Welfare of Wild Animals in Travelling Circuses (England) Regulations 2012

Lord Knight of Weymouth Excerpts

Wednesday 24th October 2012 Grand Committee

[Lord Redesdale]

My Lords, I have not carried out the same amount of research as the noble Lord, Lord Colwyn, but I did watch “Madagascar 3” on the airplane coming back from Doha the other day. That is an interesting film as the prevailing mood is that wild animals should not be used in circuses but in that major blockbuster the zoo animals own a circus. I raise that point as it is interesting to see how trends change.

We are talking about a total of between 30 and 50 animals, with the consensus being around 39. These stopgap measures are useful as they will increase costs. Consequently, many circuses will consider whether it is economically viable to continue to keep wild animals given that the whole industry has an estimated turnover of a mere £2 million. When one considers the number of circuses in existence, that figure shows that it is not the most lucrative of professions.

My son requested me to ask the following question as we visit Zippos Circus, which comes to Hampstead Heath once a year. Last year I noticed protestors complaining about the use of horses. I was extremely impressed by the circus’s standards of animal welfare for its domesticated animals such as horses and budgerigars. I asked the Minister earlier to ensure that budgerigars are not considered to be wild animals in this context. I very much hope that he will take into account the cost of veterinary intervention. Obviously, I am against the use of wild animals in circuses but I hope that the cost of veterinary intervention for domesticated animals—that does not seem to be a massive issue at present—has been taken into account.

[Lord Knight of Weymouth]

My Lords, I welcome some movement on this issue by Defra because, like others, including the noble Lord, Lord Kirkhill, I very much agree that the use of wild animals in circuses is not appropriate. However, I am not talking about domesticated animals. I also agree that wild animals are treated cruelly in circuses. I noted the Minister’s comment right at the beginning of his speech that this measure is the first step towards introducing a ban on ethical grounds. I hope that when he winds up he will say whether the Government will stick to the commitment made by his predecessor to introduce an ethical ban in this Parliament. That would enforce the will of the other place which voted unanimously to introduce such a ban, using Section 12 of the Animal Welfare Act. The Minister’s noble friend Lady Parminter asked about Defra’s latest opinion regarding the legal position of such a ban. It would be interesting to hear the answer to that question as well.

I strongly support the principle of a ban. Some worry that bringing forward regulations that last for seven years, with a review after five years, might undermine the notion that there is any momentum behind that principle. However, I was pleased to hear the Minister say that this measure is the first step and if he can reassure us on the timeline, I would be most grateful. Clearly, we need to improve welfare standards. That is the reason why I oppose the use of wild animals in circuses. In so far as it goes there is some merit in these regulations in improving those standards. However, it is worth asking whether it would have been easier, cheaper and clearer to go for an outright ban. Those circuses that use wild animals would hear that message and a timeline set out by government and would phase them out over the intervening couple of years rather than getting used to a new set of regulations which are only temporary anyway, which may be phased out in favour of the ban on which there is all-party agreement.

Reference was made obliquely, which I wish to address head on, as to whether the enforcement mechanism in these regulations is flawed. Clearly, if we are bringing forward regulations that are not going to work and that are only temporary anyway, there is not very much point in proceeding.

I am most grateful to the RSPCA and the Born Free Foundation for forwarding me the joint briefing they have prepared and in which they go into some detail. I have copied relevant sections to the Minister so that he could have time properly to consider the argument they made. I shall summarise it. The main sanction in these regulations is to suspend the licence. If the licence is suspended, something has to happen to the animals that are then being held without a licence. Regulations state that a licence is required for any place where a wild animal associated with such a circus is kept. Therefore keeping them where the circus is is not an option unless, I guess, the circus holds an alternative licence for that location, which is extremely unlikely, given that we are talking about a travelling circus. Moving the animals is possible only if the site where the animals are held during the suspension also holds a licence. Any site that held the animals without a licence would find itself in contravention of the regulations. Given that suspensions come into effect immediately and initial granting of a licence requires prior inspection by a Defra inspector, plus the relevant fees to be paid et cetera, that clearly is not a practical solution either, unless the expectation is that the circus owner would hold an additional licence for their home site to cover this eventuality, if he is allowed to move them to that alternative site under this licensing regime, which seems a bit unlikely, given my reading of the regulations.

