New Clause 9 — Improvement Notices
Orders of the Day — Animal Welfare Bill
7:45 pm

Ben Bradshaw (Parliamentary Under-Secretary (Local Environment, Marine and Animal Welfare), Department for Environment, Food and Rural Affairs; Exeter, Labour)

I beg to move, That the clause be read a Second time.

Michael Lord (Deputy Speaker)

With this it will be convenient to discuss the following: Amendment (a) to new clause 9, in line 2, leave out 'may' and insert 'must'.

New clause 3—Improvement notices—

'(1) Where an inspector considers that animals are being kept in a way which is likely to cause unnecessary pain, suffering or injury he may serve a notice on the person appearing to be in charge of the animals requiring that person, within the period stated in that notice, to take action that the inspector considers to be reasonably necessary.

(2) An inspector serving a notice under subsection (1) shall give his reasons for requiring that action to be taken.

(3) It is an offence to fail to comply with an improvement notice.'.

New clause 4—Appeals against improvement notices—

'(1) Any person who is aggrieved by an improvement notice served under section [Improvement notices] may appeal to a magistrates' court.

(2) The procedure on an appeal to a magistrates' court under subsection (1) shall be by way of complaint, and the Magistrates' Court Act 1980 shall apply to the proceedings.

(3) The period within which an appeal shall be brought shall be two weeks, or the period specified in the improvement notice, whichever ends the earlier.

(4) A court may suspend an improvement notice pending an appeal.'.

New clause 5—Powers of a court on appeal—

'On an appeal made under section [Appeals against improvement notices] against an improvement notice served under section [Improvement notices], the Court may either cancel or affirm the notice, and, if it affirms it, may do so either in its original form or with such modifications as the court may in the circumstance think fit.'.

Ben Bradshaw (Parliamentary Under-Secretary (Local Environment, Marine and Animal Welfare), Department for Environment, Food and Rural Affairs; Exeter, Labour)

This amendment to the Bill reflects—[Interruption.]

Michael Lord (Deputy Speaker)

Order. We now have to get on with the next new clause. Will Members who are leaving do so quietly and, if possible, not all together, so that we can get on with the business of the House?

Ben Bradshaw (Parliamentary Under-Secretary (Local Environment, Marine and Animal Welfare), Department for Environment, Food and Rural Affairs; Exeter, Labour)

Thank you, Mr. Deputy Speaker.

This amendment to the Bill reflects my agreement in Committee to consider further a new clause proposed by Bill Wiggin. His proposition was that those accused of an offence should be told in a statutory improvement notice how they were breaking the law and what they needed to do to avoid being taken to court. I have taken that on board and that is what the new clause achieves.

Unlike the hon. Gentleman, however, we have not sought to replicate the approach taken in existing farm animal legislation, which makes it an offence not to comply with an improvement notice, but since the passage of the Human Rights Act 1998 may require an appeal process—a point that he acknowledges with his new clause 4. However, we believe that appeals are impractical because the period of an improvement notice is frequently short—for example, 24 hours—when dealing with the provision of water and feed. Appeals are also resource-intensive, as prosecutors may have to go to magistrates once for the appeal hearing and again for the prosecution, and the appeal process is easily abused by those who deliberately want to be obstructive and frustrate the inspectors.

Under new clause 9, we propose instead that someone who complies with an improvement notice will not be prosecuted. That is more straightforward, does not raise questions about appeals and is a clear incentive to someone to comply. Only inspectors, as defined in clause 46, will be able to issue those notices. I do not consider it appropriate that those who are not publicly accountable should be able to issue notices with formal legal authority.

We do not agree with the Gentleman that an inspector should be obliged to issue a notice, although I note that he has proposed amendment (a) to new clause 9, which would do just that, but new clauses 3, 4, and 5, which he also tabled, would not do so. Compulsory notices would enable the serial offender to comply with each notice and then repeat the offence, safe in the knowledge that the worst that an inspector could do was issue another notice. In such circumstances, as in particularly serious cases that involve borderline cruelty, the inspector must be able to proceed directly to prosecution if he or she thinks that that is the best course, particularly if a disqualification order would be appropriate. In most cases, we would expect inspectors to issue a notice, but they should have the discretion to proceed directly to prosecution where that is warranted, particularly when private prosecutors are free to do so.

