Wild Animals in Circuses (No. 2) Bill (Third sitting)

Sandy Martin Excerpts

Wednesday 22nd May 2019 Public Bill Committees

[Luke Pollard]

I am grateful to the hon. Gentleman, who makes a good point. The narrow scope of the Bill means that we need to ensure that the circus element is tightly drawn and understood. A good point was made in the evidence session about the other environments in which wild animals can be displayed, but, although I am a fan of broadbrush interpretations and including as much animal welfare as we can, I fear that that might slip slightly outside the scope of the Bill. However, I echo the hon. Gentleman’s request for the Minister to respond to the points that were raised in evidence yesterday.

It was obvious that the Government were not prepared for the level of cross-party concern that was raised on Second Reading that the Bill was missing a definition of a travelling circus, which was also raised a number of times by the organisations that we took evidence from yesterday. Our amendment seeks to use established wording, which will be familiar to people who have looked at other pieces of legislation that ban wild animals in circuses.

The Minister has a number of options. I think we have established that having a definition of a travelling circus would be beneficial. That definition can sit either in the Bill—in primary legislation—or in the guidance that accompanies it. There are merits to both options. If the definition sat in the Bill, it would be clear, it would have good legal standing and there would be legal certainty about it. Putting it in the guidance, however, would give us greater flexibility and perhaps allow us to include some of the environments that the hon. Member for North Dorset mentioned.

There are advantages to both approaches, and it would be worth the Minister reflecting on how the definition should be drawn. My preference is for a clear definition in the legislation. However, I know that the Minister has strong thoughts on this matter, and I would like to hear his views before deciding whether to press the amendment to a vote.

[Sandy Martin (Ipswich) (Lab)]

I fully concur with my hon. Friend, but does he agree that it is a little anomalous that there are definitions in clause 1(5) of “animal” and “circus operator” but no definitions of a circus?

[Luke Pollard]

I agree with my hon. Friend about the Government’s choice of definitions to include, or not to include, in the Bill. Indeed, in evidence, we heard stakeholders’ concerns about the missing definition of what a travelling circus looks like and broad concerns about what “wild animal” means.

Having heard the evidence yesterday, Members on both sides of the Committee will think it important to ensure that we can comprehensively ban the use of wild animals in circuses. That means making sure that the legal definition is correct. We need to ensure, whether in the Bill or in guidance, that performances outwith a typical circus tent, such as on a tour of arenas or activity involving touring from place to place and not returning to the home location, are within scope. Our suggested definition refers not to a place but to the group of people and animals making up a circus. That reflects more accurately how circuses work, as we heard yesterday.

The definition that we propose is in line with the guidance accompanying the Wild Animals in Travelling Circuses (Scotland) Act 2018. Scotland does not have regulations on licensing animals in entertainment. There is a chance that circuses in England could merely classify their animals as being used for entertainment. That might, for example, be the case for reindeers in the circus being used in Santa’s grottoes. A definition of travelling circuses will provide clarity on what is in or out of scope. Without a robust definition of a travelling circus, there is a risk that wild animals could be used with entertainment licences as part of performances that are travelling circuses in all but name.

In the evidence sessions yesterday, it was quite clear that the circus operators were keen to hold on to their animals and continue to use them in entertainment, perhaps under different licences, if only because of their close emotional bond with the animals that they currently own and use. There is overwhelming evidence that, if we do not define what a travelling circus is, that might create difficulties with enforcement, and there could be unintended consequences. As the hon. Member for Isle of Wight succinctly put it yesterday,

“unintended consequences are often the consequences of things that were not intended in the first place”.—[Official Report, Wild Animals in Circuses (No.2) Public Bill Committee, 21 May 2019; c. 29, Q77.]

The attempt to get a clear definition of a travelling circus is an attempt to prevent unintended consequences and to make the scope of the measure sufficiently tight to be legally enforceable.

