Clause 8 - Duty of person responsible for animal to ensure welfare

Animal Welfare Bill – in a Public Bill Committee at 1:00 pm on 19th January 2006.

Alert me about debates like this

Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs) 1:00 pm, 19th January 2006

I beg to move amendment No. 88, in clause 8, page 4, line 17, leave out ‘in all the circumstances’.

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to discuss amendment No. 128, in clause 8, page 4, line 19, leave out

‘the extent required by good practice’ and insert ‘an appropriate extent’.

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

The thought of obliterating the Committee is far from attractive.

Amendment No. 88 is a probing amendment that seeks to clarify what might be considered an unnecessary phrase in legislation. “In all the circumstances” is not necessary, because it is already covered by the previous phrase about reasonable steps. Moreover, the term might provide a suspected offender with a legal loophole that could be exploited in court, and we should not want that to happen.

For instance, if a person purchases an animal such as a baby boa constrictor, they will need to provide it with a suitable environment, as detailed in subsection (2). When they purchase the boa constrictor, it may be quite small, and its welfare needs easy to provide for. However, when the snake grows bigger, the owners may not be able to provide fully for the snake’s welfare needs. If those circumstances were considered in a court of law, someone who had possibly committed a welfare offence might be found not guilty on that basis. Ignorance is not a suitable defence, and I hope that the Minister will clarify the matter.

I have been advised on amendment No. 128 by the RSPCA, and on this occasion I share its concerns that the term “good practice” would be ineffective until defined in future secondary legislation. The Bill makes no reference to what constitutes good practice, and that might pose a problem in a court of law. To interpret laws, courts must have clear directions, and while we wait for good practice codes and regulations   to be enacted, there might be inconsistencies in interpreting the law. What constitutes good practice could be interpreted differently by different courts. The amendment would give the courts discretion to examine the circumstances of each case, rather than feeling bound by the undefined term “good practice”.

Photo of Angela Smith Angela Smith PPS (Yvette Cooper, Minister of State), Office of the Deputy Prime Minister

I fail to understand why “an appropriate extent” is any less subjective than “good practice”. Once good practice is determined, it offers an objective measure for the courts to use. Surely, “an appropriate extent” offers too many get-out clauses in the courts.

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

Although the hon. Lady is always welcome to intervene, had she paused for a moment I would have finished my closing comments as follows: the expression “an appropriate extent” would transcend any future code that might seek to define “good practice” because it is more flexible and adaptable to different circumstances. I hope that that answers the hon. Lady’s question and that the Committee will accept the amendment.

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

Although the hon. Gentleman said that these are probing amendments, they have merit.

Amendment No. 88 would delete “in all the circumstances” which would make it easier to apply the provision in the courts. It is as simple as that and the amendment certainly has merit.

Amendment No. 128 is also important because the term “good practice” is essentially subjective and its inclusion could cause evidential debate about the meaning and could lengthen unnecessarily any court case. A better term to use might be “an appropriate manner”. Will the Minister reflect on that and discuss with his officials whether the wording could be improved so that it is easier for the courts to show that a welfare offence has taken place?

Photo of Philip Hollobone Philip Hollobone Conservative, Kettering

I agree that the words “good practice” at the end of subsection (1) are subjective. The term may be clear and of use to people in certain industries—for example, farmers, pet shop owners and so on—but its meaning will not necessarily be apparent and consistent to the average person on the street. The combination of “lawful purpose” and “lawful activity” in subsection (3) implies that an industry that uses animals sets the standard and could argue that as their activities are lawful and not illegal a lower standard of welfare is acceptable for the animals kept for that purpose. That would negate DEFRA’s previous statements that the introduction of the welfare offence will successfully deal with those animals whose welfare needs are unlikely to be met when they are used commercially.

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

With reference to the hon. Gentleman’s comments, these concerns about circumstances were also raised yesterday on another clause and I assured the Committee that they were not a get-out clause. The point in this clause is that the Government believe that it would be unreasonable and disproportionate to have an absolute welfare standard that does not take account of the circumstances in   which an animal is kept. The Bill is based on the central premise that it is appropriate for people to keep animals for a variety of purposes, but that minimum standards should be set for the behaviour of people towards those animals. There is a balance to be struck between the interests of animals and humans, and different circumstances will apply in different situations. In clause 8, the word “circumstances” is important to that approach; I shall give an example.

