With this it will be convenient to discuss the following amendments:
No. 175, in clause 18, page 10, line 27, leave out subsection (5) and insert—
‘(5)The appropriate national authority shall issue guidance about the exercise by a court of powers under subsection (1).
(6)In determining how to exercise its powers under this section, the court shall have primary regard to the welfare of the animal.’.
No. 130, in clause 18, page 10, line 28, after ‘regard’, insert
‘to the interests of the animal and’.
Amendment No. 209 would ensure that orders under clause 18 were made only when necessary. Without it, the Bill allows an order to be made that interferes with due legal process by ordering the destruction or disposal of the subject matter of any proceedings. All investigators are bound to preserve exhibits for use in court for examination by the defence. Failure to do so often means that the proceedings are dismissed for abuse of process. Without the amendment, a court could allow the destruction or disposal of an exhibit before the person who was to become the defendant had the chance to have the exhibit examined by his own experts. At the time of the application, he would not know whether there was a need for such an examination. Furthermore, the fact that information has been provided in relation to an offence entitles a defendant to apply for legal aid.
Although I appreciate that there may be a need to treat an animal, and I am certainly not against any animal receiving any treatment that it needs, I am concerned that that would interfere with the defendant’s right to receive due process. Will the Minister explain how he intends the legislation to cope with that anomaly?
Amendment No. 175 is in two parts. The first part would ensure legal consistency by allowing the appropriate national authority to issue guidelines as to how the court was to exercise the powers laid down by subsection (1). Much of the clause will be determined by case law, but I am quite sure that the courts would find it useful if the Government issued some guidance on how to interpret the clause so that there was greater consistency.
The second part of the amendment, which would replace subsection (5), is designed simply to ensure that the welfare of any animal taken into possession is given priority and is certainly given precedence over its value, which I am sure all hon. Members would agree is a rather crude measure of the importance of an animal.
Clause 18 makes no mention of giving primary regard to the welfare of the animal in question. For example, a court may predominantly examine the financial costs and the animal’s value, rather than give priority to what is right for that animal. In those circumstances, if an animal has a severe but not necessarily incurable illness, the court may determine that it is right to put the animal to sleep, especially if the costs of undergoing treatment are considerable. That may not, however, be the owner’s wish, and the animal should be given the opportunity to live if there is a good chance that it can survive.
Amendment No. 130 would ensure that the animal’s interests were put first, as in amendment No. 175. The RSPCA supports both amendments. Subsection (5) does not explicitly state that the Bill will put the animal’s interests first. I am curious about why matters of value and cost must always come second to the interests of the animal; we should do everything that we can to safeguard animals, even if it means extra costs. It is a responsibility that we undertake as owners of an animal and as a society. Under the duty of care, animal owners are obliged to put the interests of their own animals first, and it would be in keeping with the spirit of the Bill and legally consistent if the courts had to do the same. The amendment would ensure that that happened.
With your leave, Mr. Gale, as well as responding to the amendments, I want to move amendment No. 136 formally.
Order. Let me explain: amendment No. 136 has already been debated with amendment No. 135. When amendments are debated collectively they are voted on separately, if that is appropriate, in the order in which they appear in the Bill. Amendment No. 136 will be called after this group of amendments.
I am grateful for that clarification, Mr. Gale. I am also grateful to the hon. Member for Leominster for tabling amendment No. 209 and raising the issue, which merits an explanation.
The proposal in the draft Bill published in July 2004 looked very different from the present clause 8. There has been much simplification since then and the procedure for disposing of an animal under clause 18 has been separated from the need to bring a prosecution. The equivalent power in the current law is in the Protection of Animals (Amendment) Act 2000, but that law is limited to animals kept for commercial purposes, and for an order for disposal to be made under the Act there must be an ongoing prosecution.
Clause 18 has been drafted much more widely. If an animal has been taken into possession under clause 16(5), that would make it possible to apply for a disposal order. The owner or keeper of that animal does not have to be prosecuted for an offence. I shall state the reasons for that, and then deal with possible concerns.
