would assume, would be exempted under section 15, but would, for example, the wing‑clipping of game birds be exempted, the removal of dew claws, both of which are important activities in relation to country sports? On the question of tail‑docking, the explanatory notes within the draft Bill indicate a general prohibition on docking with an exemption for working dogs. The prohibition of docking is of great concern to Countryside Alliance members and, indeed, I know there are a great many others, but the Alliance's involvement is purely with dogs related to country sports and pest control, and we have been stressing to officials the importance of prophylactic docking for the prevention of tail injury in working dogs of all sorts. What we would wish to do is to ensure that working dogs, that the breeders of working dogs might ensure that those litters may continue to be docked legally by a veterinary surgeon, and that is the nature of discussions which we have been having with officials.
Q816 Chairman: So I think, if I have understood you correctly, you want something more specific in the Bill from your stand‑point to make it absolutely clear what this terminology means and in the case of tail‑docking what it should and should not be applied to?
Mr Downing: Yes, I repeat, our concern is with working dogs, for example, for shooting, falconry, deer stalking, dogs used for pest control. Clearly there are other areas of working dogs, such as those which are used by Customs and Excise, those used by the police, which might also be involved with this, but we do not have any involvement with dog showing, for example, and quite clearly the Kennel Club would be responsible for that area, so our involvement has been purely related to working dogs. But what we would see as being a reasonable way forward on this is to enable the breeder to establish with the veterinary surgeon or to provide evidence to the veterinary surgeon that the litter which he is seeking to be docked is, indeed, one of working dogs. So what we would wish to be able to do is to ensure that he can provide, he, the breeder, he or she the breeder, can provide evidence to the veterinary surgeon to enable the veterinary surgeon to make that decision on the basis of reasonable evidence.
Q817 Ms Atherton: Presumably you would not know that until you sold the dogs?
Mr Downing: Dogs may not be docked after their eyes open; so we are talking about puppies that are forty‑eight hours old.
Q818 Ms Atherton: But you would not know that they would definitely be, just because it was a particular breed that they would definitely be working dogs?
Mr Downing: We have avoided going down the breed route for that specific purpose. There was at one stage the suggestion that a list of breeds might be identified as being breeds which could legitimately be docked. The difficulty in establishing the breed of a dog at the age of forty‑eight hours is quite considerable. A veterinary surgeon may not be able to determine the breed. Within field sports there are a lot of dogs used which are of indeterminate breed, crosses between various breeds, so to say that if the dog is of a specific breed it may be docked is unhelpful in this respect. What we want to do is to ensure that the dogs, whatever their breed, which are used for working purposes may continue to be docked.
Q819 Alan Simpson: I think the critical issue that we would face as a committee and subsequently that the government would face is a very clear distinction between docking for animal welfare reasons and for cosmetic reasons. Even if the committee were to take on board the principle of what you are saying there would have to be some practical mechanisms for identifying the circumstances in which the animal welfare reasons were specifically defined and made legitimate. The evidence which we have had in relation to sheep and pigs in a sense gave us a fairly easy template but you are taking us into areas now that are more complex. The point about this is that for the law to encompass what you are saying the wording would have to be robust and it would be helpful if you had ideas about how that could be made robust. The committee would welcome that.
Mr Downing: I do not think it is complex at all. What one is trying to do is to ensure the prevention of future injury of the dog. It is as simple as that. Docking at the moment enables a breeder to do that. With this new legislation, if there was no exemption under section 1(4) for tail docking then a breeder in association with their veterinary surgeon would no longer be able to do that, and it is to ensure the future welfare of the dog that we wish to see an appropriate exemption made.
Q820 Mr Wiggin: I think that under the current structure of this Bill if you did not dock and you knew that your dog was likely to injure its tail because of the job you had in mind you would already be in trouble. What I think you are trying to suggest does help. The difficulty colleagues face, I think, is the way we get the wording right in the Bill because it looks to me as though if we were just going to dock dogs that were intended for work it is too difficult to enshrine that in the law because it pre-packages them, if you like. That is not really quite what you intend. That means that if your bitch was pregnant and having pre-sold you might be able to persuade the vet that three of them were going to gamekeepers but the other three of the litter that was due might not be. You can see how that would be awkward for the vet and a decision would not necessarily be forthcoming then and we want to make this crystal clear if we can. Can you help?
Mr Downing: I would like a veterinary surgeon to have the opportunity to take action which he regarded in his professional opinion as being in the best interests of the future welfare of the dog. It could be as simple as that.
Q821 Mr Lepper: We have concentrated on tail docking. You mention in your evidence concerns about wing clipping of pheasants as well. You have established with the tail docking that animal welfare is your major concern. Do you have the same criteria when it comes to the wing clipping of pheasants?
Mr Downing: I do not believe that this should really be a welfare issue. One is not damaging the limbs of the bird; one is simply snipping through the primary feathers in order to render it temporarily flightless until such time as it moults those pinion feathers and regrows new ones. What one is doing is taking a temporary action to restrain the bird and prevent it from flying out of the top of a release, for example.
Q822 Mr Wiggin: Where it might well be eaten by a fox. That is the purpose of restraining it. It is quite important that people understand that.
Mr Downing: But, having said that, because there is no definition within the draft Bill of mutilation we have to raise the question: is this within the minds of the legislators? I do not know the answer to that.
Q823 Chairman: One of the areas we have heard a lot of concern about is the pretty open-ended power-making regulations under clause 6 of the Bill and, interestingly, the Countryside Alliance put forward a proposal that "it might also be worth considering a new requirement that a minister should certify the regulation as fit for ensuring animal welfare". How on earth would such a process work in reality? Who would be the certifying body?
Mr Jackson: Under the suggestion it would be the minister.
Q824 Chairman: So it is self-certification?
Mr Jackson: We already have that in relation to the human rights legislation.
Q825 Chairman: But in the context here I get the impression that you are concerned that people should not just go on willy-nilly introducing regulations for the sake of doing it. There has to be purpose behind it and there has to be worth in terms of it. You are not asking for any kind of external objective test to be introduced?
Mr Jackson: No. Underlying the remark is a concern that over time there might be a form of creeping erosion and we do think that it is important that it should be remembered that this Bill is concerned with animal welfare, that what can involve animal welfare does not always command general approval. We have made the point really to emphasise this aspect that this legislation is about animal welfare. We think animal welfare is important. We would like to see proper animal welfare legislation introduced in relation to wild animals but we do not want people to start making judgements about the way in which people interact with animals if it does not involve the welfare of the animals.
Q826 Chairman: Do the CLA agree? Do you have a view about this? Do not worry if you have not.
Mr Price: Our view would be that we have this arrangement already under the 1968 Act in respect of farmed animals We do not think there is any problem with it.
Q827 Chairman: I just want to conclude our session of questions with the Country Land and Business Association. In paragraph 42 of your evidence you say, "We are concerned about giving local authorities a general power to prosecute". Why?
Mr Price: For two reasons. First of all, my understanding is that local authorities already have the power to prosecute under section 222, so I am not quite sure what is intended that goes beyond that. The only concern is that local authority staff have adequate resources and competence to do it. It is very easy for the lay person to misunderstand the way in which an animal is being treated and we want to avoid that situation arising. That was the only point.
