Environment, Climate Change and Land Reform Committee

Meeting date: Tuesday, June 27, 2017

Official Report 645KB pdf

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

Under agenda item 2, we will take evidence on the Wild Animals in Travelling Circuses (Scotland) Bill from the Cabinet Secretary for Environment, Climate Change and Land Reform and from Scottish Government officials.

I welcome all our witnesses. We are joined by Roseanna Cunningham, the cabinet secretary, and by Grant Campbell, who is a bill officer, Angela Lawson and Andrew Voas—who it seems is a regular visitor to the committee at the moment, on this issue—all from the Scottish Government.

Cabinet secretary, unless you have anything specific to say at this point, we will move straight to questions.

Good morning, cabinet secretary. It has been about three years since the consultation was held on whether wild animals should be banned in travelling circuses. In that time, has there been any new scientific evidence or have public views developed further?

There has been some opinion polling in that period. In 2016, a YouGov poll asked 1,000 adults for their views on different animal welfare issues. The bill is being introduced under an ethical heading rather than an animal welfare one, but the survey gives some indication of public opinion. Some 76 per cent of respondents were in favour of the ban. I am aware that there is currently an online petition that has received over 2,000 signatures in support of the proposed prohibition. I am not sure that we could call that scientific, but, as a measure of where public opinion is, it is probably fairly indicative.

Because we are introducing the bill on ethical rather than welfare grounds, it is not so much the science and the evidence around welfare issues that become important here; it is a different question.

There has been a gap between the consultation and the introduction of the bill. Some of that just reflects the time it takes to draft bills and to decide on the process by which they will go into a programme for government. That is where we are.

So there have not been any significant changes in that three-year period.

Not really. We could argue that the YouGov poll is probably quite a strong indicator that what we consulted on and understood to be the position among the Scottish public is in fact the position.

The volume of correspondence on the issue has often been referred to as a factor in justifying the legislation. How do levels of correspondence from the public on the issue compare with those received on other issues, and how has the volume been quantified?

We have only counted it between January 2014 and May 2016. In that period there were more than 150 pieces of correspondence on the matter and five parliamentary questions. Since then, we have had more on the issue than we have had on animal sanctuaries, rescue centres, rehoming activities and breeding of and dealing in animals. The issue exercises people’s imagination in a different way, and therefore they are more inclined to communicate their views on it.

10:00  

I remind members that I am the convener of the cross-party group in the Scottish Parliament on the Scottish Showmen’s Guild and an honorary member of the Showmen’s Guild Scottish section. I support the intentions of the bill but have reservations about how it can be implemented.

Good morning, cabinet secretary. When I asked two council officials whether they had concerns about the bill, Andrew Mitchell from the City of Edinburgh Council said:

“It strikes me, having read the bill and listened to the evidence so far, that it will perhaps not be as easy to enforce as has been suggested.”—[Official Report, Environment, Climate Change and Land Reform Committee, 6 June 2017; c 17.]

David Kerr from Argyll and Bute Council said that he shared many of the concerns.

Last week, I had a work experience pupil, Angus Holms. He contacted every council in Scotland regarding its position on wild animals in travelling circuses. Most councils in Scotland have a ban on circuses with wild animals or will refuse them licences on their land. Why do we need the bill if most councils oppose wild animals in circuses?

First, you have used the word “most” not “all”. If we simply leave the matter up to local authorities, we get differences between one local authority and others and the exact position becomes confusing. Local authorities might also choose to apply things slightly differently, which also introduces variation.

We have worked with local authorities on the matter—I think that we have worked with the Convention of Scottish Local Authorities—so it is not that we have taken no account of the local authority position. The bill is the right thing to do at a national level to provide clarity to everyone who is involved in the business that Scotland will be a no-go area for wild animals in circuses.

Who is the bill intended to cover? In evidence to the committee, Anthony Beckwith stated that he believed his show was not a circus. He said:

“It is called ‘An Evening with Lions and Tigers’”.—[Official Report, Environment, Climate Change and Land Reform Committee, 6 June 2017; c 27.]

He also said that he had asked a Government official to clarify whether his show would be covered by the definition, and the official had responded, “I don’t know.” That was his evidence; I do not know whether that meeting took place.

Do you intend to tighten up the bill to cover shows without the word “circus” in their title?

