Wild Animals (Circuses)

Fiona O'Donnell Excerpts

Wednesday 8th June 2011 Westminster Hall

[The Minister of State, Department for Environment, Food and Rural Affairs (Mr James Paice)]

I am happy to serve under your chairmanship again, Mr Betts. Surprising as it may be, I am happy to welcome this debate, because it allows me to put on the record a lot more information than I was able to in response to the urgent question a few weeks ago. I congratulate the hon. Member for Stoke-on-Trent South (Robert Flello) on securing the debate, but his introductory speech was full of innuendo and somewhat puerile humour and did not really address some of the key issues that I want to address. I am sorry that several Members have left the Chamber after asking me to discuss particular things in my wind-up speech. Nevertheless, I intend to address their comments, and I hope that they will read my words in Hansard.

The whole issue of animal welfare is extremely emotive and creates huge public concerns. As my hon. Friend the Member for Carmarthen West and South Pembrokeshire (Simon Hart) has said, it can sometimes lead to mistakes or unforeseen consequences, but we cannot and should not ignore the fact that it is a matter of huge public concern. We also have to recognise that Governments, like everybody else, have to operate within the law, whether it is law that they themselves have passed or international law to which they are signatories. As I will explain in a moment, it is European law that is significant to this issue.

I have a little more time than is usual in such debates, so I will try to address fairly and squarely all the issues that have been raised. The timetable between primary and secondary legislation has been mentioned. Using secondary legislation to introduce a licensing regime—I will discuss that regime in more detail later—would enable us to consult informally with all the animal welfare and interested groups over the next few weeks and months. A formal public consultation would start at the end of the year, and the regulations would be in place well before the end of next year. It is not feasible to expect primary legislation to be fitted in and to go through the parliamentary process in anything like that time. We would, moreover, also have to allow a period of grace before that primary ban could be put in place, for the animals to be re-housed or for any further action to be taken.

The second issue that I want to raise is that about numbers. I do not think that there is much disagreement that the number of animals concerned is in the order of 39. I saw some figures yesterday that might indicate the number is considerably less than that, but it is in that region. We believe that only one circus is using the big cats—tigers—and that the others have zebras and camels. However, of course, a ban on wild animals full stop would include reptiles and everything else. I think that the hon. Member for Chippenham (Duncan Hames) referred to Denmark, where only certain species have been banned and there is no complete ban on wild animals. That raises the issue of licensing and regulation.

The debate is about whether the matter of animal welfare can be accommodated within a circus. I fully understand those people who believe that the interests of a big cat cannot be accommodated in those circumstances, but that might not apply to everything that comes under the heading of a wild animal. We take the definition of a wild animal to be the one used in the Radford report:

“a member of a species that is not commonly domesticated in the British Islands; that is to say, a species whose collective behaviour, life cycle or physiology remains unaltered from the wild type despite their breeding and living conditions being under control for multiple generations.”

It is worth emphasising that we cannot be absolutely sure, but we believe that all the animals concerned come from several generations of domestic captive breeding. However, they are still wild animals.

A number of hon. Members, including the hon. Member for Stoke-on-Trent South, have referred to the previous Government’s work on this matter, the Radford committee and so on. As he and other hon. Members will know, Ministers of this Government are not allowed to see the papers of a previous Administration, but the impact assessment was, of course, published and is a public document. It was based on an initial view of the legal powers available to impose a ban. However—this is the key point and why I am afraid the hon. Member for Copeland (Mr Reed) is somewhat adrift in his criticism—the impact assessment does not give any legal advice at all because that was provided separately. I will return to that issue of openness. As he rightly says, the impact assessment makes the assertion that, under section 12 of the Animal Welfare Act 2006, it would be possible to introduce the legislation to impose a ban, but it does not then provide advice on whether that ban would be upheld if it were challenged in the courts. I will return to that point. The impact assessment should not be seen as being the same as the legal advice, which I obviously have not been able to see.