I should be grateful if the Minister set out the options. Is primary legislation the right place for a clear definition of a travelling circus or would including it in guidance to be published by his Department carry similar weight and allow flexibility? I am interested in the end effect, and not necessarily the words on the page.

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[David Rutley]

The clause gives effect to the Bill’s schedule, which makes provision for the appointment of inspectors and sets out their powers and duties under the Bill, including powers of entry, inspection, search and seizure. The Committee may wish to debate the inspection provisions when we consider the schedule.

[Sandy Martin]

It is a pleasure to serve under your chairmanship, Mrs Moon. The inspection regime, which is crucial—there is no point in passing legislation unless we can enforce it—does not enable police officers to take part in enforcement of the Bill. Members of the public would be a bit surprised to find out about there being areas of the law in which the police are not allowed to be involved, so I urge the Minister to reconsider whether the police should be involved and allowed to take part in inspections and enforcement of the Bill.

[Kerry McCarthy (Bristol East) (Lab)]

I will be brief—if I had been a bit quicker off the mark, I would have intervened on the Minister. My concern is that, as with so many other aspects of the Minister’s Department, although there will be powers of inspection, unless there is proper resourcing and people in place doing the job with the power to carry it through from start to finish, it all becomes pretty meaningless. We see that, for example, in the work of the Environment Agency. Will he reassure us that the power for action will mean something in practice?

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[David Rutley]

It is an honour to be reminded in Committee of the commitments I have made. I will follow up that point, but I confess that I do not have that information to hand. I look to my trusted officials, who will get back to us on that later today.

The hon. Member for Ipswich raised the use of police. Paragraph 6 of the schedule allows inspectors to “use reasonable force” when necessary and also to take “up to two…persons” with them, which could include a police constable, when exercising the power of entry.

[Sandy Martin]

Paragraph 4 of the schedule repeatedly says “an inspector” and defines an inspector as someone appointed for the purpose of inspections. It does not mention police officers at all. I am not sure why the Minister thinks the police are being given any powers at all.

[David Rutley]

To reiterate, based on the work done by the Department, an inspector, or the persons whom the inspector takes with them, could be a police constable.

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The hon. Gentleman made an important point about the final hurrah. I hope and believe that the owners of the different circuses that appeared before us in the evidence session yesterday fully understood the strength of opinion in Parliament on this issue. They will also understand that if they were to bring wild animals into a circus event at this point in time, there would be a strong public reaction. There might be an economic cost, because they will need to consider how they will look after those animals in retirement. Notwithstanding differences of opinion about the efficacy or rightfulness of the work that they do, the circuses seemed to be concerned about the welfare of animals.

[Sandy Martin]

Can the Minister give us a categorical assurance that those circuses that currently have licences to show animals cannot bring additional animals in for the last few months of the licence that they already have? Clearly, the close relationship between the two circuses that gave evidence yesterday and the gentleman from Circus Krone, who shows large numbers of big cats, suggests that he might want to bring his big cats over to this country, just to make a point.

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[Luke Pollard]

I beg to move, That the clause be read a Second time.

The new clause is an attempt to consider what will happen if an offence is committed under the Act, and if wild animals are still being used in circuses after the legislation has commenced. We seek to understand what type of punishment and consequences there will be for repeat offending. For those in breach of the Act, the new clause proposes disqualification from owning or keeping animals, or from participating in the keeping of animals. Should someone break the law on keeping wild animals and using them for entertainment in circuses, the new clause would introduce sufficient punishment to ensure that those animals could no longer be used, because the circus owners would be disqualified from keeping animals.

We heard yesterday about a number of domesticated animals, such as horses, that are used in circuses, and their use can continue because they are not wild animals. That provision would remain, but the new clause sends a strong signal that if the law is breached and wild animals are used in a circus, the owner would be disqualified from owning a wild animal.

We heard yesterday from one circus owner about the possibility that some wild animals would continue to tour with the circus, even though they would not be used for entertainment purposes, because of the owners’ close affection or concern for the wellbeing of those animals. Committee members may have different views about the wellbeing of animals who continue to be taken on tour around the country, rather than put into a habitat that is as close as possible to their natural environment, and where they could live out the rest of their lives in freedom. However, the new clause would prevent owners of wild animals from owning, keeping or participating in keeping those wild animals, should there be a breach of the rules.

