Clause 2 - ''Protected animal''

Animal Welfare Bill – in a Public Bill Committee at 11:15 am on 17th January 2006.

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Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs) 11:15 am, 17th January 2006

I beg to move amendment No. 105, in clause 2, page 2, line 5, leave out 'or' and insert 'and'.

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to discuss the following amendments: No. 106, in clause 2, page 2, line 6, at end add—

'(2) In this section, ''temporary basis'' means an occasion when the care of and responsibility for a ''protected animal'' passes from one person, or persons, to another person, or persons, by mutual consent.'.

No. 107, in clause 2, page 2, line 6, at end add—

'(2) In this section, ''wild state'' includes animals which—

(a) usually live independently from man in local habitats,

(b) have been released from the control of man,

(c) are no longer dependent on man to satisfy their welfare needs,

(d) can come and go of their own accord, or

(e) are ''wild animals'' that fulfil the criteria in this subsection and have been captured in the interests of animals control.'.

Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs)

This amendment has been suggested by some people and it is designed to avoid the application of offences under the Bill to animals that live in a wild state, but that are also of a kind that can be domesticated in Britain.

As the Bill is drafted, it is not clear whether such animals will be covered. A strong case can be made for their exclusion from the Bill because they can present a danger to human health that must be prevented. For example, a restaurant owner might wish to use rodenticides to prevent rats from entering the restaurant and endangering human health. However, because rats can be domesticated, the restaurant owner could be accused of committing an offence under clause 4(1), which would seem unreasonable given the circumstances of his actions. The amendment would clarify the situation because it marries the provision that an animal is not living ''in a wild state'', with the provision that it is

''under the control of man''.

Moreover, the amendment would ensure that animals that live wild, despite their possible domestication, remain outside the scope of the Bill. I suspect that the amendment very much does what the Government want it to do, and I hope that my drafting is sufficient to ensure that they take it very seriously.  

Amendment No. 106 seeks to clarify the expression ''temporary basis'' in clause 2(b). It is simply not enough to expect the courts to interpret what constitutes a state of temporary basis without some guidance in the Bill. The amendment specifies the circumstances that can be defined in law as a temporary basis. That guidance would help the judiciary if the term was tested in the courts.

The amendment places an emphasis on both people, or on both parties in the case of groups or organisations, to consent mutually to the change in control of the protected animal. It also makes it explicit that when control of an animal is handed over to another person on a temporary basis, that person becomes legally responsible for that animal. That would ensure that, in the event of a prosecution, it would be clearer to the court who was in control and responsible for an animal, and animals could not be placed under the control of a person or party without their knowing.

Amendment No. 107 intends to clarify the meaning of ''wild state''. The Bill does not contain an interpretation section, so the courts will require guidance on what constitutes a wild state. Consequently, legal problems could arise when conservationists or gamekeepers release animals back into their natural habitats, or when wild caught animals are caught in snares.

We do not want people who rear endangered species to be prosecuted for replenishing stocks of indigenous animals on the basis that, by releasing them, they are in effect violating their duty to ensure the welfare of the animal. Nor do we want gamekeepers to be prosecuted for releasing their game birds into the wild. When the Bill was first drafted, the EFRA Select Committee determined that gamekeepers should not continue to be responsible for taking reasonable steps to ensure the welfare of game birds once they have been released into the wild.

The amendment also makes it clear that animals released into the wild must be released into an indigenous local habitat. In doing so, it would prevent keepers of non-native animals from releasing them from their control into English and Welsh habitats. Furthermore, specifying the definition of ''wild state'' in the Bill would prevent future regulations from defining ''wild state'' differently and would ensure legal consistency.

Photo of Norman Baker Norman Baker Shadow Secretary of State for Environment, Food and Rural Affairs

I am not entirely convinced that amendments Nos. 105 and 107 are very helpful to our consideration of the Bill. They may be well intentioned, but they may have a deleterious and counter-productive consequence. Amendment No. 105, which would replace ''or'' with ''and'', would weaken the Bill by requiring every condition, rather than simply one of them, to be met. That raises the barrier against any action, and therefore reduces the status of a protective animal.

Nor is it clear what would happen if an animal had ceased to be under the control of man and was living wild. How would something that had escaped from a circus, for example, be dealt with?

Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs)

We heard the example of the lions in Grimsby, but it is very important that people do not release lions in Grimsby. That is what the amendment seeks to prevent.

Photo of Norman Baker Norman Baker Shadow Secretary of State for Environment, Food and Rural Affairs

Animals are very intelligent and can escape—the hon. Gentleman told us about the octopuses—and we must take that into account.