Chairman: Gentlemen, unless there is something that is so burning in your breast that you feel you must put your hand up and say, "But I just want to say this", I think we can bring matters safely to a conclusion. Thank you very much for your contributions and again many thanks for your written evidence.
Memoranda submitted by Advocates for Animals and The League Against Cruel Sports
Examination of Witnesses
Witnesses: Mr Douglas Batchelor, Chief Executive, Mr Mike Hobday, Head of Public Affairs, and Ms Rebecca Seden, Political Officer, The League Against Cruel Sports, and Mr Peter Stevenson, Political Adviser, Advocates for Animals, examined.
Q828 Chairman: We welcome in our next group of witnesses somebody who has been before the committee on a number of occasions, this time under the guise of Advocates for Animals. We welcome Mr Peter Stevenson. Mr Stevenson, what title do you hold in this organisation? Are you the chief advocate?
Mr Stevenson: No, I am not the chief advocate. I am political adviser.
Q829 Chairman: And the League Against Cruel Sports are represented by Mr Douglas Batchelor, the Chief Executive, Mr Mike Hobday, their Head of Public Affairs, and Rebecca Seden, the Political Officer. Welcome to our proceedings and again thank you very much indeed for submitting the written evidence. You heard the first question that I asked our previous witnesses. Just to refresh your memory if it has passed you by, it is one thing if you do not want us to forget why you are in favour of the bill, assuming that you are, and one key issue that you would not like us to forget in terms of your reservations or concerns about the Bill. Mr Stevenson, I am going to ask you to open the batting as you are on your own and it gives the other three time to think of the answer.
Mr Stevenson: From our point of view the thing we are most pleased about in the Bill is clause 3, the new duty of care, the requirement for keepers to take reasonable steps to ensure the animal's welfare. We think this is fully consistent with the way that thinking has developed over the last several years, that if you are responsible for an animal your legal duty goes beyond just not being cruel towards having a positive duty to provide for the animal's wellbeing. We think that sub-clause (4) of clause 3 is again very helpful in setting out what it means by ensuring the animal's welfare. It specifies the needs of the animals that must be met in terms of a suitable environment, suitable accommodation, food, water, etc. We think all that is positive and helpful both in itself and in terms of creating this new offence and this new level of legal responsibility. If you then link it in with clause 11, the power to take possession and retain animals in certain circumstances where a vet certifies that they are suffering or maybe would be likely to suffer, it does mean that the authorities, whether it is the police or the RSPCA, are going to be able to move in and protect animals much sooner than they can now. There have been a number of really bad cases over the years where everybody knows there is a problem but they have to sit there and not be able to do anything legally till there is actual suffering. Now the fact that there is a likelihood of suffering, that everybody knows that if unchecked this situation will lead to a real problem, means there can be intervention; that too is welcome. Moving to the second half of your question, what are we most disappointed about, I find it hard to pick out just one thing. Perhaps I can have two or three and I will be brief about them. The lack of any power for the authorities, be it the police (I think it would be the police) or maybe the local authority, to serve an improvement notice is one. This is already working very well in the field of animal transport. It has been part of the Welfare of Animals during Transport Order 1997 for some years now. This means again that the authorities, without having to go to the big expense and cumbersome procedures of going to court, can merely serve a notice on somebody saying, "You need to take the following steps about" - shall we say - "the way you are keeping your dog", which may be in a makeshift shelter in the garden, so that if the dog never has any proper shelter from bad weather, is not having any proper veterinary treatment though it is ill, is not getting proper food, a notice could be served. I think that would be a helpful addition to the armoury but Defra have said in their notes that they feel it is not appropriate to do so at this stage. Another thing we are disappointed about in the definition of "animal" is that an earlier version of the thinking was, certainly up in Scotland but I believe so here as well, defining "animal" as not just a vertebrate but including cephalopods and crustaceans. There really is a lot of scientific evidence that both of these categories of beings can feel pain. Cephalopods have really quite complex nervous system, as do lobsters and crabs, and if there is any doubt in people's minds that they are capable of feeling pain I would urge that one thinks of the precautionary principle and says that if there is some doubt the attitude should not be, "We will not include it in the Act until there is cast iron evidence", but that if there is some good evidence that they have nervous systems and feel pain let us give them the protection of the law. The third area, and I am not sure if it is an area you really want to go into, is the way that Defra in the appendix to the Bill indicated the way they are thinking of using their new powers, for example in relation to circuses, tail docking, whatever, and we have a number of disappointments there which I could elaborate upon. To give one example, we are disappointed that Defra is not willing to prohibit the use of animals in circuses. We feel this is in most people's minds a fairly outmoded use of animals in entertainment and should no longer be permitted. There are a number of disappointments in the thinking for the future use of powers.
Q830 Chairman: You will be pleased to know that one of my follow-up questions was, do you think the Bill has gone far enough?, and you have answered before I asked, so that was very useful indeed. Mr Batchelor, would you like to respond?
Mr Batchelor: Thank you for inviting us to give evidence. As the League we have been engaged for some 80 years in looking at the key issues in relation to what people do to animals for sport. We see this Bill as taking some of those issues forward in a very useful way. We see the duty of care as being a major advance. We think that principle is useful. We think the concepts that go with it are useful. We have two primary concerns. The first one is in relation to scope in that we believe the Bill and the duty of care should be based on the five freedoms which are normally associated with animal welfare and we note that this one seems to have left out freedom from fear and distress and we do not understand why. Secondly, in relation to timetabling, in relation to the secondary legislation, we are particularly concerned, as you will know from our submission, about the potential timescale or a delay of five or six years in bringing forward the secondary legislation in relation to greyhound racing. We believe that is not acceptable given the problems that we can see in that industry and we believe need to be resolved in a shorter timescale. That is my brief answer to your first question.
Q831 Chairman: Thank you very much. In fact, the parallel point that you were making on greyhounds was made to us only yesterday when we had the British Veterinary Association here, and other organisations have made a similar point. I would like to go back to Peter Stevenson because in your executive summary and your evidence you make an interesting point, and I quote, "The Bill should make it clear that local authorities may attach welfare conditions to licences", and you expand upon that by saying, "Make it clear that local authorities may attach to the licence conditions designed to safeguard the welfare of animals". Could you expand upon that point because I was not quite clear how the local authority would operate such a power? Would they invent conditions to apply to licences of their own volition or would they have some point at which they could draw down wisdom to put into these conditions?
Mr Stevenson: They would have a point from which they could draw down wisdom, I would hope.
Q832 Chairman: Give me an example of how it would work.