[Sandy Martin]

Does my hon. Friend agree that the main thrust of the new clause is not automatically to disqualify anybody who has been convicted of touring with a circus with animals, but to give the court the opportunity to make that a factor if the treatment of those animals has been bad enough? There are all sorts of different gradations of offence, and if there is a particularly serious offence, people would want the courts to have the opportunity to disqualify the owner from having animals at all.

[Luke Pollard]

I agree with my hon. Friend, and that leads into a question about the powers and consequences of the Bill. As a country, we have a number of pieces of good animal welfare legislation. Indeed, we are on the cusp of considering what is animal welfare legislation—meaning in the welfare of the animal—and what is a moral ban. This Bill will be enacted on ethical grounds. We, as a Parliament and a country, have decided that keeping wild animals in circuses is no longer something that we as a society want to participate in or to see. That legitimate and genuine concern is held by Members across the Committee and by our constituents. Beyond that, people want to know about the consequences of breaching these laws. Under existing protections for wild animals and other animal welfare provisions, certain types of punishment are already available. The new clause seeks to explore what punishments would be available to the courts for those offenders who continued to offend under the Act. Beyond that might be a civil sanction. I am trying to understand the consequences if someone breaks this law.

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[David Rutley]

New clause 2 and amendment 3 seek to provide inspectors with powers to seize animals and make alternative arrangements to care for them. Although we understand the concern that, in some situations, animals might need to be removed from the premises on safety or welfare grounds, such powers are already provided for in existing legislation. As such, the amendments are not necessary.

The inspection powers provided by the Bill are only those that inspectors need to properly enforce the ban, including powers to enter and search premises, to examine animals and to seize objects. In this context, “premises” includes any vehicle, tent or moveable structure. In addition, inspectors have powers to video or photograph an animal, which would provide sufficient evidence of an offence.

We have not provided powers to seize animals during the course of an investigation or post-conviction penalty. In respect of pre-conviction seizure as evidence, that is because it is unnecessary. If there are welfare or public safety concerns, animals can be seized under the Animal Welfare Act 2006 or the Dangerous Wild Animals Act 1976.

[Sandy Martin]

To use an analogy, it is often the case that if someone who owns a large tree that they want to remove hears that a tree preservation order is about to be placed on it, they will chop it down before the order can be placed. Is there not a real danger that if it is not possible to seize animals under certain circumstances when they are about to be removed from a circus, they may be destroyed before they can be rehoused?

[David Rutley]

That is an interesting point, but I think it is unlikely. There are protections, so if a circus owner was minded to do such a thing, I would have thought that we would have seen evidence of animal welfare concerns, which would be dealt with under the 2006 Act. I will explain in more detail as I proceed why we have come to that conclusion, which will hopefully answer the question more fully.

The Animal Welfare Act 2006 permits seizure if an animal is suffering, or if it is likely to suffer if its circumstances do not change. The Dangerous Wild Animals Act 1976 permits seizure of certain types of animals, including camels and zebras, if they are being kept without a licence under that Act or if a licensing condition is being breached. There is also no need to seize an animal to prove an offence has been committed under the Bill. As the Bill bans the use of animals in circuses, the evidence would need to establish that use. Simply establishing that the circus had a wild animal would not be sufficient.

We do not think that the seizure of an animal is appropriate post conviction. The only offence that a circus operator will have been convicted of is using a wild animal in a circus. To deprive them of the animal entirely would be unprecedented and clearly disproportionate, and would lead to the threat of or concern about legal challenge. I appreciate that there may be concerns about repeat offending, but there is no limit to the fine that can be imposed by the courts, as we discussed in relation to disqualification. The way to tackle the challenge is to escalate fines over time, so a repeat offender would soon find themselves out of business.

