With this it will be convenient to discuss the following amendments: No. 154, in clause 17, page 9, line 29, at end insert
‘unless the inspector or constable reasonably believes that the animal is in serious and immediate danger from which it should be removed before a warrant under subsection (4) can be obtained and executed.’.
No. 155, in clause 19, page 11, line 1, after ‘entry’, insert ‘without a warrant’.
No. 156, in clause 24, page 12, line 30, after ‘entry’, insert ‘without a warrant’.
Clause 17 is an important one, and mine are probing amendments. The clause gives power to an inspector or constable to enter premises to deal with an animal if it is believed to be suffering, or likely to suffer if remedial action is not taken. Subsection (2) provides that the power of entry does not extend to private dwellings, or any part of a building that is a private dwelling. However, the clause goes on to deal with those premises that are not private dwellings, saying that inspectors or constables can obtain warrants to enter premises unless there is an expectation that waiting for a warrant may prolong an animal’s suffering or that immediate entry could mean that suffering would be prevented.
As I said earlier, however, subsection (2) removes private dwellings from that and I seek some clarification from the Minister. My amendments seek to include private dwellings within the clause and to put them on the same footing as public or office premises, for example. Amendment No. 154 says that one cannot enter a private dwelling without a warrant
“unless the inspector or constable reasonably believes that the animal is in serious and immediate danger”.
I hope that the Minister will note that. The corresponding amendments to clauses 19 and 24 would tidy up the provision and make reference to warrants.
It might help if the Minister were to dwell for a second on subsection (2) and spell out what he means by “private dwelling”. I take it to be the entire curtilage of a premises, but a distinction might usefully be drawn between that which is indoors, which is private in a more definitive way than that which is outside, which may still be legally private. What happens if an animal is seen in that part of a private property that is visible; for instance, in the yard or a field? What is the legal situation in that respect ?
I will regroup amendment No. 70 with the amendments under discussion at the moment. The hon. Gentleman has indicated that he may wish to vote on it separately, and I understand that.
It will therefore be convenient to discuss amendment No. 70, in clause 17, page 9, line 29, at end insert—
‘(2A)For the purposes of this Act, “private dwelling” is to mean an enclosed building, or part of a building, used exclusively for residential purposes.’.
I am most grateful, Mr. Gale. Amendment No. 70 seeks to do precisely the same as amendment No. 153, moved by the hon. Member for South Swindon (Anne Snelgrove), but in a slightly different way. We want to clarify the precise meaning of what constitutes a private dwelling.
At present, clause 17 does not specify what is a private dwelling, and the explanatory notes are not clear about it either. The Select Committee criticised that terminology, and the Government have made no change. It is therefore necessary to amend the provision so as to prevent confusion arising over the powers of entry once the Bill has been enacted.
It is important that constables and inspectors are aware of what property they can enter, especially when an animal is in distress, as tensions can be heightened and things can become emotional. For instance, an outhouse, a yard or even a garden could be deemed to be a private dwelling—they are places where animals may be in distress and require urgent help. When animals are in distress, constables and inspectors should not have to wait for warrants to enter such areas simply because they are not sure whether they are private dwellings. Amendment No. 70 would make it explicit that a private dwelling shall be regarded as being an enclosed residential building only.
This is an important debate. I look forward to hearing the Minister clarify the situation.
It is vital for organisations such as the RSPCA to have a clear understanding of what constitutes a private dwelling. Much abuse takes place in outbuildings, yards and sheds. If they are defined as part of a private dwelling, the question arises of whether a warrant is necessary. I hope that the Minister will listen carefully to the debate and will reflect on the Select Committee’s report.
We will have the opportunity to discuss the issue again when we reach clause 56(3), which defines a private dwelling. It states that a private dwelling includes
“any yard, garden, garage or outhouse which is used for purposes in connection with it.”
We may not be able to resolve that question this morning, but I hope that the Minister will talk with his officials and relevant organisations about clarifying the matter.
Thank you, Mr. Gale. I am grateful to my hon. Friend the Member for Sherwood (Paddy Tipping) for drawing the Committee’s attention to the definition given in clause 56(3). It was the subject of considerable discussion by the Select Committee in its pre-legislative scrutiny and also among officials. I hope that this does not sound classist, but the sort of judgment that I instinctively came to when trying to visualise what is meant by a private dwelling was a small terraced house, with a little garden not accessible from the street and a little tool shed at the back. That is rather different from a large rambling farmhouse with lots of outbuildings and a huge private garden. The question is: where does that private garden begin or end? Those matters are not, I suspect, easy to define, and we shall probably discuss them again on clause 56. However, I simply want to make it known that we had some difficulty in doing what the Select Committee asked for, which was to come up with a firmer definition of a private dwelling.
Amendment No. 154, tabled by my hon. Friend the Member for South Swindon, concerned powers of inspectors or constables to enter premises where they reasonably believe an animal in distress is to be found. There may be situations in which the emergency is clear, but equally there may be some in which it is only perceived. I appreciate that my hon. Friend has tried to anticipate that difficulty by using the phrase “serious and immediate danger” so that the proposed power of entry would not extend to animals that were merely likely to suffer. However, I suggest to her that immediate danger remains a matter of perception and degrees.
