Environment, Climate Change and Land Reform Committee

Meeting date: Tuesday, June 13, 2017

Official Report 539KB pdf

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Wild Animals in Travelling Circuses (Scotland) Bill: Stage 1

Agenda item 2 is an evidence session on the Wild Animals in Travelling Circuses (Scotland) Bill with a panel of stakeholders. I welcome Melissa Donald, the Scottish branch president of the British Veterinary Association; Mike Flynn, the chief superintendent of the Scottish Society for the Prevention of Cruelty to Animals; Nicola O’Brien, the campaigns director for the Captive Animals Protection Society; and Liz Tyson, a consultant with the Born Free Foundation.

Members have a series of questions to put to the panel. Please bear it in mind that matters may arise from the evidence that may require witnesses to get back to us in writing. I thank you for your co-operation and ask Emma Harper to kick things off.

Good morning, panel. There has been a lot of discussion of the issue of welfare versus ethics as we propose this ban on wild animals in circuses. What are the witnesses’ thoughts on the advantages and disadvantages of pursuing a ban on ethical rather than welfare grounds, and what are your views on the three criteria that are used to propose the ban: the impact on respect for animals, the impact of the travelling environment on an animal’s nature and the ethical costs versus benefits? Also, how clear is the purpose and policy objective of the bill?

The view of the Born Free Foundation is that a ban could have been introduced on welfare grounds. That is equally true for the policy process in England. That said, we do not believe that the two concepts are mutually exclusive; we think that ethics and welfare are inextricably linked. Our concern for welfare is inevitably going to be either based on or informed by ethical decisions.

I saw that one of the questions raised in a previous evidence session was about how the issue of transport fits into the ethical bracket, because that is surely more focused on welfare than on ethics. However, when we talk about respect for wild animals from an ethical perspective and about respecting their natural needs and behaviours, it fits perfectly to say that it would not be ethical to transport lions, tigers or elephants in the backs of lorries, as that frustrates their ability to show their natural behaviours.

We would have liked the ban to be brought in on welfare grounds, partly to see that aspect of the Animal Health and Welfare (Scotland) Act 2006 tested in fulfilling that, but we are happy with the proposal to introduce a ban in the most expedient way possible. If that is via ethical grounds, we agree that the criteria of respect for animals and so on are all really important.

We first got involved in the issue in 2007, when a Westminster committee was set up but refused to take anecdotal evidence on the welfare aspect. That is why the ethical aspect came into consideration. I have always thought that wild animals should be banned from travelling circuses. I am happy to say that that should be on welfare grounds, and it is a bit of a no-brainer from the ethical point of view. There is no real benefit in having certain species in circuses other than entertainment.

Does it matter what the grounds are for the ban? Is it just that we need a ban?

I think so. CAPS has worked on the issue for 60 years, and our interactions with the public show that there is a mixture of reasons for concern. People think that the inherent nature of the travelling and of training and making those animals perform is a welfare concern. Nevertheless, I agree with Liz Tyson that it is also linked to ethics because people feel that it is wrong to do that to animals.

That may stem from the fact that they think that it compromises the welfare of the individual animals but, as the Government itself has pointed out in its policy documents, there is a growing public opinion about how we see animals, and people just do not feel that it is right for us to use animals in that way. However the policy is delivered, it is meeting the need to respond to those viewpoints from the public. That is the priority, and it is also for the good of the animals themselves.

The last time that we took evidence, the witnesses talked about the five freedoms for animals—the freedom from hunger and thirst, the freedom from pain and discomfort, the freedom from injury, the freedom from fear and distress and the freedom to express normal behaviour. Can animals that are in a circus environment experience the freedom to express normal behaviours?

I would say categorically no. They might have freedom from injury and disease, because there is the potential for veterinary care, but in terms of their natural behaviours, natural environment and social groupings and the ability to make choices about their day-to-day life, I would say that they are severely frustrated. In some circumstances, it will be impossible for their needs to be met.

I agree. We see some stereotypical behaviours in animals in circuses and other facilities. Those are behaviours that animals perform that are unusual, that serve no function and that we would not normally see in animals in the wild, such as a tiger pacing up and down in a small area or shaking its head from side to side. Such behaviours are recognised as an indicator of the impact of captivity on animals, and they are seen in wild animals in circuses, which can show that they are being deprived of the ability to perform the behaviours that they would perform naturally.