As I have already outlined, where there are welfare or public safety concerns, the Animal Welfare Act and Dangerous Wild Animals Act provide the powers to seize animals. On those grounds, I urge the hon. Member for Plymouth, Sutton and Devonport to withdraw the new clause.

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[Mr Carmichael]

I do not wish to detain the Committee for any great time, but the point made by the hon. Member for Ipswich about the power of police constables in relation to the exercise of search and seizure options is substantial and deserves the Committee’s attention. I come at it from the point of view of someone who, many years ago, made a living in the criminal courts as a solicitor, having worked as a procurator fiscal depute in Scotland and later as a defence solicitor.

I am aware of the presence of the right hon. and learned Member for North East Hertfordshire, who is a much more eminent source and should be taken much more seriously than me on these matters, but there is a small advantage from never having achieved such eminence: one perhaps has a better and fuller understanding of how things work at the sharp end and the practicalities of these matters. I am influenced in my thinking in particular by my experience working as a prosecutor, where the overwhelming number of reports we received—well in excess of 95%, I would guess—came from the police. However, there was always a small number from other reporting agencies including the Health and Safety Executive, the RSPCA—occasionally—the television licensing authority and the British Transport police.

It is fair to say that the approach taken by the other reporting agencies was not always as focused on a proper understanding of the laws of evidence as that evident from police reports. I say that gently, and not in any way to criticise those other bodies, because they all existed principally for other purposes. People do not become RSPCA inspectors or health and safety inspectors to gather evidence for prosecutions; people generally become RSPCA inspectors because they care about the welfare of animals, so that other focus is secondary.

To put it bluntly, people often do not understand the full legal significance of the way in which they go about their business. For that reason, there is substantial merit in giving police constables powers under the Bill. It is not necessarily desirable to leave it to the choice of the inspector to take along a police constable as one of the two other people they may take with them. If police constables are to be brought into inspections on a multi-agency basis, they should be there in their own right, able to exercise their own professional judgment as police officers and gatherers and observers of evidence, not simply as a bit of muscle behind the inspectors who have powers under the Bill.

The right hon. and learned Member for North East Hertfordshire points out, quite fairly, that anybody who is with an inspector has the powers of an inspector, but that is to be exercised under the direction of the inspectors, so in effect the only way in which a police constable can exercise the powers of an inspector is if they do so at the instruction of an inspector.

As a procurator fiscal depute, it was part of my job—because that is how the criminal justice system works in Scotland—occasionally to direct the police in an investigation. One always did that with extreme care and humility, because the police are exceptionally professional, but I, as a professional prosecutor, had a good understanding of the laws of evidence and that was how I was able to do it.

I just venture to suggest that an inspector given powers by the Department for Environment, Food and Rural Affairs under this schedule would not necessarily have the necessary background and understanding of the laws of evidence and procedure, and that ultimately, if things went wrong procedurally, we would not see successful prosecutions, which should be the outcome of a criminal offence.

I do not ask the Committee today to reject the schedule being agreed to as the schedule to the Bill, but I will say to the Minister that this is a serious matter requiring further consideration and that he should, if he can, undertake to give it that consideration. Otherwise, the House will, I think, want to revisit the matter on Report. Failing that, it will be, I suspect, given more rigorous and learned scrutiny in the other place.

[Sandy Martin]

Following the right hon. Gentleman’s statement, which I largely concur with, I think that I ought briefly to make clear my view on this matter. We have a society in which people expect the rule of law to be maintained by the police. At the moment, the police face all sorts of problems, not least the lack of resources and of police officers. However, I think that most normal people in this country would expect that if any law were being broken, a police officer would be able to enforce that law, whether or not they had been invited in by somebody from DEFRA. I urge the Minister to think again about why it should be necessary for an inspector from DEFRA—an appointed inspector—to invite a police officer along with them before that police officer can uphold the law.

[Sir Oliver Heald]

I thank the right hon. Member for Orkney and Shetland for the flattering picture that he painted of me.