A pet hamster in a cage may not have the same opportunities to express its normal behaviour as one that is running around in the desert, its natural habitat. If the welfare offence were applied as an absolute test without regard to the animal’s circumstances, there would be a risk that just keeping a hamster in a cage would breach the welfare offence. We believe that it is right that the Bill allows for welfare to be assessed in the context of the purpose for which the animal is kept and the activity undertaken in relation to it, but not as a get-out clause.

Photo of Shona McIsaac Shona McIsaac PPS (Rt Hon Alun Michael, Minister of State), Department of Trade and Industry 1:15 pm, 19th January 2006

I thank my hon. Friend for his example relating to hamsters. The first line of clause 8 states:

“A person commits an offence if he does not take such steps as are reasonable”.

Nobody would suggest that it was reasonable to recreate a desert environment in a child’s bedroom, for example, to offer a hamster its natural habitat, so surely the issue is covered in the clause.

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

I still think it important to add to “reasonable” the fact that there may be different circumstances. I do not believe that the qualification will lead to some animals being kept in unacceptable conditions. To refer to the example cited by the hon. Member for Leominster (Bill Wiggin), if a boa constrictor outgrew its environment, it is likely that a court would consider that the fact that it had once been small was not a defence. Subsection (2) makes it clear that

“its need for a suitable environment” should be taken into consideration by the court. I am about to come to good practice, and good practice for a snake would include reasonable space.

Amendment No. 128 deals with good practice. It may help hon. Members if I explain why we changed—

Photo of Justine Greening Justine Greening Vice-Chair (Youth), Conservative Party

There is a difference between good practice and appropriateness. One implies a potentially separate body establishing what good practice is; the other implies some responsibility on the part of the individual to assess for themselves what is   appropriate. That is one of my concerns about the use of the term “good practice”. It should be partly down to the individual to assess appropriateness, because only they can really judge the circumstances in which they are taking care of an animal’s welfare.

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

The hon. Lady makes my point for me by acknowledging that the term “appropriate” is far more subjective. I do not want the Bill to allow individuals to make judgments for themselves about the appropriate way of looking after an animal. That is exactly why we changed the wording. The Environment, Food and Rural Affairs Committee, during its pre-legislative scrutiny of the Bill, agreed that, as “welfare” is a neutral term, the Bill should clarify that it is necessary to ensure good welfare. We accepted that recommendation and the Bill was redrafted; otherwise there could have been uncertainty as to the intention. That is why we included the provision about doing all that is reasonable to meet the needs of an animal and meeting its needs to the extent required by good practice.

I agree with the hon. Lady—this is where I disagree with my hon. Friend the Member for Cleethorpes (Shona McIsaac)—that the term “appropriate” is far more vague, subjective and ill defined than “good practice”. I hope that, by providing the example of the cat code, I have given members of the Committee some idea of how the codes of good practice will help to inform the decisions of the courts and help with recognition of what is good practice. That is preferable to the term “an appropriate extent”, which is highly subjective, as the hon. Member for Putney (Justine Greening) acknowledged.

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

My hon. Friend kindly provided the draft cat code, which I have read and which includes information on not creating a fat cat by feeding it too much. My concern relates to the timing. If the codes of practice are not available when the Bill is enacted, case law may define good practice, and the codes may say something else. I hope that the Minister takes that point.

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

I hope that the Bill passes swiftly through the House and on to the statute book, but I acknowledge that, unfortunately, it will not be possible to draw up by then a code of practice for every species of animal that might be kept by human beings. That does not detract from my point. Even in the absence of a completed code of practice, it would be easier for courts, welfare experts or scientists to argue what is “good practice” than what is “appropriate”, which is a far vaguer and—as the hon. Member for Putney acknowledged—more subjective term.

Amendment No. 128 would go against the recommendation of the EFRA Committee to refine the use of the neutral term “welfare”. It would leave the courts and individuals with less clear guidance as to what good welfare would be in each particular case. On that basis, I urge the hon. Member for Leominster to withdraw the amendment.

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

I want to press the Minister slightly before I make a decision on the amendment. I tried my best to follow closely what he said, and in the case of my snake, unless the Minister actually states the length of snake per length of tank in the code of practice, it will be difficult to make the code absolute and proper. We therefore want the term “appropriate extent” rather than the more general terms in the Bill. I understand where the Minister is coming from, and we want to avoid being totally prescriptive, but this part of the Bill allows the Government to be even more prescriptive, and I have some concerns about it. However, I recognise that he will do his best with the codes.