Of course, if we compare the environment of a circus and long hours of confinement to what the animals would naturally experience in the wild, we can see why the circus environment may not meet those animals’ needs.

Given what you have just said, what are your thoughts on the penguin parade at Edinburgh zoo or displays of wild birds of prey at agricultural shows?

Our organisation is also opposed to the use of animals in those ways, because we think that it does not respect the three reasons that were set out for the bill. We do not think that it fulfils the objective of respect for animals. Parading or displaying animals as a form of entertainment is inappropriate.

Our organisation opposes the use of animals in falconry, as there are similar ethical and welfare concerns about animals being used in that way. However, we are aware that we are here to talk about circuses in particular, and that is the issue on which the public has responded through the consultation.

We fully support the bill as it is drafted. We should note that the penguins at Edinburgh zoo have a permanent enclosure, and for the bulk of their time they are able to exhibit more natural behaviours. Also, falcons and similar birds need to be exercised by flying and, in a sense, the display is a way of exercising them and teaching them to grab food. That is a different matter from the transportation of animals, which is the issue that the bill deals with. Emma Harper referred to the use of the phrase “travelling circuses”. The whole point is that the animals are travelling and space is limited, so species might be kept next to one another inappropriately, which would induce fear.

Let us explore that at this point. Your submission talks about the impact of group housing on aggression and normal behaviour. Can you expand on that?

When there is only a certain amount of room to transport animals, fear is induced in them, and the first thing that a lot of species do when they are scared is fight or try to appear bigger than they are. They want to dominate the situation in order to tell the other guy, “Hey, don’t mess with me,” even though they feel scared inside.

In bullet point 7 on page 6 of your submission, you say:

“We believe that this ban should cover all wild animal species without exception.”

How does that differ from what is proposed?

It would ensure that there were no loopholes and that people could not argue that a particular animal is not a wild animal. It would make the ban really clear.

How do you propose that that should be done?

It would be done through the definitions that are already in the bill.

Are there any possible loopholes in the bill as it is drafted?

No, not as it is drafted at this point.

What are the panel’s views on the general scope of the bill? It does not include static circuses or transportation and keeping of animals that are part of a travelling circus. It also does not cover other forms of animal performance, which have been touched on already.

As I said earlier, the reason why the bill has come about is historical. When it was first mooted a decade and a half ago, England and Wales were talking about a total ban on circuses. At that point, one of the most famous circuses, which was based at its winter quarters in Blackpool, tried to buy a site in Kilmarnock to which to relocate.

There is a parallel between the bill and the mink bill that became the Fur Farming (Prohibition) Act 2000. We did not have any mink farms in Scotland, but because it was being proposed that they would be banned down south, we implemented a ban up here so that fur farms could not relocate. The context of the bill has not really changed in 15 years. I see it as a preventative measure.

I hope that the committee understands how circuses have changed over the years. I have been in my job for 30 years and was, for 7 years before that, a keeper at Edinburgh zoo. To return to Finlay Carson’s question, the penguins there are free to come and go on the parade; they are not forced to go out. Thirty years ago, about six travelling circuses used to come to Scotland with elephants, tigers and lions—the Il Florilegio circus even had giraffes, hippos and so on—but that has diminished over the years; I believe that there are now no circuses based in Britain that have any large cats—the last of them went a couple of years ago. You will know the story of Anne the elephant, who was the last elephant to be used in captivity. People are not clamouring to see such performances now, so circuses do not add animals to their collections in order to get people in. Perception of that has changed in the past 15 to 20 years.

If it is a preventative measure, why not add static circuses as well, so that animals will not appear in them?

Pass. I do not know. However, there is a better chance of ensuring better conditions for animals in some static circuses, because the bill takes out the travelling aspect. We have visited every circus that has come here in the past 30 years and some of the animal accommodation has been what we class as being suitable for housing and for sleeping, but there is no way that an animal could exhibit any natural behaviour in such situations.

We have outlined that static circuses could be included in the bill. We interact with the public on that issue all the time; a huge part of our work is to engage with the public, to get people’s opinions and, we hope, to raise awareness. People are concerned that animals are being used to perform in the circus environment, but the travel aspect is also a large part of their concern and it is one of the main arguments that we use for why circuses with animals should be banned.