Mr Stevenson: Surprisingly, the whole question of local authority licensing does not feature a great deal in the Bill and yet if you look at the current law and the way that some of the powers may be used by Defra in the years to come, local authority licensing is one of the real cornerstones of the way that animals are protected in this country. Already, for example, if you want to have a pet shop, a riding establishment, a kennel, a cattery, dog breeding, a zoo or keep a dangerous wild animal, you need a licence from the local authority under a variety of statutes developed over the last 40 years, and most of them make it absolutely clear that the local authority may and indeed should attach conditions to that licence designed to protect the animal's welfare. My slight worry about the new Bill is that the whole question of licensing is dealt with in a line and a half in clause 6. One of the many purposes for regulations made by the secretary of state is to make provision for licensing in relation to specified activities and I have already indicated, for example, that they would use that possibly to require pet fairs to be licensed and a number of the other things that they have indicated later on. My worry is that although clause 6 is very broadly drawn as a lawyer myself I would feel happier if it made it clear that when formulating a new licensing regime the secretary of state would have the power to make it clear in the new regime that the authority had the power and possibly even the duty to attach relevant conditions. Otherwise, what is the point of a licence if that licence cannot say, "This is how you must operate your pet shop or your pet fair or whatever"? I really want to make sure that any future licensing regimes are in the same position as the current one, which is that the authority can clearly attach welfare conditions. Otherwise it would be weaker than the existing licensing regimes. You asked me where would they draw this down from. There is a very good precedent in the Zoo Licensing Act, which goes all the way back to 1981, which says that the secretary of state may issue what are called "standards of modern zoo practice", and it then says that the authority has to "have regard" to those conditions in deciding on its own ones. In other words it does not have to use them but really there should be a fairly good reason why they are not using them. I think this should be really helpful because clearly each and every local authority cannot have the expertise to know what conditions should be there for pet fairs and pet shops and zoos and I think it is really good that there should be this possibility of a set of central standards which local authorities draw upon. I would like those possibilities to be expressly included in the Bill.
Q833 Ms Atherton: I understand you are opposed to pet fairs.
Mr Stevenson: Yes. Advocates for Animals believe that pet fairs should be prohibited. There is even some argument that the current law, though it is a murky area, already prohibits them, but certainly we believe they should be prohibited. Remember that a pet fair is where animals or birds or reptiles are brought together for perhaps just a day or two, inevitably in a makeshift environment as compared with a pet shop. They will often have a long journey to the pet fair and, if they are not sold, a long journey back to wherever they have come from. We do not believe it is possible in those makeshift temporary surroundings to properly cater for welfare and we would like to see pet fairs prohibited and pets sold through pet shops if they are going to be sold. If there is not going to be a prohibition on pet fairs then of course we would like to see proper licensing.
Q834 Ms Atherton: But if we did not have pet fairs, and I am not saying whether I am in favour of or agin them; I am just exploring the issue, is there not a danger that you would then get animals traded on the internet or in more underground ways with less transparency and therefore it is more difficult to trace where animals are being sold to and who by?
Mr Stevenson: I would prefer to see them, if animals are being sold as pets, sold through a pet shop which has some sort of permanency where, because it is permanent property, better arrangements for animals' welfare can be made. Animals, of course, are, as you say, already being sold on the internet. That is happening in addition to pet fairs and again we welcome the fact that Defra's thinking is that there would be a code of practice although we would want to see licensing for internet pet sales.
Q835 Ms Atherton: But that is quite difficult.
Mr Stevenson: Yes, it is difficult.
Q836 Ms Atherton: To put it mildly.
Mr Stevenson: But I believe it is possible and I believe that a licence for internet sales would have to have some conditions that apply to the person selling the animals as they do to the owner of a pet shop. For example, they must have enough knowledge and experience to look after the animals while they are in the shop, although in the case of internet sales one is talking not about a shop but they must be physically kept somewhere before the sale through the internet is completed.
Q837 Chairman: What happens about international sales? If somebody has got a trade in exotic animals and they are in the middle of nowhere, that is where their computer terminal is, they could not care less about a licensing regime here. They just want to have orders and send the animals.
Mr Stevenson: I think your point is a good one and I am afraid I do not have a good answer as to how one deals with that practically. Remember that an awful lot of exotic animals are being sold either at physical pet fairs, which we believe should not be happening, or through pet shops. Most pet shops nowadays are not selling dogs and cats; they are selling exotic animals. Indeed, that is another area connected with all the things we are talking about that we really are concerned about. There are even estimates that within a few years' time there will be more exotic animals as pets in this country than dogs and cats. It is not a minority interest, yet most of these animals are totally unsuited for the kinds of environments that people can provide in their homes and most of the people buying them have virtually no knowledge of how to look after them. There are some real welfare problems and we believe that either the keeping of exotic animals as pets should be prohibited or, if that is not what is going to happen, one should require them to be licensed to have an exotic animal as a pet so there can be some control over the way these animals are kept.
Q838 Ms Atherton: Can you buy animals through eBay?
Mr Stevenson: You mean through the internet?
Q839 Ms Atherton: Can you regulate through the internet server, the provider, eBay or any other similar internet company?
Mr Stevenson: The answer is I do not know but I believe that there must be a proper attempt to license internet sales, though I take your point that that is going to be problematic if the basic operation is out of this jurisdiction.
Q840 David Taylor: Peter, we have had a lot of contact over the years and you have been very helpful and I have never really disagreed with anything that you have said, but on this occasion I am afraid I have to. Pet fairs are organised by enthusiasts and for enthusiasts welfare will often be an issue that is paramount in their thinking and how they operate. I would instance caged bird sales that take place twice a year run by a local family in Hermitage Leisure Centre, Whitwick in north west Leicestershire where it is just not the case what you have said here, where you say, "It is simply not possible to maintain and enforce suitable centres of welfare at temporary sales in a makeshift environment". As far as I can see, and I have visited a number of these events, every effort is made to give very appropriate care and environments for the birds that the enthusiasts are showing. It is a mixture of an exhibition and a sale and I think to ban such events would be unnecessary because licensing and inspection would drive up welfare standards at those events where they fall below what is desirable. Do you not think that is a possibility?
Mr Stevenson: Are you talking about an event where the birds are just being exhibited or where they are on sale?
Q841 David Taylor: Both. It is a hybrid event.
Mr Stevenson: All I can say is that our experience and many of the reports we have come across from other organisations as well indicate real welfare problems at these pet fairs, but, of course, if you tell me that some of them you have experience of are being run properly I fully accept that and I suspect that despite Advocates for Animals' desire to see a prohibition the practical reality is that things will go as Defra is indicating, that there will be licensing for pet fairs. Certainly if there is not to be a prohibition then we would welcome licensing so that all of them can be run at the high standards to which you are referring.
Q842 Mr Lepper: Just on that same subject, I took it that your concerns about pet fairs were both about the conditions in which the birds or animals, whatever they might be, are kept at the location itself and the conditions in which they might travel to and from the location.
Mr Stevenson: Yes.
Q843 Mr Lepper: So if there were to be licensing would that have to cover not only the accommodation standards at the location but also the conditions of transportation of the birds or animals?
Mr Stevenson: I had not thought about that aspect, and of course technically it is covered by the Welfare of Animals during Transport Order because that order goes into very little detail apart from for farm animals. I think it would probably be helpful if any licensing could also cover the way the birds or reptiles were being transported. The transport order is totally silent on any detail for birds or reptiles or fishes.
Q844 Paddy Tipping: The League have been unusually quiet. You have heard our previous exchange about game shooting. My impression - just correct me on this - is that the RSPCA are not against game shooting but that the League are principally against game shooting. Is that right?
Mr Batchelor: Yes, you are right. Our policy is clear. We see it as being a fairly large‑scale and very bloody business but we also recognise that this is an Animal Welfare Bill that does not attempt to actually address that wide an issue but does attempt to improve the welfare of the animals involved in that issue, so to that extent and with that limitation, which we make in our comments, we say, well, at the very least we think this Bill provides a way to improve the welfare of the animals that are subject to these cruel sports.