Finally, new clause 9 relates only to alleged offences under clause 8—the welfare offence—but new clause 3 would also include the power to issue notices for alleged cruelty violations under clause 4. I am sure that most hon. Members would agree that for most offences where actual cruelty has occurred, inspectors ought to proceed straight to prosecution, rather than issuing notices. On that basis, I commend new clause 9 and urge the hon. Gentleman not to press amendment (a) or new clauses 3, 4 or 5 to a vote.

Bill Wiggin (Shadow Minister (Agriculture & Fisheries), Environment, Food & Rural Affairs; Leominster, Conservative)

I have fought for the inclusion of the improvement notice in the Bill, and I am pleased that the Government have wrestled with the very difficult task of proposing such an amendment. New clause 9 will serve as a statutory provision that represents an intermediate step before prosecution and will operate as an independent measure that will help to improve animal welfare standards.

The principle of issuing warnings—or, in footballing terms, yellow cards—with a statutory requirement before pursuing prosecutions will not only save time and money, but help to focus resources elsewhere, on the most serious cruelty crimes. However, although I can see that the Minister's officials have done a good job in drafting the new clause, I am disappointed that it does not include a mandatory mechanism to ensure that suspected offenders are issued with an improvement notice before any prosecution can commence, and I have tabled a "one-word" amendment accordingly.

The offences under clause 8, for which the improvement notice will apply, relate to the raft of codes of practice that the Minister plans to introduce under clause 12. Given that many owners may not have read a copy of the draft cat code and may not have read it carefully enough to know whether their cat happens to be too fat or too slim or is receiving sufficient mental stimulation, it is only right that we give them the opportunity to alter for the better the way that they care for their animals.

The vast majority of animal owners would be prepared to do the right thing if they knew what it was. Of the 257 improvement notices issues in the RSPCA's eastern region, only 17 were ignored. Let us just think of the court time saved and how beneficial it would be to inspectors to be empowered in that sensible and practical way, which would improve animal welfare. It is those 17 people whom we are after. That is the path to cruelty, so they are the people whom we want to prosecute, and we want to do so in the spirit of the Bill, before their animals have suffered cruelty; we do not want to prosecute people who are willing to change.

Furthermore, the Select Committee on Environment, Food and Rural Affairs, which considered a draft version of the Animal Welfare Bill more than a year ago, recommended that provisions for improvement notices should be included in the Bill. So if we fail to amend the Bill to give law enforcers the power to issue improvement notices, we will open the floodgates to prosecution.

The RSPCA has pointed out that some clarity on those notices would be helpful, and I am sure that there will be opportunities in another place to clarify how we deal with people who abuse this important merciful intervention. We can overcome the technical difficulties associated with people who hide behind the time frame, or who repeatedly fail for different reasons.

We know that such orders work, so let us give them the full backing of Parliament by ensuring that they are issued on a mandatory basis before all prosecutions under clause 8(1). Amendment (a), which I tabled to new clause 9, would serve that purpose, as would new clauses 3, 4 and 5, which I also tabled. However, it was the Minister's wish that I should not press that amendment or those new clauses to a vote. I shall happily take his advice on the new clauses, but I intend to seek a vote on amendment (a), which would make Government new clause 9 mandatory.

Humfrey Malins (Woking, Conservative)

I wish to intervene briefly on this matter to support my hon. Friend Bill Wiggin. Under Government new clause 9, as I understand it, the inspector may serve a notice, rather than having to serve one. That envisages the possibility—as my hon. Friend has confirmed, so I think that my understanding is right—that certain people may be served with a notice and certain people may not be served with one. Those who are served with a notice have an opportunity to remedy the situation and thereby avoid prosecution. Those who are not served with such a notice have no such opportunity at all and can be prosecuted without having the benefit of a notice. I can see no reason whatever why there should not be a uniform approach, involving the need to serve a notice in every case. Otherwise certain persons will be disadvantaged and become defendants, when if they had had the privilege of being served with a notice, they would not necessarily have become defendants.