With regard to the ethical basis for the bill, the issues include the impact on respect for animals and the ethical cost versus benefits. If we are talking about static circuses in the same way as travelling circuses, what people are fundamentally concerned about is using animals by putting them on display and making them perform certain behaviours. I am aware that there are currently no static circuses in Scotland; also, few or none travel to Scotland at present. Therefore, perhaps including static circuses is an option.

10:00  

Do you have evidence of wider public concern about animal performances beyond travelling circuses? The consultation was very much about travelling circuses, and I am struggling to know what public opinion is.

To my knowledge, no other consultations or polls have asked specifically about that. I am going by our and other organisations’ history, as well as our work with local people. As you are aware, there are council bans on the use of animals in circuses in Scotland and elsewhere in the country. We have engaged a lot with the public, who have supported and rallied for a ban. The conversations that we have are not about one type of circus over another; use of animals in circuses is the concern.

Having been part of the advocacy and campaigning in Scotland, England and, to a lesser extent, Ireland over the past seven or eight years, I wonder whether the reason why static circuses are not included in the bill is that everything started on the basis of considering a ban on welfare grounds. England then rejected the idea of a ban based on welfare grounds and invited Scotland to join in proposed legislation on the basis of ethics. When a ban was being considered purely on welfare grounds, travelling was a huge part of the issue. The fact that travelling is still an issue is really a hangover from that, but I agree with Nicola O’Brien that, if we say that it is unethical to use wild animals in circuses, although travelling may impact that, the wider issue is that they should not be used.

That said, to return to what we said before, we are really grateful that Scotland is introducing a ban. We understand that the consultation has been carried out with travelling in mind. That perhaps explains why static circuses have been left out of the bill.

The housing environment in static circuses is more permanent and can be better adapted to cater to animals’ welfare needs. As the other witnesses have said, the consultation highlighted that travelling is the main issue.

The Cabinet Secretary for the Environment, Climate Change and Land Reform has put it to us that the Government intends to legislate on other areas of animal performances. However, that is not included in the bill. One of the local authority witnesses last week said that it might be better to have a catch-all approach rather than a piecemeal approach. What is your view on that?

In what sense do you mean “a catch-all approach”?

It was put to the committee that the bill could include all the other areas of animal performance. I am interested in your views on targeting circuses specifically, rather than taking a wider approach.

That is a difficult one. The Born Free Foundation campaigns for wild animals, works to protect them and opposes their use in captivity. In an ideal world, we would love all those things to be dealt with equally. However, we are aware of the practicalities of the matter.

We were heartened to be told in a meeting with civil servants, which we attended along with a number of the other witnesses who are present, that mobile zoos and reindeer displays, for example, may be looked into soon. We certainly welcome that. I would be reluctant to say that they should be considered now, because I imagine that it would be a huge amount of work and would cause a huge delay, so we could miss the opportunity to introduce the ban, which is incredibly important.

In an ideal world, we would not take a piecemeal approach, but in the practical world, we would rather see the bill being passed and then continue to work with the Government to proceed on other issues.

In our submission, we have included comments about mobile zoos and similar uses of animals. I will go back to ethics, which is what we are talking about today. Animals in mobile zoos have similar, if not the same, welfare considerations as those in circuses. The report that was commissioned last year by the Welsh Government from Dorning et al has been mentioned. Its remit was expanded from animals in travelling circuses to other forms of travelling entertainment with animals, which included mobile zoos. It came to the same conclusion—that there are grounds for a ban based on animal welfare, which we support.

Our organisation shares Liz Tyson’s view; we are torn. We campaign for a complete end to the use of animals in such ways, but we want the bill to move swiftly so that we can get its measures in place. A bill of this nature is grossly overdue in the United Kingdom; Scotland leading on this would be a fantastic and significant start.

Are there any other views on that?

It may be down to public perception; the vast majority of the surveys that I have seen are against the use of wild animals in travelling circuses. There is a growth in bird of prey demonstrations and what are classed as mobile zoos. I would call them mobile exhibitions because they are not zoos as such—they are not taking tigers and lions about. Anyone here could hire one for a children’s party or school for £80 or £100; you pick the species that you want—mainly from snakes, small mammals and spiders—and they are all travelled. We have concerns that snakes are being travelled alongside ferrets and other things, which is going down the line towards circus activity.