On the use of the word “circus”, as someone whose background is in law, I know that overly defining something does not help because we then presume a list of things that are not in the definition. Should there be any challenge, the commonly used definition of “circus” would be for the courts to consider. On the notion that we would have a commonly used word to describe a performance, the court would decide whether or not the performance was a circus. It would not have to be called a circus to be one. Arguably, not everything that is called a circus would be of the nature described in some of the conversations that we have had. For example, I am conscious of the Cirque du Soleil, which calls itself a circus but is not one in the traditional sense of the word. That is the right way to approach the matter.

I will ask Andrew Voas to come in because of the discussion with which you opened your comments.

Before you do that, cabinet secretary, I want to be clear on the matter. The dictionary definition of a circus is along the lines of: “a company of acrobats, clowns and other entertainers that gives performances, typically in a large tent”. Therefore, a travelling circus would be easily understood. However, in the example that Mr Lyle gave—before we consider whether the conversation that he mentioned took place—there are no acrobats or clowns but former circus animals. The organisation has applied for a circus licence in England and is run by circus proprietors. We have a wide definition of “circus” but it might not capture that performance. Do you accept that?

It is about what people commonly understand. I defer to the lawyers who are present, so we can hear from Andrew Voas and then them. However, if someone puts on the kind of performance that Mr Lyle is discussing—this business of “An Evening with Lions and Tigers”—I am pretty sure that a court would call that a circus or define it as one.

It is not so much a dictionary definition as a commonly understood definition, and that is a normal thing to do in law. We are not proposing to do anything unusual by not defining it too closely, because the minute you start listing things in a definition, it gives rise to exactly the sort of question that you are asking. If there are no acrobats, is it a circus? Is the Cirque du Soleil properly calling itself a circus if it does not have animals in it?

The cabinet secretary is right. A definition that lists a specific thing—a circus is a “performance including acrobats and clowns”, for example—means that organisations that put on a circus-like performance will merely omit the clowns and acrobats and keep everything else in order to avoid meeting the definition of a circus. We need to ensure that things that look like a circus, walk like a circus, and talk like a circus are considered to be a circus.

Courts are well versed in taking the ordinary interpretation of a word; they do it all the time. For example, the equivalent English regulations that license animals for use in circuses do not define the term “circus”. It is left to ordinary interpretation because a court knows what a circus is. The ordinary man on the street knows what a circus is. We want to ensure that circus proprietors do not omit one specific aspect of performance to avoid having to meet the rigid definition of a circus.

Andrew Voas might have comments about the specific point but it would turn on the facts and circumstances of the case. If there was a performance that was more akin to something that could be found at Edinburgh Zoo, such as a display of wild birds within an educational forum and with zookeepers, it would be very different from something that is performed in a ring with dressed-up entertainers and with jokes and laughing. It is the nature of the performance rather than the name that matters. It really depends on what “An Evening with Lions and Tigers” actually is. Anthony Beckwith has said what he thinks it is but it would really be for a court to decide whether the performance is a circus.

I understand that. I gather that, in earlier evidence, you said that the definition of a circus would be the “Oxford English Dictionary” definition, and that is quite specific. It mentions travelling companies, acrobats, clowns and so on. Can you make a distinction between your general definition and what you have said on the record?

It is the commonly understood definition of “circus”. The courts will look at what is reasonable to describe as a circus and what is commonly understood to be a circus.

One of the reasons why that is done is that common understanding can change over time. We do not want to trap legislation in a specific period if the common understanding begins to change. That is why the phrase “reasonable person” is always used. It stays flexible and reasonableness can be defined in a particular time and place, so you do not have to keep changing it. That is why we do not overly define in legislation.

That probably opens the door for us to move to Andrew Voas to talk about this particular example and whether, in your interpretation, it would be covered.

First, I would like to clear up the issue of what was said at the meeting that we had with the circus industry. We agreed that we would hold the meeting under the Chatham house rules, so we would not attribute personal comments and what had been said. However, as it has been raised, I would like to clear it up. I have discussed this with colleagues and they have confirmed that at no time did I just say, “I don’t know” with regard to whether—

I did not name anyone. I thought that it would be unfair.

I think that my name appears on the record. You did not say that but I know that Anthony Beckwith did.

I might well have said that, if I was being given examples of various types of show or enterprise, I do not know what “An Evening with Lions and Tigers” entails but I would have probably gone on to say that, if it entails things that would commonly be understood to be a circus, it would be caught by the bill.