We should remember that the Radford report summarised the issues as follows. It stated that the scientific evidence that welfare was being compromised was not compelling and, as I said, that although section 12 of the Animal Welfare Act 2006 permits legislation to “promote animal welfare”, it does not enable legislation to be made on the basis of ethical or moral judgments about the acceptability of using wild animals in circuses. The welfare argument is given by many people, but—this is the critical bit—the report stated that a ban imposed on welfare grounds would be disproportionate in the absence of evidence that welfare was compromised and that an outright ban might be beyond the powers in section 12 anyway, even if the welfare case was made. Radford concludes:

“it is submitted that to introduce a ban on the use of any type of non-domesticated animal presently in use by circuses in the United Kingdom…by way of a Regulation made under the authority of section 12 of the Animal Welfare Act 2006 would be vulnerable to legal challenge”.

That is printed in the advice given to the previous Government.

It is worth making the point that, during the debate on the Animal Welfare Act 2006, for which I served on the Bill Committee, attempts were made by hon. Members—I have not checked who they were—to introduce a ban through that primary legislation. Labour Ministers at the time—the right hon. Member for Exeter (Mr Bradshaw) was the Minister responsible then—clearly opposed that. In the House of Lords, Lord Rooker spoke for the Government and clearly stated that any measures would have to be based on science. Labour Ministers endorsed the approach that Radford subsequently supported in his report, which was commissioned after the 2006 Act.

The hon. Member for Stoke-on-Trent South raised the issue of human rights. I will not resile from the point that it is perfectly correct that the impact assessment stated that no human rights issues were raised by the proposal for a ban. For the reasons that I have given, no Minister in the present Government can see the legal advice that led to that statement in the impact assessment. All that I can tell hon. Members is that that is not the legal advice that we have now received.

The hon. Member for Stoke-on-Trent South referred to advice that he had received. He did not attribute it, but I guess that it was from Animal Defenders International. We also received that advice yesterday and our lawyers are considering it. Obviously, our lawyers need to take time to consider that advice, but it seems on first examination that it concludes that, in principle, England—I stress that it is just England and that this is an English measure—could ban wild animals in circuses if it were a proportionate measure. However, the advice does not appear to provide any idea about whether it would be a proportionate measure. It does not refer to the Radford report, proportionality or, indeed, the ombudsman, to whom I now come.

I will take a few moments to consider the ombudsman, because it is important that hon. Members fully understand the sequence of events during the mid to late noughties, as they are called, in the European context. That issue was raised in the urgent question, and I am afraid that some of the assertions made were just incorrect. The ban in Austria came into force on 1 January 2005, following which a circus association submitted a complaint to the European Commission on 25 May, arguing that the ban was a breach of the principle of the free movement of services. The Commission wrote to the Austrian Government on 12 October, expressing concern that the ban might infringe the principle of the free movement of services and asking Austria to explain why a ban was a proportionate response to the problem. At that point, the Commission did not regard the question of how to protect wild animals in circuses as one to be left to individual member states, otherwise it would not have asked that question.

Austria replied that a ban was the only way to deal with the issue, and it is perfectly correct that the Commission subsequently decided not to pursue the matter. However, the complainant asked for an explanation and received a letter from the Commission in October 2006, purportedly explaining why it had taken such a decision. That letter restated the general principle that restrictions on the provision of services need to be justified, but it concluded that, because animal welfare was so important, the question of how to protect wild animals in circuses should be left to member states.

The matter was then referred to the European ombudsman. In a letter of 19 February 2008, the ombudsman sought a more detailed explanation of the very limited reasoning in the letter, particularly in the light of Austria’s failure to provide any detailed explanation of why more limited measures might not be sufficient. On 3 June 2009, the ombudsman made the following draft recommendation:

“The Commission should evaluate the proportionality of the Austrian law. In light of its analysis, if it considers that Austria has not demonstrated that it complies with all the conditions set out in the Gebhard test”—

the conditions that are now in the services directive—

“the Commission should a) pursue its infringement proceeding against Austria or b) provide valid reasons for dropping the case.”