Circuses are the priority, given the history, public opinion and the work that has already been done. We included mobile zoos because we want to point out strongly that they need in due course to be taken just as seriously, after the passing of the bill. We have heard a few highlights from the catalogue of issues: the travelling aspects, with many animals in small crates or boxes; social animals being kept singly; animals being on the road for many hours and at events for many more hours; and the handling, that may go beyond circuses, with many animals being passed around by children and adults. Mobile zoos are a relatively new industry, which is only just coming to the attention of authorities such as local authorities, the Government and even non-governmental organisations and animal welfare groups. We wanted to include them, because they are worth the same consideration as circuses, in the future.

Is there a counterargument that properly run displays of that type encourage respect for animals and greater understanding? Is there a balance to be struck?

That argument has been used about circuses in the past. Our organisation has worked on the issue for 60 years—although not me personally. Having read about the campaign, I know that the arguments for circuses in the past were similar—that they were a way for people to view and get close to wild animals, and potentially to learn about them, that they did not have before. As we have pointed out, our attitudes to animals as a nation have changed and there are now ways to achieve knowledge and respect for animals without having them in front of us to handle and to take photos with them.

I remind members that I am the convener of the cross-party group for the Showmen’s Guild and an honorary member of the Showmen’s Guild Scottish section. I support the principles of the bill, but I have concerns.

At last week’s committee meeting, Martin Burton, representing the Association of Circus Proprietors of Great Britain, stated his concerns about a lack of clarity regarding definitions in the bill:

“Clearly, the economic impact on circuses with wild animals that already do not come to Scotland will be zero. However, the economic impact on animal displays in shopping centres ... hawk and wild bird displays at outdoor shows ... Santa displays ... reindeer ... and, eventually, on zoos will be massive. That is the direction that the legislation is going in—it will eventually close your zoos.”—[Official Report, Environment, Climate Change and Land Reform Committee, 6 June 2017; c 41.]

Nicola O’Brien alluded to that issue a few minutes ago and Finlay Carson mentioned penguins.

Does the panel agree that the bill relates to travelling circuses and therefore does not cover static circuses and zoos? Do you believe that it covers other animal shows, wild west shows or any show with a different theme, or does it need to be tightened, as per the cabinet secretary’s recent letter?

With regard to the definitions, we had a concern about the definition of domesticated animals, but not about the definition of circus.

When legislation of this sort has been introduced in other countries, the idea is often thrown up that it is the thin end of the wedge—that once it is passed, the floodgates will open and suddenly people will not be allowed to have a pet dog or cat.

If we could impact on animal welfare in zoos and in other situations, we would be very happy, but we are also aware that legislation is tightly and narrowly focused—I think that this bill is.

Since 1981, circuses have been excluded from zoo licensing, and that has worked perfectly; the licensing regime in the UK is specifically for circuses. We have not had falconry shows being accidentally captured by that legislation, and it uses exactly the same definition. A travelling circus is a circus that travels. People know what a circus is; they do not confuse a falconry show in a shopping centre or a mobile zoo with a circus—the precedent of the UK legislation already shows that that does not happen. It is not what anybody who is involved in advocacy and lobbying to introduce animal welfare legislation wants. Introducing one piece of legislation certainly does not open the floodgates to suddenly fixing everything else.

CAPS has expressed concerns about the definition of a circus, has it not?

We have. We understand that there is no need to specifically outline what the word “circus” means, given that there is a general understanding of it. We welcome that approach—we are not saying that “circus” definitely needs to be defined—but with caution, given that we do not want some businesses that we think should be classed as circuses to be excluded.

The decision on the definition needs to come from the Government, on the basis of what it wants to ban. We, and probably the other NGOs that are on the panel, would be happy to help with the definition if that was deemed necessary.

Will you give an example of the type of business that could get through a loophole?

There were comments in previous evidence sessions that, for example, an act that travels with big cats might say that it does not subscribe to being classed as a circus because it does not have some of the more traditional aspects of a circus or the image that the word “circus” conjures in the public’s mind. That is our concern, although whether that means that it would be agreed that such an act was not covered by the bill is an open question. We also do not want to narrow the focus too much, in case we end up with the same issue.