No provision in the new clause governs the discretion in the service of the notice. We have no guidelines on when a notice may be served or when one may not be. I should like to know, for example, how the notice will be served. Will it be served personally or by post? I should like a little bit more information about the compliance time limits and, in particular, the provision whereby there may be a continuation of a period for the putative defendant to take such steps as are necessary, but I strongly support my hon. Friend. I hope that I have picked up the argument correctly when I say that in this case, it makes much more sense to use the word "must". Otherwise there will be two classes of potential defendants.

Greg Knight (East Yorkshire, Conservative)

Is not the word "may" commonly used in such circumstances? Is it not a way of drafting designed to indicate that the inspector shall serve the notice? If we change the word "may" to "must", how much further is my hon. Friend taking the argument? Is he suggesting that the inspector would commit an offence if he failed to serve the notice?

Humfrey Malins (Woking, Conservative)

My right hon. Friend, as always, makes an interesting point. Of course, an alternative for the word "must", which my hon. Friend suggests in his amendment, could be the word "shall". I accept the point that my hon. Friend is making, but there ought to be uniformity. It is silly to have one rule for one thing but a different rule for something else. Defendants would turn up in court—I am sorry to say, they may appear before me.

Bill Wiggin (Shadow Minister (Agriculture & Fisheries), Environment, Food & Rural Affairs; Leominster, Conservative)

They would be lucky to do so.

Humfrey Malins (Woking, Conservative)

It is kind of my hon. Friend to say so, but if a defendant said, "I must tell you, your honour, that I received no such notice from the inspector, but a friend of mine down the road received a notice and could remedy the situation and was not prosecuted. I would have taken action if I had received such a notice." I would be bound to take that into account as a mitigating factor, and I would regard it as absurd that one person should have a notice served on him without any particular reason and another person did not. My hon. Friend's amendment is compelling, and would bring much more sense to the otherwise sensible clause.

David Drew (Stroud, Labour)

I would be grateful if the Minister clarified the provision. I was lucky to serve on the Standing Committee, where we were led to believe by the Minister that there were disadvantages in the process of serving a notice. The greatest disadvantage is one of time: some animal welfare issues may need to be dealt with immediately, but if a notice is served there are opportunities not just for delay but for someone to produce mitigating circumstances. The Bill is an animal welfare measure that presumes that we are thinking on the animals' behalf, so I would be grateful if my hon. Friend clarified whether the Government have moved towards accepting the Opposition's proposal of a yellow card as an alternative to peremptory action. Can he assure me that there would not be any delay? Our discussions in Committee suggested that urgent interventions could be necessary.

Bill Wiggin (Shadow Minister (Agriculture & Fisheries), Environment, Food & Rural Affairs; Leominster, Conservative)

We share common ground on the issue of cruelty and the need to tackle it urgently. The new clause, however, applies to the breach of the welfare offence, which is obviously a lesser offence. It is important to serve a statutory improvement notice, because we are not dealing with direct cruelty.

David Drew (Stroud, Labour)

I agree, but there are gradations. What appears to be a welfare offence to one person is straightforward cruelty to someone else. Often, such matters are eventually decided in court; that is my dilemma.

Bill Wiggin (Shadow Minister (Agriculture & Fisheries), Environment, Food & Rural Affairs; Leominster, Conservative)

If that is the hon. Gentleman's dilemma and he is worried that he cannot decide without the court's help whether something is cruel or a welfare offence, surely the right thing to do is to issue the written warning. If owners ignore them and persist in their behaviour, it is clear that their intention is to be cruel. If they react immediately to the improvement notice and improve the animals' welfare, everyone has won, including the animals, on whose welfare the hon. Gentleman places key importance.