Q845 Paddy Tipping: Just spell that out for me, Douglas, if you would?
Mr Batchelor: How it improves the welfare?
Q846 Paddy Tipping: Yes.
Mr Batchelor: Well, in particular it expands the duty of care to not just the birds that are in the intensive rearing, it expands the duty of care beyond the point of release, which we welcome. It picks up the point because this Bill repeals the Abandonment of Animals Act so there is a necessary carry forward there and I heard John Jackson's comments about how when the wild animal is again reduced into possession, which is the common law phrase, then the duty of care extends in those circumstances as well, and I think we would share the point he made about when man engages with animals then man has a duty of care to ensure that what he does is both necessary and humanely done. I think we have said in our submission, and we would agree with that. On the greyhound racing front we feel that there are clearly recognised problems in that industry and that the Bill provides a structure within which they could be addressed. I think what is common to both of these industries is that in establishing a duty of care you have to spell out what constitutes good care in the codes of practice that are attached to the legislation. We have concerns over timescale obviously in relation to bringing forward those issues. We recognise that it is actually a reasonably practical approach because you cannot put everything into the primary legislation and you need a mechanism by which the codes of practice evolve over time depending on the problems that are met in the particular industries involved, so we think that is logical provided a reasonable timescale can be met. We do have one other concern on that in that if this sort of law is going to apply, particularly where the duty of care has been expanded, to in effect being able to evidence the fact that you are looking after the animals in your charge properly, in the absence of a code, it would be very difficult to evidence that, so part of our concern about bringing forward these codes is to provide people with a code that actually gives them an assurance that they are not being negligent in their duty of care, for want of a better way of expressing it. I think part of that ‑ and it may be implicit in the Bill but it is not explicit ‑ is the requirement to keep records that would demonstrate that you have actually fulfilled your duty of care, and for those records to be available to the relevant people for inspection so that you can fulfil that duty. Just going slightly wider in relation to the greyhound racing issue, one of the concerns in the industry is the level of injury caused by certain types of track design leading to reducing the working life of the dog. If those records in the widest sense are not available to a licensing authority, how could they possibly determine what is and what is not a good track? So there is a need for the records to be kept. There is certainly a need for some of the records, if not all of the records, to be available to the appropriate authorities at the time that they are taking decisions so that that welfare can be improved and so that decisions on codes of practice as they evolve are based on factual information with regard to what is happening in particular industries. We would like to see the timetable for legislation on the face of the Bill and we would like to see the requirement which may be implicit at the moment on the record-keeping to be explicit on the face of the Bill so that it is very clear. There is one other thing I would pick up on in relation to the two industries being talked about and the earlier discussion about who inspects. We can understand the concerns that are being expressed but in the case of the game bird industry those premises, by and large, already being inspected because they are agricultural premises, by people who are appropriately qualified, by people who have the access. Those premises are, by and large, being managed by people who are used to keeping records and already have to do so under the cattle and sheep movement orders and so on. There is a well‑established process of record-keeping that relates to the animals, relates to the drugs used and relates to the treatments used. We think that all of that can be very easily extended by further inspections by the same people of the same premises. That seems entirely logical to us. With regard to the racing industry, we think that the Gambling Bill places a duty on the local authorities to license such premises and of course they would have to do so on the basis of reasonable information when they are both granting and reviewing licences.
Q847 Paddy Tipping: I am pleased that you mention the Gambling Bill because I am told that the Gambling Bill is going to be published very quickly. However this Bill as it affects greyhounds does not come in until 2010. Why do you think there is so much delay?
Mr Batchelor: I can imagine that there is a timetable of secondary legislation based on the demands upon Defra. I think there was a concern expressed by one of the other Committees of this place in relation to the priority given to animal welfare crime and all the issues associated with it. I think the welfare problems in these industries are such as to make it reasonable to bring forward that timescale by putting on the face of Bill that the secondary legislation shall be enacted within a certain period, and we have suggested two years in our submission.
Q848 Paddy Tipping: Let's just go back to game birds. You recommend that action is taken to stop the over-provision of game birds because of the welfare issues in breeding and when they are released into the wild. You have not commented on wing clipping. Have you a view on that?
Mr Batchelor: Our view on things like wing clipping and bitting and burning and beak trimming and so on is that all of these are done to the bird because of the conditions in which people try to keep that bird and the problems that are associated with that. In principle, we would much rather they solved those problems than mutilated the bird.
Q849 Mr Wiggin: Can I ask about this because this would apply to domestic chickens as well to stop them escaping. You do not think they should have their wings clipped?
Mr Batchelor: Basically I do not because I think you can provide premises which provide protection, for example from predators such as buzzards. You can do that but you would do that by providing some sort of roof above the premises rather than leaving them open to ‑‑‑
Q850 Mr Wiggin: If they had a tree, for example, in the middle of the pen you could not do that. We do know that chickens shed their feathers and so do pheasants so it is like cutting your finger nails rather than cutting your finger. Do you accept that difference?
Mr Batchelor: I do recognise that in a young animal it regrows its feathers but part of the five freedoms is for those animals to be able to express their normal behaviour and if you are going to stop them flying you are not meeting the requirements of the five freedoms.
Q851 Mr Wiggin: To what extent do you think this Bill could jeopardise any country sport, because presumably you would want that?
Mr Batchelor: I think there is a very real difference. This Bill does not ban country sports nor could it be used to achieve that, but what it does do is place a duty of care on people to ensure good welfare of the animals involved. We support that and think that is entirely reasonable.
Chairman: Lady and gentlemen, thank you very much indeed for answering our questions and again for sending in your written evidence. That has been extremely helpful to us. Thank you very much.
Memorandum submitted by the Self-Help Group for Farmers, Pet Owners and Others Experiencing Difficulties with the RSPCA
Examination of Witnesses
Witnesses: Ms Anne Kasica, Member, Mr Ernest Vine, Member, Mr David Arthur, Member, Ms Joan Jackson, Self-Help Group for Farmers, Pet Owners and Others Experiencing Difficulties with the RSPCA, Mr Christopher Day, Homeopathic Vet, and Mr Jonathan Cairns, Solicitor from Shulmans Solicitors, examined.
Q852 Chairman: I will not say we are quite outnumbered but you have certainly brought a large number of people. We have before us the Self-Help Group for Farmers, Pet Owners and Others Experiencing Difficulties with the RSPCA. I do not want you to give your life history but might you just identify yourself for the record and let us know, if you hold a position in this organisation, what it is or if you are a farmer or animal keeper, just give us a brief introduction. We will start with Ms Jackson.
Ms Jackson: I am the owner of the pet shop in Doncaster. I have come with Jonathan Cairns.
Q853 Chairman: You are an owner of a pet shop in?
Ms Jackson: In Doncaster and we have had experience of the RSPCA.
Q854 Chairman: Mr Cairns, tell us about you.
Mr Cairns: My position here is I have been asked by three separate groups to attend, the Self-Help Group, Ms Jackson and Mr Christopher Newman, whom I believe has been assisting the Committee with other matters. I believe I can assist the Committee with matters of practical application as far as the stages of investigation of the RSPCA are concerned and in particular with section 11(3) in the draft Bill.
Q855 Chairman: When you are not doing all of this what do you do?
Mr Cairns: I am a solicitor, sir, from Shulmans Solicitors.
Q856 Chairman: Mr Arthur, where do you fit in?