The only other possible option—unless the Minister tells me otherwise—is moving animals to another licensed circus during a suspension, again, if the circus is allowed to move them. However, given that we have heard from the Minister that the Secretary of State is required to have 14 days’ notice if a wild animal is introduced to any circus—I guess to add it to the stock list that the Minister referred to in his opening comments—I cannot see how that will work either. There are real questions about whether these regulations are enforceable using the sanction set out. Even if the Minister is unable to do anything else, if he can answer that question I will go away happy that I have achieved something.

There are four other points that I would like to make briefly. The first is about whether the welfare standard is good enough. I have a fundamental problem, which is one I wrestled with in my brief tenure as a Defra Minister five years ago, and I never managed to resolve it. It is that the same animal could be held under different licence regimes if it was unfortunate enough to be moved about into different settings, and each has a different standard of welfare and husbandry attached to it. Let us take the example of a small primate: a marmoset monkey would be a common one. On a Monday, the marmoset might be held in a pet shop under a pet shop licence under a particular standard of welfare and then be sold and held under a dangerous wild animal licence in someone’s home, which is a different set of standards. Then perhaps that does not work out, as keeping primates as pets often does not work out, so on the Wednesday, the animal is sold to a circus. In the circus, it is held under another set of welfare and husbandry standards. Then perhaps the circus owner finds that this marmoset is not such an attraction and is not easily forced into doing the amusing things that punters want to pay for, so on the Thursday, the animal ends up in a zoo and is under another set of welfare standards, which are the highest welfare standards.

There are those who oppose zoos altogether, and we debated that the other day. It does not seem logical or credible that, if we are starting with the principle of animal welfare in how these animals should be kept, there are four different licensing regimes, and that is before I get into the distraction of the Home Office licensing regime if they are to be used for experimentation, because that is a whole different debate that I do not think we want to get into. I would like to see the welfare standards in these regulations at the highest current licence standard, which is the standard that we have for zoos, animal parks and rescue centres. I do not think that they deliver that and there is a real question about whether the welfare standards are good enough.

My second point is around the quality of the licensing inspections and the expertise that will be deployed in Condition 6(2) of the regulations dealing with the inspectors that the circus owners themselves would use. It is notable, for example, that in a famous case in 1997 of Mary Chipperfield Promotions in Hampshire, the farm was an official MAFF quarantine facility. It carried a Dangerous Wild Animals Act licence, it was registered under the performing animals regulation and the co-owner, Roger Crawley, was at the time a government zoo inspector. It had all sorts of regulations, which should have reassured us that this was a quality establishment. Yet the evidence eventually gathered at Mary Chipperfield’s facility, including that acquired by a friend of mine, Alison Cronin, who runs a Monkey World, led to the conviction on various charges of Mary Chipperfield, her elephant keeper and Roger Crawley for cruelty to a sick elephant.

That tells me that even at the highest standard of regulation we have had problems with animal welfare. We know of other examples of premises and circuses that had been inspected where the wool has been pulled over inspectors’ eyes over the training of elephants. Local authorities have some competence in this licensing regime and I am concerned about whether they consistently have the expertise available to them to do any of the licensing.

I note what the Minister said about the regulations being enforced by Defra using vets from the existing list of veterinarians. Obviously, I have every respect for the Royal College, for its self-regulation and the standards of vets. But I would like the Minister's reassurance that vets with a vested interest in circuses are not engaged on that list. We have a fundamental problem around the level of expertise in the veterinary population in dealing with some of these species of wild animals. Not many vets are experienced in dealing with elephants, lions, some of the other wild cats and the primates that may be kept in circuses. If any of those few are making a living out of working for circuses, there is a conflict of interest and I want some reassurance that those conflicted vets would not be engaged on the list.

My penultimate point is about travel time. I note that in Condition 10 of the regulations no maximum travel time has been listed. I recall a debate we had towards the end of the summer before the Recess about the transportation of horses. There was widespread concern across your Lordships' House about travel time for horses. Noble Lords probably share the same concern about travel time for wild animals and yet no maximum limit has been set. Why not?

Finally, there is the issue of new species and the ability in these regulations for circus operators to submit new species to Defra for inclusion in the stock list. Given that these regulations are temporary, I find a facility to include new species odd because it undermines the notion that a ban is coming pretty soon in this Parliament—if the previous promises are to be kept. But if there are good reasons for including new species, we should shift the presumption from Defra having to produce individual standards for those new species to the circus operators themselves having to provide evidence that any animals that they are adding to the stock list will not suffer. That would be more manageable for Defra and we would then have the presumption the right way round.