Regarding the particulars of “An Evening with Lions and Tigers”, which I understand is now called “Big Cats Live”, that uses former circus animals and is run by circus proprietors and people who have been involved with circuses all their lives. I do not know exactly whether the show is performed in a tent or a circular arena, but it is a travelling show of some sort. I believe that lions and tigers perform the sort of tricks or display behaviours that arise from the training given for circus performances. I believe that the show is licensed as a circus in England and is operated by somebody who calls himself the last lion tamer in England. I think that most people would agree that it is more than just one clown short of a circus; it is actually a circus.

Thank you.

Some members of the public believe that animals should not be used in zoos, fêtes or galas. Martin Burton, the chairman of the Association of Circus Proprietors of Great Britain, said:

“I am an animal welfarist, too. However, once we start banning things, particularly on ethical grounds, it will clearly spread. If it is not ethically right to have a wild animal in a circus, it is not ethically right to have a wild animal appear at a gala ... in a shopping centre or in a zoo.”—[Official Report, Environment, Climate Change and Land Reform Committee, 6 June 2017; c 43.]

Is the bill the rocky road to banning reindeer at Christmas shows and to banning zoos and wildlife parks and all other such shows that the public attend?

No.

Thank you.

That was short and sharp.

I am interested in ethics and the welfare of animals, whether they are performing or being exhibited or displayed. At our meeting a couple of weeks ago, I tried to tease out the difference between ethics and welfare, because it is difficult to separate them. I would like to hear your thoughts on whether the ban is being pursued on ethical grounds or on welfare grounds.

On ethical grounds, we are looking at the concept of people taking animals that are not domesticated—wild animals—and taming them. “Taming” is the word that is used but, in effect, it means finding a way to coerce them into behaviours that are not natural. That is an ethical issue. The animals might be well fed and looked after, and there might not be some of the individual welfare issues that have been discussed, but there is a sense in which that is not the right way to manage wild animals.

Domesticated animals are used in all sorts of circumstances for all sorts of reasons, but they are accustomed to behaving in certain ways and they are not usually distressed. If they were distressed, there would be a welfare issue. People can see that dogs like to please their masters—they like to work and run about. There are lots of animals in that category, which are accustomed to working and being with human beings, and that sets them apart. The ethical issues are about wild animals that are not domesticated and so not accustomed to living and working with human beings and the use of a management method by which such animals are coerced almost to act against all of their better instincts.

There are a lot of specific welfare issues. It could have been difficult to approach the matter on that basis because, as I said, the lions and tigers might be well looked after and healthy, and they might not exhibit distress. It is the ethics of the situation that lead us to the view that people should not use animals in that way in those circumstances. To deal with the issue on welfare grounds, we would need to have a lot of detailed information about the actual circumstances, and the investigation of that would be difficult because some of the animals would be very well looked after and others would not necessarily be as well looked after.

10:15  

Thank you for that clarification. My approach is that it is easier to define ethics than it is to define welfare. Is it just time that we stopped having wild animals, such as tigers and lions, in circuses for performance, exhibition, display and entertainment purposes?

We would not have had a manifesto commitment to introduce the bill if we did not think that it was time to look seriously at the issue, and that is what we have chosen to do. However, a lot of animals are domesticated and accustomed to working with us—indeed, right around the world, they do jobs for us enthusiastically—and those animals are in a different category.

Given that the impact of travelling is one of the three ethical concerns that have been cited to justify why wild animals should not be transported by circuses as long as they are not being used in performance, should the legislation not go further and ban all travelling circuses, whether or not the animals are performing?

Sorry, but I do not quite understand that question. Why would a travelling circus have animals if they were not performing?

The bill is based on three ethical grounds, one of which is the impact of travelling. Why does the bill not prevent wild animals from travelling as long as they are not performing? The example that we were given was of circus animals wintering in the north of Scotland. The bill will not cover those animals. Why would that be?

I suppose that we were trying to ensure that, first, we could manage the legislation and get it passed without overly complicating matters.

There are a number of issues in that regard. There is no general ban on the keeping of or the transportation of wild animals by members of the public or by charitable or commercial organisations. You need to remember that the bill is about the ethics of performing animals and not, at this point, about the travelling of those animals. We want to keep those two issues separate.