Anthony Beckwith, who represented An Evening with Lions and Tigers, said that his act was outwith the scope of the bill.

To go back to councils, we have 32 councils in Scotland that all work to the Civic Government (Scotland) Act 1982 but interpret it differently. Andrew Mitchell of the City of Edinburgh Council suggested that, if we want to improve how we deal with performing animals, we had better do it

“in one piece of legislation”

and that

“a piecemeal approach ... is not helpful”.—[Official Report, Environment, Climate Change and Land Reform Committee, 6 June 2017; c 21.]

The person from Argyll and Bute Council agreed with him. What is your view on the councils’ interpretation of the legislation?

I am not sure that I understand. Is the person from the City of Edinburgh Council asking for other types of animal use to be brought under the bill?

They are looking for clarification. I mentioned Anthony Beckwith. When he sought clarification from someone in the Scottish Government, they said, “I don’t know.”

10:15  

Since the introduction of the Zoo Licensing Act 1981, any travelling circus has known that it is not a zoo. Circuses have known that well enough to define themselves as circuses so that they do not fall under the licensing regimes for zoos. “An Evening with Lions and Tigers” certainly defined itself as a circus when it was in England, because it applied for a licence, which was refused.

Local authorities might say, “We don’t know exactly how to define this,” but that wriggle room is given in a lot of legislation. It means that we do not end up with absurd situations where, for example, something that is clearly not a circus is defined as one. As Nicola O’Brien said, we want to make sure that all circuses are captured, and common sense would say that an act that performed in a big top with a group of lions and tigers would be defined as a travelling circus. That is certainly how “An Evening with Lions and Tigers” defined itself in England.

A travelling circus is something with clowns and acrobats, if we are considering the definition. That is the grey area that I am concerned about.

I support the bill, but it has been pointed out that there has not been a wild animal travelling in a circus in Scotland for a number of years—I think that Mike Flynn said that. We heard last week that a circus in England hops short distances of up to 27 miles but that travelling more than that would affect the animals. Basically, I think that Melissa Donald agrees with me. I know that the Government wants to stop the use of wild animals in travelling circuses. I am getting research done, but I know that most of the 32 councils have already banned circuses with wild animals from council land.

I will ask my final question. To what extent could the bill’s definition of “wild animal” pose an interpretational challenge?

The problem is less the definition of “wild animal” and more the inclusion of the term “domesticated”. The two are mutually exclusive, but the term “domesticated” has been defined in a confusing way, as it could suggest that domestication simply involves breeding animals in a captive environment for a few generations and taming them. That is very different from the process of domestication, which takes place over millennia and changes animals genetically, physically and physiologically. The definition in the bill could lend itself to people making arguments, which I have heard before, that I certainly do not subscribe to. It would be interesting to hear vets’ opinions on the idea that tigers that have been bred for five generations in a circus are now domesticated, which goes against any scientific information that we have.

The definition in the Zoo Licensing Act 1981 of wild animals as

“animals not normally domesticated in Great Britain”

has been used successfully since the early 1980s. That act does not contain a definition of domesticated animals, but the definition of wild animals has served us perfectly well. We therefore suggest removing the reference to domesticated animals from the bill, because it may become confusing.

I will bring in Mike Flynn. Given your background in enforcement and investigation, how do you view the definitions in the bill? Are you comfortable with them?

Yes. Defining a wild animal as

“an animal other than one of a kind that is commonly domesticated in the British Islands”

means that animals such as camels, which some people would argue have been domesticated in other countries in the world, are seen as wild animals.

The term “circus” is widely known. I do not agree that a circus has to include every aspect that we might think of. The Chinese and Russian state circuses that come here have no animals and have never had animals, but they are still classed as circuses.

I do not have a problem with the definitions. Ultimately, it is the court that decides on this kind of thing. Lots of things that we deal with do not have clear definitions—for example, there is no clear definition of puppy farms in the eyes of the law, but we can still deal with them.

I do not see that that is a problem, but there is a problem with the 32 local authorities having 32 different opinions. That comes across to everyone who is involved in the licensing sector. If someone wants a dangerous wild animal licence in Glasgow, it will cost them £50. In Edinburgh, they will be priced out of the market, so they will be unable to get one. There is no common ground there.