I am sorry to have spoken a lot longer than anyone else although I guess that that is sometimes my role in this place. Beyond the principle, I am most concerned about the enforcement mechanism. But if the Minister could also give me some answers about the welfare standards, the quality of the inspection, travel time and the arrangements for new species, I would be most grateful.

[Lord De Mauley]

My Lords, I am most grateful to all noble Lords for their comments and questions. I will do my best to address the points raised.

My noble friend Lady Parminter asked whether the regulations created a two-tier framework for animal welfare, particularly in comparison with zoos. If anything, the status quo signifies a two-tier system. While the Animal Welfare Act 2006 already applies, operators of travelling circuses that have wild animals are, in animal welfare terms, otherwise unregulated. The regulations will address that.

It is right that there are some differences in the detail of welfare standards because we are talking about very different operating environments and different sources of exercise and enrichment, but I do not accept that we are somehow making things worse through these regulations. It is right to introduce targeted welfare standards, inspections and enforcement for travelling circuses, which are exempt from other regimes that would protect the animals.

My noble friend asked specifically about chaining. The new regulations should be thought of as an extension to the Animal Welfare Act and its existing provisions. It is already a criminal offence to cause a circus animal unnecessary suffering or to fail to provide for its welfare needs. If anybody—welfare groups or a member of the public—has evidence of this happening, they should contact the relevant enforcement authority. These regulations will require regular announced but, more importantly, unannounced inspections, as well as routine veterinary visits. They also limit unsupervised wild animal access to a named group of suitably trained or experienced staff and they require circuses to keep detailed records of all aspects of the animal’s day-to-day life. If our inspectors discover any of these alleged cases of abuse or neglect, enforcement action should be taken.

My noble friend asked which welfare organisations were in favour of the regulations. The British Veterinary Zoological Society supports a regulatory approach. She also asked about the issue of the grounds for a ban. The 2007 Radford report on circus animals concluded that there was insufficient scientific evidence to demonstrate that travelling circuses are unable to meet the welfare needs of wild animals presently being used in the United Kingdom. The position of lack of scientific evidence has not changed. There is insufficient evidence that a ban is required for welfare reasons and any such ban would be vulnerable to challenge. That is what we must avoid.

Consequently, we are now looking carefully at the means by which a ban can be introduced on ethical grounds. There are a number of issues to consider in developing the ethical case and the exact nature of a ban. We must not rush primary legislation on such an emotive issue. We need to get it right. The detail must be correct to ensure that it will not fall at the first challenge. Nevertheless, we are determined to pursue this and we are confident that we will get there.

The noble Lord, Lord Kirkhill, suggested that Defra had been procrastinating. The situation has not changed since my noble friend Lord Taylor’s Written Ministerial Statement on 12 July that we expect to be able to publish draft legislation for pre-legislative scrutiny this Session. We are working on a draft Bill. He specifically raised the issue of elephants suffering under licensing. There is a far greater chance of uncovering animal abuse with regular licensing inspections than without. It should be remembered that the trial of the elephant Annie’s former keeper has not yet been resolved, so I cannot comment any further on that particular case and I am sure that noble Lords will understand that.

Generally, in answer to the noble Lord’s point about cruelty, it need hardly be said that training should not involve animal suffering. These standards prescribe that animals must receive immediate and tangible rewards and positive reinforcement when they exhibit desired behaviour during training and performance. They also prohibit seeking a desired behaviour from any animal in any way that would cause pain, suffering, injury or disease.

I thank my noble friend Lord Colwyn for his supportive words. My noble friend Lord Redesdale made some interesting points, which I have taken on board. I can confirm that the definition of “wild animal” is consistent with the Zoo Licensing Act 1981—therefore, budgerigars are not considered to be wild animals. Nevertheless, the Animal Welfare Act 2006 still applies of course.

The noble Lord, Lord Knight, raised a number of issues, some of which I have already addressed in answering other points. Regarding whether the period of seven years would conflict with a ban coming into place sooner than that, the regulations include the standard sunset provision. There is no connection to or conflict with this and the timescale of a ban. Government policy is that all new domestic regulations expire seven years after they are made. That does not prevent the licensing regulations becoming redundant earlier where their provisions are superseded by the proposed ban.