Amendment No. 106 makes a sensible point. It is fair to seek clarification of what ''temporary basis'' means, and I hope that the Minister will clarify the term for the record this morning.

I am also unhappy with amendment No. 107. My assumption—perhaps the Minister will clarify this point—is that a game bird that has been kept in a cage is a protected animal. That is what he told me on Second Reading last week. Presumably it is no longer a protected animal when it is released. That is very clear, and does not require further changes to legislation. The amendment would muddy the waters. Under its proposed new clause 2(d), animals

''can come and go of their own accord''.

How does that deal with pets such as cats that wander in and out of cat flaps? My cats certainly come and go of their own accord, but I want them to be protected, so I am afraid that I cannot support the hon. Gentleman's amendments.

Photo of Shona McIsaac Shona McIsaac PPS (Rt Hon Alun Michael, Minister of State), Department of Trade and Industry

As has been said, I agree that the insertion of the word ''and'' instead of ''or'' means that to be protected an animal must satisfy the criteria set out in all three paragraphs, rather than just one; that would reduce the number of animals that would be protected, so the amendment is not suitable for inclusion in the Bill.

As to the purpose of amendment No. 106, clarifying the term ''temporary basis'' might be helpful. Perhaps the Minister could consider that. However, the attempt in amendment No. 107 to redefine the term ''wild state'' does not work, as the hon. Member for Lewes said. When I read the definition, I thought of the three cats that I cannot say I owned, because they were fairly independent beasts—sadly they are no longer with us—and that came and went of their own accord. Nobody could have said that they were under my control. There is confusion in that attempt to redefine the term ''wild state'' and we should not support it.

Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs)

I take the point, and there is a concern about animals such as cats, which come and go. If the cat had been hit by a car, or required a vet, I think that the hon. Lady would have paid for it; she would have taken responsibility for her animals. The fact that she did not seek to constrain them does not mean that she was not responsible for them. We are trying, I think, to define an animal for which she is responsible, rather than one for which she is not. If she found a rat on her doorstep in a very unwell condition, she would not necessarily react by paying a vet's bill for it, whereas she would have done that for one of the cats in the same condition, because it was her cat. That is what we need to identify: whether the animal is wild or not.  

Photo of Shona McIsaac Shona McIsaac PPS (Rt Hon Alun Michael, Minister of State), Department of Trade and Industry

I take the hon. Gentleman's point, although in my time I have taken a diverse range of species to the vet, after finding them injured. I do not want to go down that route, however. I feel that the amendment will reduce protection. It is too broad in meaning.

To return to amendment No. 105, it would include animals that escaped, rather than being released, from circuses, and that brings me to the four lions that escaped from Chipperfield's circus and roamed around Grimsby. I know that the hon. Gentleman is incredulous at that story, but my hon. Friend the Member for Sheffield, Hillsborough (Ms Smith) will confirm that it happened. When we reach the circus amendments, I shall probably reveal the whole story of what happened there. Amendment No. 105 would have had an interesting effect in the case of the lions wandering around Grimsby.

Photo of Paddy Tipping Paddy Tipping PPS (Rt Hon Jack Straw, Secretary of State), Foreign & Commonwealth Office

I want to pursue a matter that the hon. Member for Lewes has raised and that was also raised on Second Reading, which has real relevance to the shooting industry: the breeding of game birds, such as pheasants, in cages. We may have an opportunity later to discuss intensive breeding of such birds, but the question of the release of those birds into the wild is important. Birds are cared for by gamekeepers and put into release pens, as the hon. Gentleman said, and at some point they are released into the wild. However, even when they are in the wild, gamekeepers have some responsibility for them in the early days. Some supplementary feeding takes place, for example. The Minister discussed that point on Second Reading. I hope that he will clarify matters; if the Government are in favour of shooting, it is important that gamekeepers should know how they can act properly without the risk of prosecution.

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

I beg your indulgence, Mr. Gale, and that of the Committee, if I take a while to go through some of the issues. It is right to do so, not least because this is one area of the Bill where there is scope for interpretation by the courts. Our intentions in clause 2 are explained quite clearly in the explanatory notes. Under the clause, an animal will be ''protected'' by the cruelty provisions of the Bill if it is of a kind that is commonly domesticated in the British Islands, or it is under the control of man or it is not living in the wild.