It is great that local authorities have banned such circuses from appearing on their land, but when that rule first applied in Edinburgh, the circuses went to Murrayfield ice rink car park or the Royal Highland showground. If there is a loophole, people will find it. I do not have a problem with the definitions.

Does anyone else want to respond to Mr Lyle’s questions? If not, is Mr Lyle content?

I have a quick wee question. Are llamas, camels and reindeer domesticated animals?

In this country, a llama is classed as domesticated. There has been clear guidance off the back of the 1981 act for some time—there has had to be—and there is a schedule that helps local authorities to understand what is or is not a domesticated animal. Some species of reindeer are considered to be domesticated in some places but not others—I cannot give you the names of the species and subspecies, but they are in the schedule. In the British isles, a camel is never a domesticated animal. There is precedent in the UK statute book on that.

How effective is the UK Government’s licensing system at safeguarding the welfare of wild animals in travelling circuses?

I do not think that it has had a material effect; things have not changed over the years, so I have no comment to make on that.

The travelling aspect has always been our biggest concern. I agree with Mr Lyle that, these days, circuses normally go 15 or 20 miles, or whatever. However, it is commonly known in the livestock industry that the biggest problem with transporting animals is loading and unloading them. There is an element of stress, even if the animals are travelling a short distance. It can be easy to physically handle livestock but not tigers and lions.

Peter Jolly’s circus, which is one of the two that currently have wild animals, performed for a number of years with the act that is now “An Evening with Lions and Tigers”. That act was licensed as part of Jolly’s circus for, I think, two years, and then broke off, came up to Scotland and was in Fraserburgh over the winter. The weakness that that shows is that the proprietor was able to take his animals out of the licensing regime and move them across the border, so that suddenly his act was subject to no meaningful regulations beyond general animal welfare regulations.

It is very telling that, after that, when Mr Chipperfield and Mr Beckwith applied for a circus licence—I understand that they were using the same lorries and accommodation as they had previously used—they were refused, because they did not meet the required standards. It appears that the standard of accommodation had been licensed for two years and then suddenly the same standard of accommodation could not be licensed. There are discrepancies in how facilities are inspected.

Circus Mondao had its licence suspended after numerous warnings from the Department for Environment, Food and Rural Affairs, which are documented. As I understand it, there had been repeated warnings about, for example, members of the public being allowed to have contact with the reindeer when they were in winter quarters and issues to do with the welfare of one of the camels, and eventually the circus licence was suspended. There were all sorts of issues with getting the paperwork together and so on.

It does not look to us, from the outside, as if the system has done anything substantial to improve animal welfare. To be honest, that does not really surprise us. I think that all the organisations that were consulted—or involved, rather, because we refused to participate in the consultation on the measure—said from the outset, “This isn’t going to work”.

As you know, the Scottish Government rejected the regulatory approach, and one of the arguments for doing that was that there is a lack of scientific data on animal welfare. Do you agree with that assessment?

When the Westminster Government introduced the licensing regime, it claimed that the regime would guarantee that high standards of welfare were met—I think that that is what was said, almost word for word. When we asked the Westminster Government what analysis and research it had done to explore how to meet the welfare needs of wild animals in circuses, it responded that it had not done any. Our view is that the approach appeared to be one of setting the benchmark at the best circus standards that can be achieved, but whether those standards ever met animal welfare needs was never confirmed, and we argue very strongly that they cannot do so.

So there is a real issue with the data and enforcement.

Yes.

That is very helpful. Do other members of the panel have any observations on that?

Liz Tyson has covered the examples that I had with regard to Circus Mondao. Our only general comment is that licensing and continuing to allow wild animals in travelling circuses does not address the ethical concerns, which are what the bill is based on.

In earlier answers to my colleagues, you touched on what might be your ideal bill, but if you were to start from scratch to protect wild animals in travelling circuses, would you add aspects that do not appear in the bill or would you basically endorse the bill? Is there anything that you would take away or add?

The only substantive thing is that we would remove the domestication definition, for the reasons that we have outlined. We understand that the issue is display, performance and exhibition; banning ownership goes into completely different territory, which could arguably be discriminatory. We support the bill’s aim to ban wild animals in travelling circuses, which we have all worked towards for a long time.