There are other reasons to move wild animals around. For example, they go from safari park to safari park. We considered that, if we began to go into that level of detail, the bill would become incredibly complicated and some of the issues that the committee is raising about the definitions in the bill would become even greater. We consider that some of the ethical arguments on the issues that you raise could be weaker. Because we have chosen to go down the ethics route, it was better to stick with the much stronger lines and deal with those.

We are confident that what we have done in the bill is the right thing to do now. That does not preclude our coming back and looking at some of the other ethical issues about the use of wild animals. At present, we are looking at performing wild animals and their use in travelling circuses. Once we begin to explore some of the other issues, it becomes infinitely more complex.

Is your rationale that circus animals that wintered here would be in a static situation and that, as long as the animals were not were not performing, their welfare considerations would be covered by organisations such as the Scottish SPCA?

Yes. The ethical considerations would not apply. In such situations, those would be covered by the welfare side of things. For welfare issues, we would have to be much more careful about what we were looking at.

Within the United Kingdom, people move animals from one safari park to another. The animals do not perform after having been moved; they are static in a safari park, but their behaviour and lifestyle are much more akin to their normal wild existence than they would be if they were in a circus.

The Scottish National Party manifesto committed to banning the use of wild animals in circuses, and it did not refer exclusively to travelling circuses. Why does the bill not cover static circuses, particularly given that you have said that a number of ethical justifications for banning the use of wild animals would apply to animals in static circuses? We are looking at wild animals performing. That is one of the things that you said you are looking at in the bill, so why are wild animals in static circuses not covered?

There is a slightly weaker ethical argument around that situation. For example, if there was well-designed permanent accommodation in a fixed location and good environmental surroundings were provided, the ethical argument would be weaker than the argument regarding travelling circuses. I think that you took some evidence that the situation is worse in travelling circuses than it is in static circuses.

It appears that you are in between. In response to my first question, the justification that you gave for the bill not applying to animals that are involved in circuses and are being housed in Scotland was that, if they were not performing, that was not quite so bad ethically. Your answer to this question is that it is all about the travelling, because the animals are in nice cages or whatever.

It is about both, really. It is about the travelling and where the animals are kept. We could get into arguments about the definition of “static”, but overwintering animals is manifestly not running a circus. The animals are being housed and looked after, but that is manifestly not a circus. If we were to get into discussions about static circuses we would have to look at a much wider range of ethical issues around how animals are managed in a static environment. The bill is about travelling circuses and the use of wild animals in those circuses.

The answers that you have given do not stack up, as far as I am concerned. You say that, in a static situation, the accommodation and all that will be better. That is all about welfare; it is nothing to do with ethics. The ethics of forcing wild animals to perform are exactly the same in static circuses as in travelling circuses. The bill is built on ethical issues rather than welfare issues, but your answer to the question on static circuses was all about welfare.

Some of the evidence that you have received veers into welfare issues, and the evidence that I have quoted tends to talk about welfare, too. We have stuck to travelling circuses because we think that the ethical arguments are strongest there. When you move away from travelling circuses, the ethical arguments become much more mixed with welfare arguments and it becomes harder to tease out the two things. The further you move from travelling circuses, the less clear is the balance between ethics and welfare.

A lot of those ethical arguments are based on public opinion and surveys about circuses that have been done over a number of years. What about public opinion on other forms of performance in which wild animals are used? What is the basis for that?

I am sorry—what do you mean?

What is public opinion on other forms of performance that use wild animals?

The YouGov poll that I quoted talked about circuses, not other forms of performance. I am not conscious of there having been any particularly major opinion surveys on other uses of wild animals. You would have to give me some examples. Are you talking about things such as falconry displays?

Cabinet secretary, you have indicated the Government’s intention to legislate on a wide range of other forms of animal performance when the time is right. However, the focus of the bill is wild animals in circuses as loosely defined in common law—as we understand it, a round tent with or without acrobats or whatever. I am trying to understand why you are taking that piecemeal approach rather than the broader approach that is being taken in Wales, which is looking at other forms of animal performance. I understand that the basis for your focusing on circuses is the fact that there is overwhelming public concern about them. What are the public concerns about other forms of animal performance, whether raptor shows, reindeer displays or anything else? Why focus on this form?

To be honest, I am not conscious that there is concern about other forms of animal performance. I am not aware of any equivalent to the opinion polling exercise—[Interruption.] My officials have just reminded me that there is no opinion survey work along the same lines. Clear questions were asked about circuses but not about anything else. The letters that I referred to earlier were about circuses.