Mr Arthur: I am very much new to all this. I do not form an actual part of the SHG. I am just a private individual, I sit on the periphery of the SHG and discuss various matters with them, in other words I interact with the SHG.
Q857 Chairman: And what do you do to keep body and soul together?
Mr Arthur: Whatever I can, sir.
Q858 Chairman: What are you doing at the moment or are you like an actor in between roles?
Mr Arthur: I have been known to be an actor in between roles but yes, basically I am putting together a business at the moment.
Q859 Chairman: Right. Mr Day?
Mr Day: I am a veterinary surgeon in a referral practice. I write books and I lecture and I am an expert witness on occasions and I use alternative medicine. I have been asked on occasions by this organisation to offer advice and counsel.
Q860 Chairman: Right. Mr Vine?
Mr Vine: I might make a suggestion that you ask Ms Kasica next because she actually founded it and I help with it, dealing with people, people phone in, they need help, they need ‑
Q861 Chairman: So you are part of the organisation?
Mr Vine: I am part of the organisation.
Q862 Chairman: Right, well, now we have found the fount of all knowledge.
Ms Kasica: I founded the organisation when I was prosecuted back in 1989. I found there was no help anywhere. Solicitors I went to had no clue how to deal with an RSPCA investigation and prosecution. I saw in the Farmers' Weekly that another farmer had been prosecuted in similar circumstances. I tried to contact him and in the end rang the magazine, spoke to a journalist, who said, "Oh, you want to start a self-help group." I did not but he wrote an article to that effect and calls came in literally from Southampton to the Shetlands.
Q863 Chairman: And how long have you been helping each other?
Ms Kasica: Since 1990.
Q864 Chairman: Since 1990. Right, now we have got an idea of your backgrounds and where you are coming from, the role of the RSPCA in prosecution mode ‑ and I am not going to ask you the standard question we started with because I think your focus is very much on the prosecution side of the Bill and you would not be here if you did not have reservations about those aspects ‑ the Bill does appear to bestow upon the RSCPA a special status. Perhaps you might like to just comment by way of opening about the role that you perceive that the RSPCA might undertake in the context of this particular measure and the reservations you might have. Obviously all of you I guess must have had some experience in terms of prosecutory activity by the RSPCA and I think the Committee might find it helpful to know the type of problems that you come up against that you might wish to alert us to. Ms Kasica, shall we start with you. Obviously we cannot on every question have everybody speaking so a little bit of self‑discipline would be helpful.
Ms Kasica: Do you want me to stick to my specific case or do you want me to tell you about the whole range of cases from people who just ring us with a question, a query, a worry, right through the line to the people who commit suicide?
Q865 Chairman: We are not in the role of an "agony aunt" for those who have been subject to prosecutory activity but I think what we are looking for are some general points which arise from your various experiences with the RSPCA. You have had some problems. They do have a special role in terms of prosecutions of animal welfare and if you have some general reservations that you wish to illustrate by way of actions that have occurred to those along the table or others who have been in touch with you, fine. I think the only thing that I would caution you on is please stick to the facts of the matter. Normally on these occasions when people have differing views, we have the benefit of the other side sitting alongside to publicly rebut whatever is said. I have no doubt that the RSPCA will in their usual way be taking very careful note of what is being put forward and I would just for the record say that they are coming back to see us tomorrow morning to deal with some of the issues that have come up so far in our proceedings so if you would care to reflect upon those points in framing any of your replies. Right, fire away.
Ms Kasica: Our worry is that you are going to empower an organisation ‑‑‑
Q866 Chairman: May I say we are not. The Government have put forward the draft Bill and they may.
Ms Kasica: --- may empower an organisation which is often campaigning politically to end the very activities that they are going to be investigating in their prosecutarial role. That is somewhat biased from the very beginning. How can they be non‑judgmental? How can they go in from ground level and do this? If you then go on to look at a typical prosecution where the RSPCA starts an investigation, seizes animals (often unlawfully and often in very strange circumstances) you have the flow very much from the figures supplied to you of people who find they have signed their animals away when they did not even know what they were signing. They swear that they thought they were just signing them over for a couple of weeks respite care. You go on and on with this and then we have supplied you with some figures which should be in front of you. We only obtained these figures in the past couple of days. They flow very much from the figures supplied to you by Jackie Ballard. Yes, she is right, 96 per cent of their prosecutions are successful ‑ until they get to appeal. Consider this: the number of defendants who appeal magistrates' convictions is more than 26 times greater in RSPCA prosecutions than those progressed by the CPS and the number of successful appeals at crown court is almost three times greater in RSPCA prosecutions than those progressed by the CPS. Surely there is something wrong when you see such a vast discrepancy in those figures.
Q867 Chairman: Mr Cairns, you are the lawyer and you have watched the RSPCA as a prosecuting body and you have heard what Ms Kasica has had to say. Give us your take on that.
Mr Cairns: If I give you some early examples. The practical position in the first instance is the defendants do not know where to go or how to get legal advice. A very common story is that people come to me and say they have been to see a solicitor and they have simply been told to plead guilty. These cases are quite difficult, they are quite complex. What happens is that defendants are quite often questioned by RSPCA inspectors before there has been any form of disclosure, they are interviewed in their home addresses or in the street. It is very difficult for those individuals to know exactly what the medical position is. In practical terms what happens with these cases is that they can take up to four to six months before the real case papers are served on defendants, and I come back to clause 11(3) so far as that would apply in practical proceedings. These cases can take up to 12 months to come to a final hearing and in contested cases the typical shape of a case now is lasting anywhere from four to ten days. It is being heard in a magistrates' court with a number of expert witnesses and typically these cases are now being assigned to district judges. The majority of district judges seem to have a good grasp and handle on the facts and issues before them and they are making what I would say are reasonably fair decisions.
Q868 Chairman: Can I just ask Joan Jackson are you here because you have been the subject of prosecution?
Ms Jackson: Yes.
Q869 Chairman: What happened to you?
Ms Jackson: Firstly, can I just say thank you to everybody who answered our submission. We sent a submission to everybody on the Committee here, so thank you for replying. Myself and my husband have a specialist reptile and fish shop in Doncaster and we were visited by the RSPCA in February 2003 and, like Mr Cairns said, it took a long time for our case to come to court. It was six months before the papers were served and then it took 14 months before it came into court for a four‑day hearing which was then adjourned because only the prosecution evidence was heard and after two weeks of the judge deliberating the charges were then dropped and the case was dismissed. During that time we found life very, very difficult. We did not know how to go about it at first but we had heard who to contact and we progressed from there with the help of Mr Cairns and Mr Newman. The powers that the RSPCA already have are quite worrying but to give them any more in the Animal Welfare Bill we think it is quite frightening from our point of view because they appear to be accountable to no‑one. They seem to have the power to come in and they do not need to have a reason. The reason they gave us on the day as different to the reason they gave in court. It just begs the question what was the reason for coming in? Was there a reason? From the investigation that we made through the Data Protection Act there was no reason. So we find it very, very worrying. We also think that as far as seizures go the seizure itself was debatable. They called the Police we were told so that the Police could seize the animals because under the law only they can seize animals but the Police came only under a breach of the peace request. We have letters from South Yorkshire Police saying they did not seize the animals. Our animals were taken, they died in their care, not in our care. They were fine when they left us. They were taken as a precautionary measure. The animals died yet we were accused of neglect and cruelty for which we were prosecuted. We find that very, very worrying. It happened to us, it will happen to others, and it has happened to others.