This change in the Bill will close a loophole in the law, and it is very important that that is done. It is not difficult to envisage a situation in which, even if one did not want to prosecute the owner, one might want to remove the animal from that situation and to take a decision on its future. An obvious example would be that of an old, infirm or mentally impaired owner who is incapable of adequately providing for the animal. The animal might need to be removed, but it is unlikely to be in the public interest to bring a prosecution against the owner.
Secondly, it might be in the interests of the animal to be disposed of quickly. If a dog is taken into possession, for example, it might be in the dog’s interests that it is ordered into the care of a sanctuary so that it can quickly be rehomed. Until an order has been made for that dog, it would have to remain with the seizing authority.
Thirdly, because of resources it is not practical to require a seizing authority to keep an animal until a prosecution is initiated. I agree that in many cases a prosecution could be mounted quickly, but equally, in other cases, it might take some time. Local authorities do not always have the funds or the facilities to accommodate a herd of cattle for six months, for example, while they gather evidence for a prosecution. Even if they did, I hope that none of us would consider that a justified expenditure. Those are the reasons why I have chosen to separate the power to dispose of an animal under clause 18 from the need to initiate a prosecution.
I shall now deal with the possible concerns. I appreciate the fact that the anxiety about our approach stems from concern that the interests of the animal’s owner should be adequately protected. My right hon. Friend the Secretary of State signed the declaration under section 19 of the Human Rights Act 1998 to indicate her belief that the Bill is human rights compliant. This is another part of the Bill in which human rights and animal welfare must be balanced, and we believe that we have struck the appropriate balance. We should not forget that an animal that is the subject of an application under clause 18 will have been seized because it was suffering or likely to suffer. If it was wrongly seized, the owner can apply under clause 18(1)(b) to have it returned. I have already agreed to consider amendment No. 68, which would require the person seizing it to notify the owner that they are doing so. Even if the animal is disposed of under clause 18, the owner remains entitled to be reimbursed for its value unless they are subsequently prosecuted and a deprivation order under clause 29 made against them.
There are two strands to amendments Nos. 175 and 130. The first seeks to include a provision that the courts should have regard to the interests of the animal when making a disposal order in relation to it. The second would require the appropriate authority to issue guidance to the courts on how to exercise their powers under this clause. On the first strand the hon. Gentleman raises an important point. The purpose of the clause is to protect the welfare of the animal, but I am happy to consider further whether we need to spell that out for the benefit of the court.
We do not think it necessary to issue guidance to the courts about how they exercise these powers. The types of situation in which an order under clause 18 may need to be made are many, and each application will turn on its own facts and merits. It would not be appropriate for us to try to anticipate all those different situations and potentially constrain the court’s actions. On that basis and given what I have said about amendment No. 130, I urge the hon. Gentleman to withdraw the amendment.
As always, I am grateful for the Minister’s comments. I am slightly concerned about one facet—the technical part. In the case of dogs and cats this is not quite so complicated, but more exotic animals are difficult to look after once they are seized. The concern was raised during the Select Committee’s evidence gathering that if the court disposes of such an animal, it is virtually impossible to proceed with the case. One cannot get legal aid. One cannot have one’s experts examine the issue and therefore defend oneself against the charges.
The other part to which I wanted to draw the Minister’s attention is the simple practicality of going to a magistrate to get one’s animal back when it has been seized. We are not dealing with normal situations when an animal is seized. The circumstances must, one would imagine, be fairly severe. However, if the circumstances are not severe, it should be easy to appeal against the seizure. I am not sure that we are a million miles apart on this.
The Minister mentioned the case in which a little old lady may have lost the plot to some extent. Her pets are taken away because that is in their interests, but if she subsequently recovers, she may feel very unhappy about it if she was not quite as ill as the person who removed her animals had thought. Again, there are good causes for appeal.
We want the animal’s interests to be taken seriously. That appears to be happening, and I am grateful for that, but I hope that the Minister will think about the difficulties in which this will place some pet owners. If he is prepared to nod his head in agreement, I will happily withdraw my amendment. His head has not moved much but I think he would probably like to think about it. I beg to ask leave to withdraw the amendment.