I agree—we are happy with the bill’s focus on wild animals in travelling circuses. We, too, highlight our concern that the domestication definition could be open to challenge.

As I said in our submission, I see the bill as a preventative measure—the intention is to stop the issue before it starts. I have known every circus that has come to Scotland in the past 30 years and the circus community is very law abiding. No one is going to break the law once they know that there is something that they are not supposed to do here. Given that, as Martin Burton said last week, the ban will have no financial impact on the industry, I do not have a problem with it.

The BVA supports the bill as it stands—we would not add anything to it.

Thank you. That is very straightforward.

I have some questions about the enforceability of the legislation. David Kerr of Argyll and Bute Council told us:

“Moving things to an ethical basis could be very profitable for defence teams, because what we need when we enforce legislation is a clear definition.”—[Official Report, Environment, Climate Change and Land Reform Committee, 6 June 2017; c 17.]

Are there implications for the enforceability of the bill given that it has an ethical rather than a welfare basis?

Mike Flynn is probably better placed to answer that, but I have a small point. As there is strict liability, if someone operates such a circus, they will have breached the regulations—full stop. I do not consider that the background to the bill—whether or not it is on welfare grounds—will have an impact when it comes to enforcing the law. It seems clear to me that if you are operating a circus with wild animals you are in breach of the legislation. I would not necessarily see the basis as an issue.

I agree. Although the bill is based on ethical principles, because previous committees said that there was not sufficient evidence to base it on welfare, the offence is black and white—if you operate a travelling circus, you are committing an offence, regardless of whether the bill is ethical or welfare based.

I agree.

Do you have any thoughts on the proposed enforcement approach and provisions, particularly the discretionary nature of the obligation on local authorities to enforce the bill?

That crops up in lots of legislation, such as the Animal Health and Welfare (Scotland) Act 2006, which says that local authorities may enforce the act, not that they shall enforce it. That is common in many aspects of licensing and will not make any difference here.

I am not sitting here banging the Convention of Scottish Local Authorities drum, but one of the problems is that local authorities are vastly underfunded and licensing provisions cost money. I am a big supporter of the idea that any licensing should be self-funding, because local authorities are not going to take money from essential services to provide something that—no disrespect to local authorities—many of them are not trained to do. The inspectors do not know half the species that they are dealing with.

10:30  

I am thinking of the powers in the bill. I accept the point about the need for resourcing, but do you have any thoughts about the lack of any provision that would enable local authorities to prevent a circus from operating while they investigate and report the matter to the procurator fiscal or obtain records from the operator?

This is in the bill. The local authority has the right, with a warrant, to enter a premises and gain information to send to the procurator fiscal to establish whether an offence has been committed. Other legislation extends to seizing the animal involved, but no one is going to need to seize an exotic animal from a circus, given that we are talking about a law-abiding community. That is why I have said that I do not see that happening.

I suppose that the issue is local authorities being able to serve a notice to prevent the activity from going ahead while the investigation is on-going.

Technically, if, as soon as the local authority took action and decided to report the issue to the procurator fiscal, the show moved 5 miles down the road and started again, it would be a subsequent offence and so on. I just do not see circus people doing that.

I want to continue the line of questioning in relation to enforcement. Does any member of the panel have views on the proposed maximum fine level, which is level 5? Are you confident that that level of fine will act as an appropriate deterrent to the use of wild animals in travelling circuses in Scotland?

I am. In his evidence last week, Martin Burton said that if you fined him £5,000 you would put him out of business. When I was a child it was hard to get into the circus—they were mobbed. These days some of them have very poor attendance and very high overheads. I think that £5,000 is proportionate.

It is worth adding that, as Mike Flynn said, once the ban is in place, people are generally likely to abide by it. I do not think that the circus community and circuses with wild animals will try to get round it. They will not be happy about it, but that will be it. We do not have to worry about them trying to breach the ban or get round it in some way.

Thank you.

That concludes the evidence from the panel. I thank the witnesses for their useful contribution.

The committee is slightly ahead of schedule, so I suggest that we move into private to take item 5 and resume in public at 11 o’clock, when we will be joined by the cabinet secretary for the next part of the meeting. Do members agree?

Members indicated agreement.

10:33 Meeting continued in private.  

11:02 Meeting continued in public.