Q870 Paddy Tipping: I would just like to clarify what you think the Bill says about the RSPCA. I cannot see the RSPCA mentioned at all in the Bill. Presumably you are concerned that they might be appointed as inspectors by a local authority?
Mr Vine: We know for a fact that the RSPCA has been approaching local councils and county councils and so on and saying, "Can we have meetings to see how we can enforce these new powers." We know that.
Ms Kasica: Powers they have been granted as prosecutors under the 2000 amendment. Remember they have been saying for a long time they want no more powers, they do not want to be prosecutors and yet we suddenly find that they have been negotiating with Defra to obtain those powers. Assuming those powers are going to be transported into this Act which I understand they will be ‑‑‑
Q871 Paddy Tipping: Can I just stop you there. Why do you say you understand they will be?
Ms Kasica: From the wording of the proposed Act.
Q872 Paddy Tipping: Perhaps Mr Cairns can help you. Just draw my attention to where it says that these powers are going to be imported across to the RSPCA.
Mr Cairns: For my part I make no assumption it is going to be the RSPCA who will fulfil the full role of prosecution but in practical terms it is difficult to envisage any other organisation who on a national scale could actually take it on. I accept there could be restrictions placed on the RSPCA in certain areas.
Q873 Paddy Tipping: Okay. Clearly all of you have had contact with the RSPCA and have a view, if I can put it like that, on the RSPCA. Are you saying to us as a Committee you would not want the RSPCA validated as inspectors?
Ms Kasica: Very much so, unless there are strict controls and proper safeguards so that where an investigator or prosecutor breaches someone's human rights or destroys animals when they should not there should be some very severe comeback and there should be a requirement that the case is dropped. Furthermore it should be that prosecutor who would be prosecuting.
Q874 Paddy Tipping: Okay. I think Mr Cairns has just told us that the RSPCA might be in the frame as a national body to do this. You have told us very strongly that you do not want them to do so.
Ms Kasica: No.
Q875 Paddy Tipping: Just spell out for us who you think should. You are all involved with animal welfare, you all care about animals. Just sketch out for us who should be the inspectors.
Mr Vine: Just now you said that we have all obviously had contact with the RSPCA. I have never had any problem with the RSPCA except for the fact that I do not like the way they operate and take the law into their own hands.
Paddy Tipping: That is a fairly definitive view. Let's go forward. You are involved with animals. Just spell out for me what you would envisage under the Act as inspectors? What kind of people?
Q876 Chairman: Mr Day, you can add your two pennyworth after Mr Vine has finished.
Mr Vine: Properly qualified and trained people.
Q877 Paddy Tipping: Help me with that. That is a big catch‑all, is it not?
Ms Kasica: Defra, local animal health, local ‑‑‑
Q878 Chairman: One at a time because Mr Day wants to get his bit in as well. You finish, Mr Vine.
Mr Vine: The RSPCA certainly know their law and how to walk round it but they themselves have been approaching all different animal groups and saying, "We do not have the expertise in your animals. We need help. Will you collaborate with us?" They admit themselves that they do not have the knowledge of the animals so how can they be inspectors?
Q879 Paddy Tipping: Help us with where we are at. You were saying Defra, local authorities ---
Ms Kasica: --- Local authorities, animal health organisations.
Q880 Paddy Tipping: Vets, presumably? Mr Day, you were going to add to the list?
Mr Day: I have 32 years of experience of RSPCA prosecutions and I have acted as an expert witness on either side of the court because obviously my duty is to help the court. I also have to declare that I was personally prosecuted by the RSPCA unsuccessfully and in fact the judge did exonerate me. That case was a very typical example where the animal was seized unlawfully and it died very quickly in RSPCA care. The owners had no right of redress and they were jointly prosecuted with me. It has come to my notice that the RSPCA appear to have a bias against alternative medicine and appear to equate it with no veterinary treatment, which is a very unfortunate approach, and it has been the feature of several cases. They also appear to have a bias against organic farming. One of my big concerns as a constituent is that any inspector should not have any vested interest and the RSPCA have a vested interest in the publicity gained by prosecutions and they are in the market place with the Freedom Food brand. Therefore, they have a very strong vested interest in that aspect of animal management and therefore I think that renders them unfit as an inspectorate.
Q881 Paddy Tipping That is pretty clear - not the RSPCA - but who?
Mr Day: Defra is clearly in a position that it could move into this area. Otherwise one has to envisage setting up training for a dedicated inspectorate. Typifying most of the cases I have been involved with is a lack of understanding of the issues and the bringing of the emotive side to court and not the factual side. We are all affected emotively. I have to support any attempt to improve animal welfare. It is my duty as a vet and it is my first and foremost raison d'etre in my whole professional life, so I am not against the Act in itself or the Bill in itself. I am against anything that would perhaps endanger both animal welfare, which I have seen happen in these cases, and human rights.
Q882 Paddy Tipping: So are you telling me that the RSPCA is a force for bad rather than a force for good?
Mr Day: From a lot of what I have seen it would appear that way.
Q883 Paddy Tipping: Right, that is the view of all of you?
Ms Kasica: Yes.
Mr Arthur: Unfortunately, yes.
Mr Day: I support the idea of an RSPCA. I think we need an RSPCA in this country and in the world. I just think that there are certain ways that it operates at the moment that are unsuitable to its purpose.
Q884 Chairman: Just to sum up before I bring Mr Lazarowicz in on this, I think you would all agree they really should not have a role as prosecutor. Is that the sum total of where you are coming from?
Mr Day: That is where I am coming from certainly.
Mr Cairns: If there were checks and balances in place. If, for example, the RSPCA were an investigating body but the prosecutions were carried out by somebody independent such as the CPS that for me as a lawyer would satisfy the appropriate position.
Ms Kasica: We accept that too.
Chairman: Right, so it is independence from bias in the prosecutory process which is the key thing. Mr Lazarowicz?
Q885 Mr Lazarowicz: Just a point of clarification on the figures which you have produced to back up your presentation. I see that you calculate the rate of guilty convictions in RSPCA prosecutions as being 26 times higher than that in the case of CPS prosecutions.
Mr Vine: Mr Arthur, I think is the expert on this.
Q886 Mr Lazarowicz: What I do not see in your figures is the absolute number of CPS convictions to compare with the absolute number of RSPCA convictions.
Mr Arthur: The numbers in CPS cases are obviously far greater than they are in RSPCA prosecutions and these numbers are detailed quite clearly on the web sites of the sources that I have placed here. What we have done is to take the percentages stated by the Crown Prosecution Service of convictions, of pleas of not guilty, of people then found ‑‑‑
Q887 Mr Lazarowicz: This is all CPS convictions that you are talking about here?
Mr Vine: It does not stipulate they are all CPS but it is certainly confined to CPS convictions. It is information which is obviously supplied by the Lord Chancellor's Department Crown Prosecution Service.
Mr Lazarowicz: Thank you.
Q888 Mr Wiggin: As I understand it, the RSPCA can prosecute at the moment and in this Bill their powers will be potentially strengthened but the law will be clearer certainly, and we have heard from everybody that there are good bits and bad bits. I am just a little bit concerned about what they will do should you be right. If we do go down the Defra/State Veterinary Service route what will the RSPCA do then?