As a number of hon. Members have already commented, amendment No. 105 would severely limit the Bill's application. The hon. Gentleman may not have appreciated that as a matter of drafting style it would have the effect of making each of these three conditions a prerequisite. So for the Bill to apply, the animal would have to be of a species commonly domesticated in the British Islands, and under the control of man, and not be living in a wild state. I suspect that that was not his intention. I believe his aim was that the Bill should cover species that are commonly domesticated, and species that are not commonly domesticated but that are under the control of man and not living in a wild state.  

Again, I have to disagree with what I believe are the hon. Gentleman's intentions on this point. The third condition in clause 2 is intended explicitly to address animals which are not under the control of man, but which are not living in a wild state either. Several examples of this were given in the explanatory notes. If an animal from a non-domesticated species escapes from a zoo or a circus, it cannot be said to be living in a wild state; and it would be unfortunate if by virtue of its having escaped the control of man, it ceased to be offered the Bill's protection.

The underlying logic of this whole clause is that, if a person has taken an animal, rendered it under his control, and thereby rendered it incapable of fending for itself in the wild, the animal should be offered the protection of this Bill. That applies whether the animal itself has been taken under man's control, or whether the particular kind of animal has been collectively rendered dependent on man. If any of those animals regain their wild state, we can legitimately say that they are beyond the scope of the Bill. Until that point, however, we believe that a person who inflicts unnecessary suffering on domestic animals or animals that have been under the control of man and so are unlikely to be able to fend for themselves should be guilty of an offence. I hope hon. Members will agree.

Let me give a couple of examples. If a fox is released from a sanctuary and has only briefly been in the custody of man, perhaps for a day or two, then it is likely to be considered to be in a wild state as soon as it is re-released. [Interruption.] I will raise my voice for a while. It will probably not have become dependent on the sanctuary and those who release it should not be accountable in law for what happens to it. [Interruption.]

Photo of Roger Gale Roger Gale Conservative, North Thanet 11:30 am, 17th January 2006

If the Minister is able to proceed, he should do so. If the noise becomes too intrusive, I may have to suspend the Committee.

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

I think that it is going down again. In case hon. Members did not hear what I said over that giant kettle, I repeat: if a fox is released from a sanctuary and has only briefly been in the custody of man it is likely to be considered to be in a wild state as soon as it is re-released. It will probably not have become dependent on the sanctuary and those who release it should not be accountable in law for what happens to it. But if a fox has been in the custody of a sanctuary for many months it may not be capable of looking after itself in the wild. In that case it will need a rehabilitation programme that gradually re-accustoms it to the wild.

For the majority of that programme it should still benefit from the protection of this clause in the Bill. So if the sanctuary just casts it out and it suffers unnecessarily then an offence may have been committed. We accept that in a narrow category of cases it may be difficult to determine at what stage exactly it can be considered to be in a wild state. But if there were any reasonable doubt about whether the animal was protected, a defendant could not be convicted of this offence, given the usual criminal burden of proof. We would expect a court to conclude that, by the stage an animal was roaming widely and   obtaining its essential feed itself, it would be considered to be in a wild state.

Photo of Shona McIsaac Shona McIsaac PPS (Rt Hon Alun Michael, Minister of State), Department of Trade and Industry

I am listening carefully. Can the Minister tell us what is the status of the wild boar that escaped in the west country?

Photo of Shona McIsaac Shona McIsaac PPS (Rt Hon Alun Michael, Minister of State), Department of Trade and Industry

They escaped from a farm; attempts have been made to round them up, but they seem somewhat happier snuffling around in the woodland.

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

Without pre-empting what a court might decide, my instinct would be that if those wild boar had not been actively released but had escaped and were living happily in the wild, they would be considered to be living in a wild state. That is my guess.

Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs)

I know that the Minister means well, but he is on dangerous ground. We all know that animals that are not indigenous should not be released into the wild. The wild boar is a European animal not normally present in Britain, but it quickly adapts and becomes wild. However, it poses a huge risk to human health—no one wants to be run over by a wild boar—and it provides a vector for the transmission of pig diseases, which I know would worry the Minister.

It is important that we do not allow the release of animals into the wild, willy-nilly, no matter what the consequences might be. The Minister may want to tell us more later, or even write to the Committee; it might get him out of jail on the question.

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

I am not sure that I need to go to jail just yet. The example given by my hon. Friend was about escaped animals. The hon. Gentleman spoke about release, which is different.

The hon. Gentleman was right about the release of non-indigenous species—he has answered his own question—because it is illegal to do so without a licence under the Wildlife and Countryside Act 1981. As for the release of animals into the wild, we will be producing codes detailing best practice under the rehabilitation programme that I referred earlier. Those codes will help people to judge where the boundary will lie.