In September 2009, the Commission replied in vague terms and the ombudsman therefore made a final decision on 8 March 2010. It is really important that hon. Members read these reports, rather than just taking the selective extracts that we have heard this morning.

I will read out what the ombudsman said. He concluded:

“The statement used by the Commission in order to justify its political stance in the present case, that is, that ‘animal welfare questions are better left to Member States’ appears to be tantamount to acknowledging that, in all matters concerning animal welfare, the Commission is ready to abdicate from its role as guardian of the Treaties. Such a statement does not comply with the duty to provide correct, clear and understandable reasons to justify the exercise of the Commission’s discretionary powers to close an inquiry on an infringement complaint. This was an instance of maladministration.”

I therefore suggest that there is ample reason to believe that although that case had to close—the ombudsman could do nothing more than make that finding—in a further application the Commission may well find itself in a very different position.

On our recent legal advice, I am pleased to see that the hon. Member for Chippenham has returned to his seat, as he challenged me on this issue. I am pleased that he has received the Secretary of State’s letter, which stated that we will not publish the advice itself. I appreciate that the hon. Member for Chippenham has not long been a Member, but it is a convention, under all Governments going back over a long period, that legal advice is not published any more than any other advice from civil servants to Ministers. Indeed, the Freedom of Information Act 2000, passed by the previous Government, ensured that that remained exempt, so that is the principled reason. I am, however, happy to share an element of detail with the Chamber, with your forbearance, Mr Betts.

Our advice is that any ban on travelling circuses would be vulnerable to a legal challenge both from a circus in another member state on the basis that it contravened the services directive—it is worth emphasising that although I referred earlier to the number of circuses that have their own animals, we believe that circuses buy-in or hire acts from other circuses for part of the season, so that could apply to overseas circuses—and from both European and UK-based circuses under the Human Rights Act 1998. Without strong evidence that a ban is needed for welfare reasons, it is likely that a challenge would be successful. Radford concluded that we do not have that evidence on the welfare reasons.

Article 16 of the services directive requires that we would have to meet three legal tests for a ban: non-discrimination, necessity and proportionality. A ban would meet the non-discrimination test, but we believe that it would fail the necessity and proportionality test because there are means of protecting animals other than with an outright ban. A ban based solely on ethical grounds would be difficult to justify under the services directive, for public policy reasons. A ban can only be used if there is

“a sufficiently serious threat to a fundamental interest of society”.

That is not met when we are considering approximately 39 animals in three or four circuses. Under the Human Rights Act, circuses could mount a challenge under article 1 of protocol 1. Any limit on the use of a person’s possessions must be proportionate to the aim of the action being taken. It is difficult, on the basis of the welfare evidence, to justify a ban as a proportionate response.

A number of hon. Members raised the issue of licensing. I do not intend to take all the time available to me, but I want to place a number of points on the record. As has been repeatedly said, there are only a few circuses involved in this situation, and a limited number of animals. We will, therefore, not need the kind of big inspection regime that we have for zoos. This is not an issue for local government—I have to emphasise that to the hon. Member for Dumfries and Galloway (Mr Brown), who raised that point earlier. We will use appropriately qualified Government-appointed veterinary inspectors who are independent, obviously, of industry interest groups. It is conceivable that there may be some local involvement in the inspection process, but they will be DEFRA inspectors. The clear basis of the whole scheme—obviously, we are yet to develop the detail—is that it will be self-funding and that there will be no cost to the taxpayer, contrary to assertions made by the hon. Member for Stoke-on-Trent South. Licence fees would be charged on a full cost recovery basis. We will, as I said, publish proposals, and having had informal conversations with relevant parties—

[Fiona O'Donnell (East Lothian) (Lab)]

I apologise for my late arrival to the debate. As part of those discussions, has the Minister spoken to the devolved Governments in Scotland, Northern Ireland and Wales?

[Mr Paice]

The answer is no, because the issue does not affect the devolved authorities. As I said a few minutes ago in my speech, this is an England-only measure.