David Drew (Stroud, Labour)

I largely agree with the hon. Gentleman. My only worry is that the treatment of an animal may not improve, leading to further delay. I would be grateful if the Minister assured me that the position will be clarified in regulations, as we need consistency. One inspector may issue a notice, and that is the end of their responsibility. Another inspector, however, may regard the same offence as a clear act of cruelty and take the animal into care, leading to a prosecution of the owner and so on. The Minister made a clear statement in Committee that that was not the Government's preferred approach, but if he can provide a good justification for the change I will happily go along with it.

Colin Breed (Shadow Minister, Environment, Food & Rural Affairs; South East Cornwall, Liberal Democrat)

I thought that I understood the provision until I heard the last few exchanges. I, too, served on the Select Committee that conducted pre-legislative scrutiny of the draft Bill, and we discussed improvement notices at considerable length. That was a worthwhile discussion, which is reflected in the Government new clause. The word "must" suggests compulsion, but timing is an important issue too. There are sometimes conditions under which it is impossible for improvement to take place in a realistic time scale. Improvement notices, however, should be written in such a way that they are meaningful. People should try to write something to show how, step by step within a reasonable period, the animal's welfare can be addressed and hopefully it can recover. On some occasions, however, the abuse has gone so far that it would be difficult to codify a notice to deal with the problem. In those circumstances, the only logical thing to do is to proceed to prosecution, because an improvement notice would be meaningless.

Bill Wiggin (Shadow Minister (Agriculture & Fisheries), Environment, Food & Rural Affairs; Leominster, Conservative)

The point that the hon. Gentleman is making is valid if there were a prosecution for cruelty. If neglect has taken place for such a long time that there is no possibility of improving the animal's welfare, the animal has been treated cruelly. The purpose of my new clause is to tackle the welfare offence, which is partly dealt with by default in the code of conduct. Evidence suggests that when people are issued with an RSPCA improvement notice the vast majority want to comply with it. The problem is dealing with people's ignorance, and the new clause would help to address that.

Colin Breed (Shadow Minister, Environment, Food & Rural Affairs; South East Cornwall, Liberal Democrat)

I am grateful to the hon. Gentleman. We may be talking about only one word, but that word is significant. We are all travelling in the same direction, as we want to try to ensure that the improvement notices are designed to address the problem. Sometimes, however, flexibility on the part of people who are judging the situation can provide a more just solution. We are therefore dependent on the issuing of the notice and on its terms. It is not sensible to adopt a prescriptive approach to the issuing of a notice, insisting on the terminology to be used and the issues to be addressed if the animal is in a dire situation. We must trust the people who will go out and investigate offences. If there is an obvious case of cruelty they will tackle it straight away. There are always borderline cases, however, and people will take a subjective view as to whether bad welfare extends into cruelty. The flexibility provided by the use of the word "may" offers that opportunity, so that is my preferred option.

Andrew Turner (Shadow Minister (Charities), Home Affairs; Isle of Wight, Conservative)

I have listened carefully to the arguments advanced by the hon. Gentleman and, indeed, by my hon. Friend Bill Wiggin. Surely, the problem is not poor welfare tipping over into cruelty but poor practice tipping over into poor welfare. For example, many of us believe that keeping two Alsatians in a flat is contrary to the animals' best interests, but does that constitute treatment that justifies the serving of a notice under new clause 9?

Ann Widdecombe (Maidstone and The Weald, Conservative)

It depends on how much exercise they have.

Andrew Turner (Shadow Minister (Charities), Home Affairs; Isle of Wight, Conservative)

Indeed, but does that allow them to exhibit, in the words of—

Sylvia Heal (Deputy Speaker)

Order. Is the hon. Gentleman able to bring his remarks to a close?

Andrew Turner (Shadow Minister (Charities), Home Affairs; Isle of Wight, Conservative)

Indeed, Madam Deputy Speaker. Can the hon. Gentleman say whether, at that end of the spectrum, it would be better for the inspector to have discretion as to whether to serve the notice?