We do not believe that it would be proportionate to allow inspectors into people’s private homes in each and every situation in which they perceived an emergency. The Bill would become disproportionate in that case. It is clear from human rights law and from guidance that we have received from the Home Office that a proportionate solution is to require that an inspector who encounters what he or she perceives as an emergency in a private dwelling must satisfy a magistrate as to the reasonableness of that perception. I see merit in the concern that that would delay action in cases of animal suffering, but is important to bear it in mind that delay would not prevent action.
The police routinely obtain warrants to enter private premises, often in the course of investigating more serious crimes. We are not convinced that wider powers of entry are needed for animal welfare offences than for other criminal activities.
Somebody who is running a fraudulent activity from their front room is very different from someone with a horse on their premises. We are concerned about whether the shed in which such a person is more likely to keep a horse counts as part of their dwelling. For example, if they are using it as an office, it does not. There is an anomaly here.
I was not going to be very helpful; I was going to say that we shall come to the definition of a private dwelling in a moment. We are now talking about powers of entry.
I am not a great legal expert, but I believe that if a police officer were outside a private dwelling in which a person was clearly in pain, the officer would not require a warrant to make an entry. In the case that we are considering, of an animal suffering in pain, under the Bill the police officer would require a warrant.
I was going to give an example, which has been given in the past, of a dog hanging itself by its lead from a balcony. A concern was expressed that enforcement agencies would not be able to intervene in that case, in which it was unambiguously apparent that if nothing was done the dog would die. My advice is that the police and emergency services already have adequate powers under section 17 of the Police and Criminal Evidence Act 1984 to enter to prevent serious damage to property, which includes animals, in this case. They would also have a defence under section 5 of the Criminal Damage Act 1971 for any damage that they might cause to property. They currently use those powers and I am not aware that they have proved in any way deficient.
I do not think that it would be appropriate to expand those powers beyond police officers by amending clause 17. That would give powers to inspectors as well, and would risk incompatibility with our human rights obligations. It may be worth noting that the police are happy with the powers set out in the Bill.
Subsection (2) seems to suggest that no private dwellings can be entered, even with a warrant. That was the point of amendment No. 153. Subsection (2) says:
“Subsection (1) does not authorise entry to any part of premises which is used as a private dwelling.”
I seek clarification from the Minister that private premises can be entered.
Yes, they certainly can, with a warrant. If my hon. Friend looks at clause 46, that will become even clearer to her.
Amendments Nos. 153, 155 and 156 relate to the power to enter private dwellings to search for fighting animals or to inspect farm premises as well as to entry in emergencies. Clauses 17, 19 and 24 already provide for powers of entry. Therefore, there is a right to enter, and any obstruction will be an offence. That is provided for in paragraph 13 of schedule 2. Such a right to enter does not apply to dwellings, but if there is a need to enter a dwelling, again clause 46 makes it clear that a warrant can be applied for.
Hon. Members will see that clause 46 allows for the grant of a warrant to enter a dwelling not only under the first condition but also under the third and fourth conditions, if they apply. Similarly, if there is a need to use reasonable force to gain entry—for example, if there is nobody at the premises and the door is locked, or if the occupier refuses to co-operate—it is possible to apply for a warrant under clause 46 to allow the use of reasonable force to gain entry. On that basis, I urge my hon. Friend to withdraw her amendment.
Amendment No. 70, in the name of the hon. Member for Leominster, which we have now brought forward, seeks to narrow the definition of a private dwelling and thereby extend the range of premises to which entry can be gained without a warrant.
As I said at the beginning, we are well aware of the concerns relating to the power to enter private dwellings in an emergency, which are inextricably linked to our definition of a private dwelling in clause 56(3). I presume that the amendment is intended to be combined with the removal of that definition. For the benefit of those not acquainted with this issue, clause 56(3) defines a private dwelling as including yards, gardens, outhouses and garages. As the Bill requires a warrant before entry can be gained to private dwellings, the definition of a private dwelling becomes key to the scope of the Bill’s power of entry.
The definition of a private dwelling was included, as I said earlier, at the request of the Select Committee when it conducted its pre-legislative scrutiny of the Bill in autumn 2004. The choice of this definition was, as with scoping all our powers of entry, a question of balancing human rights against the concern for animal suffering. We believe that the majority of the population would consider their garden, sheds or outhouses, which may be full of tools or bicycles, to be part of their private dwelling and would not expect the police or inspectors to be able to demand entry to them without good grounds and a warrant to prove it.
I want to go into this matter in some detail, so the hon. Gentleman may like to intervene a little later.