I believe that the relevant code states that a cat should be neither too fat nor too thin. That worries me slightly because that is what I would like to be, although whether I am depends on whom I invite to give their opinion—my wife is rather critical. We need the Minister to assure us that we are going to provide for the best possible standards. If he just nods, I will be happy.

Mr. Bradshawindicated assent.

Amendment, by leave, withdrawn.

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

I beg to move amendment No. 204, in clause 8, page 4, line 20, after ‘needs’, insert

‘, regardless of the circumstances in which it is found.’.

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to discuss the following amendments: No. 90, in clause 8, page 4, line 21, leave out ‘a suitable environment’ and insert

‘an adequate and comfortable living space’.

No. 192, in clause 8, page 4, line 26, leave out subsection (3).

No. 129, in clause 8, page 4, line 28, leave out paragraphs (a) and (b) and insert

‘, an animal’s environment and circumstances.’.

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

The amendment is essential because the needs of an animal are the same, irrespective of the circumstances in which it is kept. The clause sets out five points that should be taken into account in all circumstances: the need for “a suitable environment” and “a suitable diet”, the ability to “exhibit normal behaviour” and the need “to be housed” and the need

“to be protected from pain, suffering, injury and disease.”

If we do not include the words “regardless of the circumstances”, the Bill might create a loophole for people who use practices that would otherwise be captured; it would create a lower welfare standard.

We must say from the outset that the standards in the clause are applicable to all the protected animals, regardless of the circumstances in which they are kept. I acknowledge that we might have to be careful as regards, say, police horses and the training of police dogs, but if we are not explicit, a loophole might be   created. I fear that that will be exploited by those who knowingly use cruel practices, particularly in training their animals.

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

I suspect that we are going to receive a similar answer on these amendments. Amendment No. 90 will serve to clarify the ambiguity that the current wording presents. The term “suitable environment” is problematic because the Bill does not specify what constitutes a suitable environment. Although I understand that clause 10 makes provision for establishing regulations, we need to know what, in the Bill, the term is intended to mean. The dictionary defines an environment as

“the objects or the region surrounding anything” and

“the conditions under which any person or thing lives or is developed; the sum-total of influences which modify and determine the development of life or character”.

That is quite ambiguous, too, and could present the judiciary with a problem in interpreting the law. We would all like to ensure that animals have comfortable surroundings. However, the only suitable environment for some animals would be their natural habitat. The Minister talked about hamsters.

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

I sympathise with the direction in which the hon. Gentleman wishes to travel, but I am concerned that his definition is narrower than the Government’s wording. The term “suitable environment” would cover temperature, for example. I am not convinced that

“adequate and comfortable living space” would deal with that issue. It is to do with the physical environment. The term used in the Bill seems more satisfactory.

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

The hon. Gentleman has a valid point. I suspect that the Minister will tell us that this matter will be taken care of in the codes of practice—I would not be at all surprised if that was the case. With that in mind, I had a look at the draft cat code, which states:

“Your cat must have fresh water available at all times.”

The phrase “at all times” is pretty clear. Of course, if a cat is being taken to the vet in a basket, or even in the back of an RSPCA van, it cannot necessarily have water available at all times. When drafting the codes, it will be extremely difficult to ensure that they are as comprehensive as possible.

Amendment No. 129 would ensure that this important clause would be interpreted more widely than the present wording permits. In the present version, the circumstances to which it is relevant to have regard when applying subsection (1) are “lawful purposes” and “lawful activities”. The amendment widens that to include the animal’s environment and circumstances. If we take a single snapshot of how any animal is treated, we could find cause for complaint in our activities. One could argue that if someone places a cat in a box to take it to the vet, an offence is taking place while that cat is in the box. Nevertheless, the broader picture tells us that no offence is taking place and this amendment would make that explicit.

Photo of David Drew David Drew Labour, Stroud

I want specifically to speak to amendment No. 192, which is in my name. I tend to take the view, expressed by my hon. Friend the Member for Cleethorpes and the hon. Member for Leominster, that we wish to clarify the terms by ensuring that they are as comprehensive as possible, rather than by narrowing them. I am afraid that we will seemingly be rehearsing positions for much of the rest of the proceedings.