The noble Lord, Lord Knight, kindly raised with me in advance the enforcement provisions and how they would work. If a circus operator chooses not to comply with the law, it will be at risk of a licence suspension and possible revocation. The simple remedy is to comply or to cease using wild animals. It is important to understand what will happen in practice and already happens for other regulations. Ongoing dialogue between inspectors and operators will mean that a suspension could not come as a surprise to the operator. Only if the operator refuses to take action to restore compliance with licensing conditions will the possibility of a suspension arise. If a suspension notice is issued, it will clarify precisely what must be done and by when. Continued failure to comply would lead to revocation of a licence and prosecution. It is not the case that an operator would be prosecuted for taking steps identified in a suspension notice.

Compliance with the licensing conditions could be restored by the removal of all the animals of the affected species from the stock list of the circus. They will then be covered by a combination of the Dangerous Wild Animals Act 1976, the Zoo Licensing Act 1981 and, of course, the Animal Welfare Act 2006. The circus licensing regulations would no longer apply to those animals, and they would have to be removed from the circus.

I should add that neither the Joint Committee on Statutory Instruments nor the Secondary Legislation Scrutiny Committee has had any adverse comments on the enforceability of the regulations.

[Lord Knight of Weymouth]

I hope that the Committee will indulge me in asking a question. If the operator disagrees with the suspension of a licence and wants to appeal under Regulation 14, what will that operator do with his or her animals while waiting for the outcome? Clearly, paragraph (4) would allow the court to permit the operator to continue operating a travelling circus, which is a way out, but if the court were not minded to, my worry is that the animals would then be kept illegally. That is what I do not understand.

[Lord De Mauley]

I am sure that I will be able to give the noble Lord an answer to that question in a moment.

The noble Lord mentioned conflict of interest. Inspectors have been vetted for conflict of interest; the process already in use for zoos will be followed. He also raised a specific point about primates, which interested me. May I ask him to accept that today we are dealing with these regulations but I am quite happy to talk to him outside about the broader issue of the welfare of animals?

The noble Lord asked about new species. Any new animals introduced will be protected by the rigorous new standards required by the licensing scheme and will be inspected regularly, along with the species that are currently used. However, we cannot use regulations made under the Animal Welfare Act 2006 to prohibit the introduction of new animals outright. Any attempt to use these licensing regulations to prohibit the use of certain species would be highly vulnerable to legal challenge. Our position is that a ban via primary legislation on ethical grounds is the most secure way of achieving the successful ban we want. We cannot prevent the use of new animals until that primary legislation has been enacted.

The noble Lord asked about the period of time that animals may travel for. There must be a stationary period of at least 12 hours in any 24-hour period when the circus moves between venues or layover sites. During transport, animals should be offered water, feed and the opportunity to rest as appropriate to their species, age, health and physiological state. Licensed animals should not be taken from the transport vehicle during transport, except at pre-planned rest stops as defined in the journey plan or under emergency conditions. Every effort must be made to make a journey as comfortable as possible for the animals being transported, including adhering to all traffic laws.

On the noble Lord’s earlier point about enforcement and his supplementary question, suspension can be delayed in taking effect. If the court refuses to suspend the suspension, a fine can result. Enforcement and prosecution will produce compliance. I am not entirely sure that that satisfies the noble Lord, and I will write to him on that specific point. I hope that I have answered the main points raised by noble Lords. If I have not, I will write to them following the debate.

Specific legislation setting down welfare standards for animals with such complex welfare needs, especially in such a constantly changing environment, is long overdue. Similar species in more static environments have been subject to their own specific licensing legislation for at least 30 years. By contrast, wild animals in circuses have not been the specific subject of any legislation since an Act in the 1920s.

The Government have promised to bring forward primary legislation to ban wild animals from travelling circuses. This ban will be on ethical grounds and will, understandably, I hope, take a little time. It would not be right to rush legislation through Parliament that sought to prohibit an activity that has long been legal and for which it has proved hard to find evidence that an animal’s welfare is irredeemably compromised. However, the Government are satisfied that there is a risk that welfare issues need to be addressed. In the interim, the welfare of these animals is, of course, paramount. The Government believe that these regulations will safeguard the welfare of wild animals in travelling circuses while a ban is introduced.