I accept that there is concern that if an animal is suffering, or is likely to suffer, in a garden or outhouse, a warrant would still need to be obtained before entry could be gained to attend to it, which would lead to delay. I know that the RSPCA is concerned about that. However, I emphasise that powers of entry in such situations do not currently exist, even if there is an emergency and the animal is in a garden. Often the RSPCA is granted access by the owner of the premises, and we hope that that will continue to be the case, but it has no current power to enter without the owner’s consent. As has been said a number of times in our debates on the Bill, the RSPCA says that it does not want extra powers. The Bill would in future enable the police or inspectors to gain access with a warrant. That is progress—they do not have that ability at present.
Would the hon. Gentleman like to intervene now?
Yes. I am grateful to the Minister.
The Minister is talking about proportionality under human rights law, which is a proper approach to take, but proportionality suggests that a different approach should be taken to, on the one hand, an enclosed building such as a garage or outhouse, where activities may be going on and individuals would not want the police to interfere, and, on the other hand, to a yard or garden, which is by definition open to the public in the sense that people can see what is going on. Therefore, resisting entry to areas that are already visible to the public—so not private in the same sense as an outhouse or garage—is not reasonable.
I am not sure that I agree with that definition. I am not sure whether most people would consider a small, enclosed garden at the back of a terrace house to be open to the public, but I will deal with the definition in a little more detail.
One of the things that has been overlooked by those who have concerns about the definition is that the outhouses and sheds must be used for purposes in connection with the private dwelling for them to fall into the definition of “private dwelling”. If I keep my children’s toys in my garage, that is a purpose connected with my private dwelling, and the garage would be considered part of my private dwelling. If, on the other hand, I run my animal boarding establishment from my garage or from premises in my garden, then that garage or that part of the garden will not fall into the definition. That is an important part of the definition and, I hope, ought to address most of the concerns.
In passing, I would comment that there is no such thing as a standard definition of a private dwelling. In fact, most legislation does not even attempt to define it. Maybe we should not have tried, but we were asked to by the EFRA Committee. The Police and Criminal Evidence Act 1984 contains no definition for the purposes of exercising police powers. The Wildlife and Countryside Act 1981 also has no definition, nor does the Natural Environment and Rural Communities Bill, which is currently being considered by the House of Lords.
The other point to make about the amendment is the suggestion that a warrant should be necessary only where the building is used exclusively for residential purposes. We rejected that approach, because we feel that entry to a person’s home should still be subject to safeguards, even if he or she uses that home for other reasons as well. If I keep my business records and accounts in my kitchen drawer, and my children do their homework at the kitchen table, then the property is still first and foremost a home. It is reasonable to require a police officer or inspector to obtain a warrant to enter that place.
If we are inventing a new definition of a private dwelling which, as the Minister says, seems to cross over into other legislation, may I ask what discussions he has had with other Departments or what advice has been sought from them?
Clearly, if the definition of a private dwelling is established here, it could be used in court cases to run across other legislation. That could have unforeseen consequences for existing legislation, which may not be helpful in terms of, say, enforcing criminal law.
Yes, we have had discussions with the Home Office and it is content with the definition included.
The area is difficult and the Minister is clearly trying to be helpful. I want to be absolutely clear in my own mind about the situation. If the outbuildings are not used primarily for activities that would normally take place in a house, then a warrant would not be necessary. Is that correct?
That is certainly my understanding of how it would work, yes.
To follow that last point, that may be the case in terms of an outhouse, but obviously an outhouse is situated in a garden, and presumably could not be reached without going through the garden.
Behind the amendments lies the fact that, as we are all aware, acts that we want to see banned by the Bill take place in people’s houses. We seek to ensure that, if acts of cruelty or failures of duty to secure welfare take place in outhouses, sheds, gardens or garages, we can get the inspectors in as quickly as possible. The idea that that is difficult is a reasonable defence by the Minister, but the Bill later goes on to give the power to detain hovercraft, so the fact that this provision would be difficult should not be insurmountable.
The Minister’s definition is that if buildings are being used for keeping animals, they cannot be deemed to be part of a private dwelling; for example, someone has a horse that they are keeping in an outbuilding. If that is the case, I am content that we have achieved what we set out to do. We need to be sure that that is right. The minute one puts one’s pet in the outbuilding, one is now not using it primarily as part of one’s dwelling.
I return to the point that I just made, which I hope is important and worth one or two possible glances. It is no comfort to have a different definition of an outhouse if, for the purpose of the Bill, the outhouse is in a protected part—in other words, a garden or a yard—that one simply cannot cross to get to the building in question.
That is a very important point. I conclude by asking the Minister to go away and think about this. He is right; we do not want acts of cruelty to be allowed to continue and a warrant to have to be sought simply because of the geography of a particular building. On the other hand, he is also right to say that we do not want troops of inspectors marching through a property while someone is watching the telly simply because they have a budgie in the garage, or whatever. We must get the balance right.
That is another important intervention. The Minister will have taken the temperature of Committee members on this point and will know that there are genuine concerns about what is an outhouse and what is an outbuilding. We do not have a problem with his attempts to define a private dwelling, and we do understand the privacy issues. This is a proper challenge, which the Government should think about. With that in mind, I am content not to press my amendment to a vote.