This issue relates back to the draft Bill, which featured different wording. Subsection (3), which I wish to remove, has been added since the draft Bill was considered. The point is important because it relates to the basis on which somebody’s defence will be built if they are accused of cruelty towards an animal. The amendment is partly about consistency in animal protection standards. As far as the RSPCA is concerned—I am not paraphrasing the RSPCA completely accurately, but I think that this is a fair thing to say—it could drive a coach and horses through the Bill if someone argued that the reason they were keeping an animal was different from the norm. They might be keeping an animal to train it or for purely commercial reasons.

According to subsection (3), that at least gives them the excuse to treat that animal in a different way. Will the Minister explain why there has been a redefinition? Something has been included that was not in the draft Bill. Is the provision not somewhat dangerous, in that it gives people an opportunity to find an excuse for different gradations of how an animal should be treated? Effectively, we are talking about a second-class state of protection for certain animals.

Photo of Shona McIsaac Shona McIsaac PPS (Rt Hon Alun Michael, Minister of State), Department of Trade and Industry 1:30 pm, 19th January 2006

Would my hon. Friend acknowledge that some people involved in the training of animals use what most of us regard as quite cruel practices, but justify them by saying that they are necessary for the activity that the animal is trained to undertake?

Photo of David Drew David Drew Labour, Stroud

I largely agree; that is the point I am trying to make, in a nutshell. My hon. Friend put it more concisely than I have. I would go slightly further inasmuch as whether the provisions have been worded properly relates to how the courts determine matters. The last thing I want is for there to be a whole rash of cases where an excuse is made that the subsection is a justification for not treating animals in the normal way.

The provisions represent, in practice, the teeth of the Government’s argument concerning duty of care. If they are to bite—to continue that analogy—they must be made comprehensive, foolproof and fair. It will not be fair if the subsection makes possible an opportunity for those who treat animals in a certain way for a specific purpose to be subject to a different gradation of the law. No doubt the Minister will have something to say about that.

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

I have some sympathy with the hon. Gentleman’s point and hope that the Minister will reflect on it seriously. The clause is important—one of   the most important in the Bill—so we must ensure we get it absolutely right. Otherwise, we shall undo a lot of the Committee’s good work.

There appears to be an inconsistency in the clause, which follows the inclusion of subsection (3) to which the hon. Member for Stroud (Mr. Drew) referred. We passed clause 3, which deals with responsibility for animals. It said that a reference to someone “responsible for an animal” meant that they were responsible whether that responsibility was permanent or temporary. We agree with that. We then considered clause 4, which dealt with unnecessary suffering in order that those responsible, whether temporarily or otherwise—the Minister gave some good examples—could be guilty of causing unnecessary suffering.

However, this clause contains a qualification that appears to limit those to whom the duty of care applies—at least that is how I read it. It should apply to everyone whether or not they hold an animal for a lawful purpose, but it muddies the waters and provides an inconsistency. It raises the possibility of an unwelcome and successful defence, which no one would want. The Bill would be better if subsection (3) were deleted. I am keen to understand why the Minister feels it should be included.

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

This is slightly reminiscent of our debate on Tuesday about the cruelty offence, particularly the issues concerning police horses and guard dogs. The Government are trying to make it clear that it would not be proportionate or reasonable to have an absolute welfare offence that did not take into account the circumstances of both the animal and the person responsible. That is the same whether one is talking about the welfare or the cruelty offence. Let me give a concrete example of why that is case in relation to welfare: farmed animals are kept to produce food. As a society, we believe that they should be kept in a manner that provides for their essential welfare needs, and codes of practice and secondary legislation cover most farm animals. However, I am not sure that members of the Committee would say that the welfare standards of farmed animals needed to be the same in all circumstances as those of pets, although some would say that they should be.

We take into account the purpose for which an animal is kept when we decide the appropriate legal standards, which is why it is absolutely right that their welfare should be assessed in that context. However, like the cruelty offence, that is not, to quote my hon. Friend the Member for Stroud, an excuse or get-out but something that a court may want to take into consideration.

Photo of Greg Mulholland Greg Mulholland Shadow Minister (International Development)

That is a fair point, so why not specify farm animals, rather than having a clause that we fear would lead to a serious watering-down of the welfare offence, which the Committee agrees is the best part of the Bill?

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

Because to do so would still create an absolute measurement of the welfare offence, which would trap us into not being able to apply considerations of circumstance and proportionality.

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

The Minister referred to the qualification in clause 4—he does not like the phrase “get-out clause”—which in a sense is a defence for those in the circumstances that the Minister is trying to deal with. Would not that give the necessary defence without further qualification in clause 8 of the type he referred to? In what circumstances would it be possible not to deliver the five freedoms in clause 8(2)? In what circumstances are they necessary? How can they possibly be deemed to be unnecessary?