I was talking about a fox roaming widely. The fox living in the wild would be similar to a wild bird that came every day to the bird table. One could argue that feeding the bird had helped it through the winter, but the bird has always been in a wild state. For the avoidance of doubt, a wild bird would not be protected even if feeding it from the bird table had helped it to survive the cold winter months.

The hon. Member for Lewes raised the question of game birds, as did my hon. Friend the Member for Sherwood (Paddy Tipping). The matter was raised also on Second Reading. Game birds are clearly in the custody of man when in a rearing pen. They are introduced to the wild by placing them in a release pen. Methods vary, but in many cases the birds are free to fly the moment they are put in the pen. Some birds may initially spend long periods in the pen, and even after they have started to roam during the day   they are encouraged by the keepers to return at night. That ensures a guaranteed supply of food and water; it also ensures that predators cannot reach them.

We would argue that they are clearly not in a wild state at that stage. However, once they are free to roam at will for 24 hours a day and are no longer encouraged by the keeper to return to the release pen each night, they can be considered to be in a wild state and no longer a protected animal. We think that we have struck the right balance. A keeper should be held accountable in the early stages for ensuring that the birds do not suffer unnecessarily. However, once he is trying to ensure released pheasants do not stray beyond the boundaries of his shoot by providing food at dispersed sites round his land, the birds are in a comparable position to pheasants on the same land that have never been in the custody of man. I hope that I have clarified the position on the rearing of pheasants for my hon. Friend.

I shall deal next with amendment No. 107. We should not try to define ''wild state'' in the Bill. It is rather like the notion of ''control'' in clause 2. The term is widely understood, and in the overwhelming majority of cases it will be clear to anyone whether an animal is wild. I agree that animals that are in transition from relatively long periods of being in the custody of man to the wild state raise certain issues, but I firmly believe that it is preferable to trust the courts to exercise their discretion on the matter than to pin down an exact definition in the Bill. There is a risk that situations that members of the Committee have not contemplated, but which we would want to catch, could be omitted, and vice versa.

In respect of the amendment, I assume that the hon. Member for Leominster means ''wild state'' to include animals that meet the first four criteria or the last criterion. The drafting would need to be amended to achieve that aim.

Amendment No. 106 attempts to define the idea of temporary control. The notion of control, especially temporary control, has been introduced into the Bill to replace the notion of captive animal, which was used in an equivalent context in the Protection of Animals Act 1911. The courts have interpreted the phrase ''captive animal'' narrowly, so that mere temporary inability to get away from a human does not make it captive. They have held that a further act of dominion over the animal is required to make it captive.

The Bill will widen the scope of the 1911 Act. Under the definition in clause 2 of a protected animal as one temporarily under the control of man, capturing an animal would bring it under a person's control. For example, if a person catches a wild bird and holds it still so that it cannot get away, it is temporarily under his or her control under the Bill but it might not have been considered captive under the 1911 Act.

The hon. Gentleman also used the example of animals caught in a trap. The Bill widens the scope of the legislation to mean that an animal that is caught in a trap will come within the scope of the Bill, and rightly so. People expect animals that are caught in   traps to be treated or dispatched humanely. In those circumstances, if unnecessary suffering is inflicted on an animal we want the person who inflicts it to be guilty of an offence, as I hope hon. Members agree.

The amendment would exclude a wild animal that temporarily came within the control of man, as it would be a precondition that it had been in the control of another person previously and that would be a backward step from the 1911 Act. I therefore urge the hon. Gentleman to ask leave to withdraw the amendment.

Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs)

The Minister made several points. To judge from his closing comments, we are not too far apart on the matter. Failure to recapture animals is tantamount to release, therefore I think that he is wrong in respect of the wild boar. He said that he would issue a code of conduct on the release of animals back into the wild, which is very helpful, and people will be grateful for that. I hope that the code will be issued soon.

We have not completely covered the poisoning of rats, but I think that common sense will prevail.

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

I apologise for not responding to the hon. Gentleman's point about rats. There is a distinction between a type and a species: wild rats are wild, therefore they are not covered by the Bill. Domesticated rats are a different type because they have generally been bred in captivity for many generations. I hope that will help the hon. Gentleman in terms of the definition and the distinction between different types of animals rather than species.

Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs)

I am grateful for that intervention. When the courts have to decide whether a rat or any other animal is wild they can look at the Minister's comments, which were very helpful. The colour of the rat alone is presumably not enough to decide whether it is wild, but given his assurance about the code of conduct the Minister has satisfied me that he has given much thought to the problems with the definitions which I identified, and his comments are on the record. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 ordered to stand part of the Bill.