Mr Arthur: I must stress that along with everyone on this desk I am very much pro animal welfare. I am also very much pro human welfare. Sections 11, 13, 39 and 40 provide that an inspector or police constable, persons who in all probability would have little real knowledge or experience of animal husbandry, with the authority to enter a property that is not a private dwelling (and the definition of private dwelling I would suggest is again a hugely subjective area) seize an animal, kill that animal, possibly on the spot if in his personal opinion it appears to him that the animal is suffering or not being properly cared for or simply likely to suffer or not be properly cared for if its circumstances do not change, which I would suggest is again another highly subjective area, if it appears to him, a virtually lay person who will almost certainly be uneducated in the accurate or precise interpretation of observable signs, let alone produce a meaningful diagnosis or prognosis. The RSPCA for example would no doubt claim that all their inspectors are fully trained yet I know one renowned veterinary practice in Abergavenny that was contacted by an RSPCA inspector with a request that they attend a horse to put it down in consequence of it appearing to him, the RSPCA inspector, to be suffering with its feet. The vet duly attended the animal and advised the RSPCA that the horse's condition did not warrant its destruction but that corrective farriery would resolve the problem and that they would contact their own orthopaedic farrier in order that this be done. The animal's owner was present throughout all of this. The vet then returned to the practice's premises and contacted their farrier. An appointment was arranged for the farrier to attend the following day, the slight delay causing the vet no concern whatsoever. This information was then passed on to the horse's owner and the RSPCA inspector. However, the inspector insisted that tomorrow was too late, that the horse was suffering. The inspector, despite the advice of an equine veterinary surgeon from a practice which provides the British Horse Society with a team vet for prestigious international events, shot the horse because of the way it appeared personally to him, effectively an unqualified layman. So what if that horse had been a valuable thoroughbred, a breed with a recorded ancestry back into the 1600s so a horse that was a combination of over 300 years and approximately 28 generations of highly selective and capable breeding regimes, 300 years of hope, planning, dreams and aspirations.
Chairman: That is very helpful, Mr Arthur, but I do not think that was the response to the question that Mr Wiggin asked so perhaps Mr Wiggin might like to restate it and seek an answer.
Q889 Mr Wiggin: I will give you another chance here. The problem is the RSPCA is not going to go away so if we have a separate inspectorate what do you think they are going to do?
Mr Arthur: Precisely what I have just said, sir ‑‑‑
Q890 Mr Wiggin: I am sorry, I do not accept that. I am pretty sympathetic to your case but I do not really want another lesson on an Abergavenny vet. I want to know what you think the RSPCA should really be doing.
Ms Kasica: Can I ask if you are saying if the RSPCA are prevented from taking part in prosecutions? Is that what you are saying?
Q891 Mr Wiggin: In this Bill if they are not allowed to be inspectors, because that is what the Bill says, what will they do?
Ms Kasica: We cannot possibly answer that.
Q892 Mr Wiggin: Tell me what you would like them to do.
Mr Day: I would like to see them doing the role I always understood from childhood they fulfilled, which is to highlight areas of animal welfare problems or possible areas of animal welfare problems and bring them to the notice of the proper authorities and perhaps recommend education or recommend certain improvements, bring expertise into help, and not have prosecution as the first weapon, and it is used as a weapon unfortunately. There are many cases from my practice career where a little education and a few words would have worked wonders whereas prosecutions brought distress to animals and to people and obviously it is where animals are concerned that I have to have my main concern.
Q893 Mr Wiggin: I think in the drafting of this Bill the Government's approach seems to be one in which prevention is better than prosecution and I think you would all find favour with that. What we want to achieve is to ensure that what we enshrine in the Act when it becomes an Act will allow the best animal welfare procedures to take place but without the persecution of people such as yourself by this charity, and therefore there has to be a role and we have to take it forward.
Mr Day: I have concerns as a member of the public about the possibility of unrestricted access at whim and the way in which that would be done.
Ms Kasica: I could further comment on the potential role of the RSPCA. On the original role of the RSPCA, according to their founder Richard Martin at the inaugural meeting of what was to become the RSPCA, he said it would be a disaster if the RSPCA were to become known as a prosecuting society. He said that their aim should be to alter the moral tone of the country. What the RSPCA should be doing is going to people who have a problem, perhaps someone has died, perhaps they have become ill or unemployed, and they should say, "You have run out of money. Let us help you." You have got arthritis, you cannot trim your dog's nails, let us send our volunteers round." Not prosecution first and foremost.
Q894 Mr Wiggin: I think they would probably agree with that so that is very helpful, thank you.
Mr Day: In the recent foot and mouth disaster, for instance, there were many cases of acknowledged animal suffering where funds could have helped those animals through helicopter airlifts of food or something. People had donated funds expecting them to go to animal welfare improvement and some of these animals could have been saved and their welfare enhanced by investment as opposed to just standing and watching. We have had cases in Swindon, which is local to me, where private animal welfare activists have had to go in and help in cases where the RSPCA will not help because nobody will come forward and help in prosecution.
Q895 Mr Wiggin: Certainly in the way that we have heard the modern pet shop will be selling exotic pets, there are very different levels of expertise that somebody who knows about dogs could not possibly have about the ultraviolet light requirements of some reptiles and various other problems. So I think the Bill would like to take that into consideration. It is how we do it that is the challenge.
Mr Day: On the avoidance issue I would like to see an end to the practice for instance where another cat in Swindon was brought to me with a collar round its neck "RSPCA aware" rather like a car in a ditch saying "Police aware". This animal was dying of chronic kidney disease and four people had complained about that animal to the RSPCA to my knowledge and they had either released it again with its collar or given the collar to somebody to put on it to stop them being pestered. You ask what role they should fulfil. I think that is the role that they should be fulfilling ‑ enhancing animal welfare wherever animal welfare is threatened.
Q896 Mr Lepper: It is helpful to have your view about what role you feel the RSPCA should be following. You said I think, Ms Kasica, that the organisation has been in existence since 1990?
Ms Kasica: Yes.
Q897 Mr Lepper: You talked about numbers of people from Southampton to the Shetland Islands who have been in contact with you. How many people nationally have been involved in the organisation, would you guess, since 1990?
Ms Kasica: Oh crumbs, many hundreds. I have three and a half filing cabinets full, to give you some idea.
Q898 Mr Lepper: Okay. It is my ignorance I am sure but until you put in your submission to this inquiry I had not heard of your group before over these 14 years. That is my ignorance I am sure. Could you just tell us briefly please what action you have taken over those 14 years to make the public perhaps aware of your concerns about the RSPCA?
Ms Kasica: Initially we were in Farmers' Weekly. We have been on the Farming Today programme, in the Guardian. Of course, it is very difficult to get the media to take up any cause that does not support the RSPCA so until we were able to get Internet access and a web site we did not take off as rapidly, but once of course we got a web site and a national helpline number the floodgates opened. To be honest, the thought of this Bill terrifies me because we simply would not be able to cope. We do not get a fraction the number of people who are being prosecuted in this country coming to us and our resources are stretched. We are all self‑funding. We have no outside income whatsoever and it would be impossible, especially if the number of prosecutions, as has been predicted, goes up.