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

I was coming to that. The hon. Gentleman is making my point, perhaps better than I have done, which is that for the purposes of the Act the person would still have to meet the needs of the animal, which are outlined in subsection (2). It allows the courts to take account of circumstances and proportionality when deciding whether an offence has been committed, rather than there being an absolute standard.

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

My hon. Friend keeps going on about the circumstances, and I admit that they are mentioned in subsection (1). Why, then, is he so resistant to amendment No. 204?

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

If I understand my hon. Friend rightly, she is urging us to adopt a welfare offence that is absolute, regardless of circumstances.

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

May I give my hon. Friend an example? An elephant is the same whether it is kept in a circus, a zoo or a sanctuary. That is why we must make it clear that the welfare standards should be absolute for that animal, or else different welfare standards will apply to one species.

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

My hon. Friend misses the point. This not a get-out or an excuse, it is about the circumstances and conditions that a court may take into account when considering whether the welfare needs of an animal have been met.

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

So, if we take the example of a circus elephant or a large cat such as a tiger or a lion, subsection (3) would not provide a get-out for using sticks on those animals to train them to perform.

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

I am saying that, yes. My hon. Friend is wrong if she implies that arguing that what one is doing is lawful is consistent with the welfare offence. That is not the case. I suspect that we will debate circuses at some length later in our proceedings. I am not sure that I agree with her that every different species of animal needs the same sort of welfare in all circumstances. We would expect different sorts of welfare for a farmed llama from those for a llama in a zoo or a llama in a circus. She is urging an absolute welfare standard that takes no account of the circumstances, either of the animal or the person concerned.

Photo of Justine Greening Justine Greening Vice-Chair (Youth), Conservative Party

I am concerned that that seems entirely to contradict our previous discussion on good practice. The discussion seems to be validating exactly the position that many Members took which is that appropriateness would be far more flexible and give the Minister the flexibility that he says we require.

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

What we are talking about throughout the whole of the Bill is securing minimum welfare standards for our animals. We can continue to have an argument about whether we think “good practice” or “appropriate circumstances” is stronger. I happen to believe that “good practice” is stronger. But we are trying not to set an absolute welfare limit, regardless of the circumstances, either in which the animal is kept or of the human beings dealing with it.

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

If the circumstances in which the animal is kept are such that the welfare standard cannot be met, surely the circumstances of that animal should be changed rather than our having a lower welfare standard. That is what the clause could end up doing.

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

No, I do not accept that at all. I could not have been clearer on this Bill. Both in pre-legislative scrutiny and on Second Reading, it was made clear that if the welfare standards of an animal cannot be met in a particular environment, that practice is banned. It will not happen. It will be challenged in court and it will stop. I do not think that I can be clearer.

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

I may be able to help the Minister. The hon. Member for Cleethorpes wanted to identify whether the treatment of the elephant should be the same wherever it was. The Minister was saying that that is not what the Government want at all. The only reason I can think of why the Government should possibly not want that is that because at some stage it may be necessary to take the llama or the elephant to the vet. While it was travelling to the vet it could not have the same environment as where it lived permanently. Is that really what the Minister is saying, or have I misunderstood?

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

When the hon. Lady said that a llama or an elephant should live in the same situation irrespective of who owned it and what type of business they were running, or if the elephant or llama was travelling to the vet—

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

Normally I would expect the vet to visit the elephant, but for the purposes of the example if the elephant was travelling, it would not be in the same circumstances and environment as it would be when it was home. I suspect that that is where the Minister wants some flexibility, which amendment No. 129 gives him.

Photo of Ben Bradshaw Ben Bradshaw Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Local Environment, Marine and Animal Welfare) 1:45 pm, 19th January 2006

If, like me, the hon. Gentleman is trying to make the point that we want good practice, not an absolute standard regardless of the circumstances, yes I agree.

Amendment No. 90 would limit the scope of the welfare offence. The court would not have to consider whether an owner or keeper had provided an animal with a suitable environment, but only whether he had provided the animal, as the hon. Member for Lewes (Norman Baker) said, with adequate and comfortable living space. Apart from adding the term “comfortable”, which is difficult to define, the amendment would exclude a court’s taking into account the absence of other aspects that had a significant impact on the animal’s welfare. For example, a dog kept in a backyard may have adequate and comfortable living space, but it would be exposed to the worst of the elements during summer and winter if the yard had no shelter. The Bill would thus fail to ensure that the welfare needs of the dog were fully met.