Colin Breed (Shadow Minister, Environment, Food & Rural Affairs; South East Cornwall, Liberal Democrat)

Broadly, yes. The discretion should be with the officer who is confronted with each individual situation. In general, the desire of such inspectors is to issue an improvement notice when it is clear that matters can be resolved over time if the conditions in which the animal is kept are improved. Bearing in mind that inspectors will deal with a wide spectrum of cases, compulsion is not helpful to them in gaining people's trust and co-operation and working with them.

Bill Wiggin (Shadow Minister (Agriculture & Fisheries), Environment, Food & Rural Affairs; Leominster, Conservative)

If the inspector is of the opinion that a person is failing to comply with clause 8, that means that the inspector has had the opportunity to make a judgment. He must then issue the notice to improve. He does not have to issue such a notice if he believes cruelty is taking place. In that case, he must prosecute. He does not have to issue an improvement notice if he does not believe the person is in default of clause 8(1). The freedom of choice is available to the inspector. That may help the hon. Gentleman.

Colin Breed (Shadow Minister, Environment, Food & Rural Affairs; South East Cornwall, Liberal Democrat)

I wish it did. We are considering a range of cases, and some are more subjective than others. We on the Liberal Democrat Benches believe that giving reasonable latitude and discretion in the issuing of a notice would be a more sensible approach than compulsion.

Greg Knight (East Yorkshire, Conservative)

Should there not, though, be a provision to challenge the issuing of a notice? There may be a case where the inspector takes one view, and a vet who knows the animal takes another. Rather than subject the owner to the risk of costs being awarded against him if he goes to court, should there not be some provision through which to challenge the issuing of a notice?

Colin Breed (Shadow Minister, Environment, Food & Rural Affairs; South East Cornwall, Liberal Democrat)

That would cause the situation to escalate even further. If it is possible to challenge whether the notice should have been issued in the first place, the situation becomes unnecessarily complicated. Do we not trust the judgment of those who go and inspect the situation on the ground, the circumstances of the animal and the circumstances of the person who is likely to be issued with the improvement notice or prosecuted? We know that some people are negligent, cruel or passively delinquent in the way they look after an animal. Introducing an element of compulsion will not necessarily serve justice or provide the flexibility and discretion that inspectors need. I therefore support the original wording "may".

Bob Spink (Castle Point, Conservative)

I do not want to rain on anyone's parade. Broadly, clause 8 is a good clause and is improved by the amendment tabled by my hon. Friend Bill Wiggin. Subsection (2) highlights the fact that an animal's needs include the need for a suitable environment and a suitable diet. Subsection (4) exempts the humane destruction of the animal, but makes no comment about the transport of animals for eventual destruction—for instance, the transport of farm animals abroad to be destroyed in very unsuitable and distressing conditions, where their environment is certainly not conducive to their welfare and their diet is nil.

Sylvia Heal (Deputy Speaker)

Order. The hon. Gentleman is going wide of the amendment under discussion.

Bob Spink (Castle Point, Conservative)

Thank you, Madam Deputy Speaker. Can the Minister find a way to address that issue in the context of the clause?

Peter Ainsworth (Shadow Secretary of State for Environment Food & Rural Affairs, Environment, Food & Rural Affairs; East Surrey, Conservative)

My hon. Friend should be aware that the Bill does not apply to farm animals, which is perhaps why Madam Deputy Speaker called him to order.

Bob Spink (Castle Point, Conservative)

I take that advice.

Clause 8(2)(c) calls for the animal

"to be able to exhibit normal behaviour patterns".

Does that mean that an inspector could object to the extreme use of an electric shock collar on an animal and issue an improvement notice to prevent that? Is that clarified in the Bill?

Bill Wiggin (Shadow Minister (Agriculture & Fisheries), Environment, Food & Rural Affairs; Leominster, Conservative)

The extreme use of an electric shock collar would be deemed to be cruelty, in which case the inspector would proceed immediately to prosecution.

Bob Spink (Castle Point, Conservative)

Having received those clarifications, I am happy to draw my remarks to a close and hope that I can support the new clause with amendment (a).

Question put and agreed to.

Clause read a Second time.

Amendment proposed to the proposed new clause: (a) in line 2, leave out 'may' and insert 'must'.—[Bill Wiggin.]