Q899 Mr Lepper: One final question, if I may, about the nature of the organisation and the people who have contacted you. Have you any rough estimate of the proportions of those people who have contacted you over the years who are farmers, those who are ordinary members of the public, those who are pet shop owners?
Ms Kasica: It changes depending on the current RSPCA campaign. We tend to find that the type of animal or the type of activity that is being investigated goes with whatever publicity campaign is running. Whether that is because those people get together, talk to each other and someone finds us and they pass it on amongst themselves, I do not know, or whether it is because the RSPCA looks more closely at those types of activities when they have a campaign on, again I do not know.
Q900 Alan Simpson: Let me try and take the RSPCA out of this for a moment. Who do you think should be prosecuting you?
Mr Vine: The CPS.
Ms Kasica: The Police/CPS or Defra/CPS or local authority/CPS. There should always be a second assessment of the facts. I think this is the fault that has led to the huge discrepancies in the appeals figures. Originally the right to prosecute was taken from the Police because it was believed that they would have too great an interest in obtaining a successful prosecution having been involved in the initial investigation. You are talking about a campaigning body who wants to end particular activities and then you are allowing that campaigning body to run riot. You see where I am going?
Q901 Alan Simpson: Sure, I just wanted to take that part out for a moment and just follow this one through. Whoever you then give the rights of prosecution to, would you still have the same objections to unrestricted right of access?
Ms Kasica: Yes, very much so.
Q902 Alan Simpson: Can you explain to the Committee why you feel that in terms of animal welfare you should have rights that do not apply in other aspects of criminal law? The Police currently have powers to enter someone's premises where they have reasonable grounds to believe that an offence is being committed.
Mr Vine: That is the Police and they are answerable to other bodies.
Q903 Alan Simpson: Sure, but what I am saying to you is I first of all asked you to define who you would want to be the body that was prosecuting you and then you have to say okay and on what basis do you secure the evidence that you would need for a successful prosecution. In other aspects of criminal law it is quite straightforward, the Police have unrestricted rights of entry where they have reasonable grounds to believe that an offence has been committed, so why should you be any different?
Ms Kasica: Because in today's society the modern witch-hunt has become the suspicion of animal neglect and animal abuse. Very much along the lines of child abuse where you have seen the scandals wherein the professionals do not listen, this is happening in animal cases.
Q904 Alan Simpson: If we were doing this in terms of child care, if we were doing it in terms of other criminal activity, the response to that answer would be to say really you are wanting the law to give the criminal notice of your intention to turn up to look for the evidence that you have just told them you are going to be coming to look for and you have given them the time to hide. Does that not make an ass of the law?
Ms Kasica: No, because parts of this Bill are creating, for instance, licences and breach of licence conditions in itself will be a crime which has no effect on the animal welfare issues. The animal may well be in perfect condition, better kept than by anybody who has a licence, and yet you will have powers of entry to anywhere that you think those licence conditions may be breached.
Q905 Alan Simpson: Or the animal could be conveniently lost by the time the Police turn up.
Ms Kasica: That goes the same for any situation anywhere.
Q906 Alan Simpson: No, the issue that I am trying to raise is that if you give notice in any other aspect of the law you give the person committing the offence the opportunity to hide or lose the evidence.
Ms Kasica: I think the problem is that in these cases you very often are talking about people's homes, their family life, their pets are part of their family. You are then going to raid their premises on a minor issue. I cannot see where you are coming from, I am sorry, we need a better definition of the question.
Q907 Mr Wiggin: What I think my colleague is saying is that if you are breaking the law on animal welfare and it is not going to be the RSPCA, it is going to be the local authority, then they ought to have unfettered access, should they not?
Ms Kasica: Only if there are proper and adequate controls.
Mr Wiggin: Yes, but if it was the local authority and the Police ---
Q908 Chairman: The main message that is coming through is whoever prosecutes it should be on the basis of a well‑founded and proper and logical approach. Mr Day, you have been anxious to come in.
Mr Day: I am possibly ignorant of the law on this, forgive me if I am but I am a veterinary surgeon. I understand that the Police would have to seek those powers in certain instances in order to come in and gain access not from the owner or the proprietor or whoever but from the appropriate authority before they came in to seek their evidence. I do not think the Police have the right to come and see my veterinary records of clients' activities, for instance, without a search warrant. I may be wrong but that is the attitude I take in client confidentiality and unless they have gone through the proper channels my clients' confidentiality is sacrosanct. Furthermore, if we look in this Bill we have the concept of the possibility of animal welfare problems in somebody's view inciting them to have unfettered access. That would make me very frightened. If there is a very genuine ground that animal welfare is being jeopardised then I can see the point but through the proper channels, not at somebody's whim who could then at 8 o'clock in the evening decide to just pop in and have access because he knows the owners are not there and do what he wishes.
Q909 Chairman: In fairness, you may not have had a chance to study all the evidence that the Committee has had. Just for the record, at the beginning one of the questions that we originally asked the RSPCA was how do you go about the question of investigating and then subsequently prosecuting and they and others have made it clear that it is a whole myriad of information that comes from members of the public who feed this information in. In other words I think what you are concerned about is are people going to go on fishing expeditions?
Mr Day: I am concerned about the possibility of abuse of process.
Q910 Chairman: Ms Jackson wants to amplify that point.
Ms Jackson: I must come in at this point because when we were visited by the RSPCA they had no reason to come in. They came in under one pretext; in court they said something different. According to them they had had a number of complaints against us ‑ a number of complaints ‑ and yet when we went through the Data Protection Act to investigate the number of complaints to find out where they came from and in what period of time there were none. My concern is that they do come in perhaps without any particular reason but also they do not seem to be as knowledgeable as they should be in the area in which they are inspecting.
Chairman: Mr Wiggin is going to ask one final question.
Q911 Mr Wiggin: What I was concerned by was what you said earlier about the trends in prosecutions so when there is a campaign of some sort that is then presumably followed by a string of cases that go to prosecution. I am very worried about a charitable organisation that needs to raise funds using its prosecutory powers to emphasise or in some way enhance its fundraising ability because they would, and it is not unfair, and if they are doing a good job they should tell people about it, however the cart must not come before the horse, if you see what I mean. Is that what is going on because nobody else would be able to tell us?
Ms Kasica: We can only tell you that we see a trend. We do not have the figures for the entire country. We had enough of a struggle to get the prosecution figures that we asked for. It was only Charles Hendry, one of your colleagues, who obtained them for one of his constituents who passed them on to us.
Q912 Mr Wiggin: I have certainly noticed in my constituency where there are a lot of poultry growers that this campaign about the strength of chickens' legs comes up once every three or four years and there are some pretty horrible pictures. The poultry sector responds but that is ignored and the campaign is run again. I just wondered if that is the sort of thing you are seeing as well?
Ms Kasica: Yes we do.
Chairman: Thank you very much indeed. I think without doubt you have alerted us clearly to your concerns about the way that prosecutions should be conducted under this Bill. I have no doubt, as I said at the outset, that the RSPCA will have heard what you have had to say and it may well be that when they come before us for a brief session tomorrow they may wish to comment on some of the points that you have made it. I think it might be quite helpful to hear what they do have to say. Can I thank you again for the contribution you have made and for the written evidence you have sent us. Thank you very much.