On amendments Nos. 192 and 129, I know that there are concerns that subsection (3) of clause 8 could give a person an absolute defence against the welfare offence, and that if someone could show that what they were doing was a lawful activity, or for a lawful purpose, they could not be found to have committed the welfare offence. That is not how subsection (3), in tandem with subsection (1), will function. As I said earlier, lawful purpose and lawful activity are circumstances to which it is relevant to have regard when applying subsection (1). Subsection (1) states that the person must

“take such steps as are reasonable in all the circumstances”,

and subsection (3) clarifies that the lawful purpose or activity should be taken into account, but that does not mean that they are an absolute defence, a get-out or an excuse.

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

Will my hon. Friend give us some examples of circumstances that would constitute lawful purpose and lawful activity?

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

I find it difficult to do that off the top of my head. One example that my hon. Friend may like to consider is how the way that a pet horse is kept differs from the way in which horses for commercial purposes are kept. Horses like to be kept together in groups. [Interruption.] No, I am suggesting that as an example that my hon. Friend may like to consider. Would she want somebody prosecuted because they kept a pet horse on its own, which is not generally how horses like to live? I am not sure that she would. I am simply trying to get across the fact that there may be different welfare considerations in different circumstances, whether one is talking about pets, farmed animals, circus animals or zoo animals, and that we should not have an absolute welfare standard.

Photo of David Drew David Drew Labour, Stroud

I apologise for interrupting the Minister on this complicated issue. I accept entirely what he says about the situation of the animal, but I am more concerned about what is done to an animal because of the reason that it is kept or owned. That is the   difficulty. I am thinking of someone who mistreats an animal but says that it was for the animal’s good because the animal is meant to do a job. Those are the circumstances that I hope we might clarify a bit more—not the location but the use to which an animal is put, for training purposes and so on. Does my hon. Friend understand what I am trying to get at?

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 I understand my hon. Friend. Some of his concerns will be met by a code of practice, or resolved by the common sense of the courts in considering whether behaviour was reasonable and proportionate, whether a lawful purpose needs to be taken into account and whether the treatment of the animal was excessive. If the treatment was excessive, the person would be likely to fall foul of the cruelty offence anyway.

Amendment No. 204 attempts to ensure that the circumstances in which an animal is found would not be relevant in deciding what its needs are. As I said, we believe that is unnecessary. As the Bill is drafted, an animal’s circumstances are not considered in such decisions. Subsection (2) explains what the needs might include. Once the needs are established, it is necessary to consider whether the person took reasonable steps to meet them to the extent required by good practice, and that will be done taking into account all the circumstances. On that basis, I urge hon. Members not to press their amendments.

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

The Minister has been battling away on the difference between absolute and flexible standards, and I have enjoyed watching him wriggle. For my purposes, I am content that we may be all right.

However, the arguments seemed to fly very much in the face of the Bill’s purpose, which is to increase responsibility for animal welfare. To some extent, choosing flexibility means that the absolute duty for animal welfare is diminished. If the Minister can live with that, it is a shame, but I understand why. The drafting of this part of the Bill is extremely difficult, and Conservative Members have done our best to give him a great deal of help. He probably ought to go away and think about the matter; when he reads what he has said today, he may want to do that anyway. Should he wish to amend the Bill at a later date, we will all be sympathetic.

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

The Minister has done a wonderful job in thoroughly confusing me as to what he is going on about, so I think that I will withdraw the amendment and go away and read what he said. I know what I am trying to get at with my amendment. As my hon. Friend the Member for Stroud said, we do not want lower standards to be applied. There is worry about training, too. In addition, the provision in subsection (3) looks like a defence and a get-out, and the Minister could give me no concrete examples in relation to that situation.

I will reflect on the wording of my amendment, but I would like the Minister to reflect on what he has said today. Let us hope that we can come up with something, in this most important part of the Bill, that will not create a lower welfare standard for some animals; I feel that the subsection could inadvertently   end up doing that. I hope that the Minister will meet me to discuss the matter in more detail. On that basis, perhaps he would like to nod—he is not paying attention.

Hon. Members:

Nod!

Mr. Bradshawindicated assent.

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

It has been a long day, I know. I just said that if the Minister agrees to meet me to talk about the clause, so that we do not inadvertently create a lower standard for some animals, I will withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 ordered to stand part of the Bill.