We want to think about encompassing some of the other welfare issues in secondary legislation under the Animal Health and Welfare (Scotland) Act 2006. That would deal with some zoo licensing issues and bring the area up to speed. Those issues are being considered for a statutory instrument under the 2006 act, which brings us back to the difference between welfare and ethical grounds for legislation.

Public opinion on the use of wild animals in circuses is clear, but we do not see obvious public concern about some of the other issues that might be looked at. I am not aware of any concerns about some of the other sorts of display that there might be.

Would it not have been easier to ask the public their views on a range of ways in which wild animals are used in performance? You would then have had an indication of whether circuses or something else was the top ethical consideration.

I do not think that the YouGov poll was ours. We held a consultation on circuses, so all the information that we have is directed towards circuses. The YouGov poll was interesting because it asked about a range of other animal welfare issues and the specific question about wild animals in circuses was within that area. We have not gone out and surveyed opinion.

When it comes to the statutory instrument, further work will be done to see what people’s views and concerns are on some of those ancillary issues, but keeping in mind that it is a statutory instrument in the context of welfare law rather than ethics.

I am sure that we could have asked the question, but the further you go out there, the more confusion there is between welfare and ethics. We think that the issue of the use of wild animals in travelling circuses is an easier one to deal with simply through ethics.

If YouGov had asked a different question, that might have given a different basis for legislation—

But it did not—it asked a question about wild animals in circuses.

To get a feel for this, what sort of timeline will you be working to, roughly, to bring forward the secondary legislation?

I have absolutely no idea, because we have no idea what the impact of Brexit will be on our legislation. I cannot give you anything on that. All I can say is that we will look to think about doing that, but I cannot tell you when it will become possible to do it.

I want to explore the issue of the definition of “wild animal”. Are you content that, as the legislation is drafted, it captures all the categories that you want to capture? I am thinking particularly of the argument that has been advanced that a third or fourth-generation circus animal might not display behaviours that they ought to or might. Are you content that you have this drawn tightly enough?

10:30  

It is drawn as tightly as one possibly can draw it. There is, again, a fairly clear understanding that no matter how many generations of lions you have, a lion is not a domesticated animal. You might be able to tame an individual lion, but I am not sure how much anyone would implicitly trust that taming process. I have seen some remarkable footage that suggests that you might be able to in some cases, but I do not think anyone is any doubt that lions, tigers, leopards or whatever are actually wild animals.

All animals, whether wild or domesticated, are capable of baring their ancestral teeth—sometimes literally—but we are aware of the difference between domesticated and wild. We know a domesticated animal when we see and interact with it, as opposed to straightforward wild animals.

Is there perhaps a need for guidance to make clear what is not covered by this proposed legislation? I am thinking of, for example, birds of prey, camel racing and llamas, all of which have been raised with us.

The minute you list what is not covered by definition, you open the door with regard to what is not on that list—that is the problem with defining things. Again, you would expect the courts to apply a common understanding in such circumstances; after all, that is what the courts do every day on all bits of legislation that are passed. If you start listing animals that are definitely excluded and—oops—you miss one, you build in a loophole. That is the problem with definition.

Good morning, cabinet secretary and officials. Can you say something about the discretionary nature of the obligation on local authorities to enforce the bill and whether a more statutory arrangement would make it more robust? Local government officials also highlighted to us a lack of provision enabling local authorities to prevent a circus from operating while they investigate and report matters to the procurator fiscal or obtain records from the operator. They were concerned that, by the time that a case had been assessed on whether it should go to court, the circus might well have moved on and possibly have gone abroad. Do you have any comments on those issues?

First of all, Andrew Voas has just reminded me that as part of this we will be producing guidance to local authorities, so they will not be entirely left adrift. We have also been talking to COSLA about all of this. The bill is pretty much based on the model in the Animal Health and Welfare (Scotland) Act 2006 for creating an offence and giving powers of enforcement; in that sense, it is no different to what is already in existence. Basically, we do not want to overburden local authorities. We expect them to be able to ascertain whether a wild animal was being used, and local authority inspectors would then have powers under the bill that they could use.

As I have indicated, the bill mirrors the powers in the 2006 act. It was felt that the duty of enforcement with regard to wild animals in circuses should not be greater than the general welfare requirements under that act, and we are therefore taking the two pieces of legislation as commensurate instead of one gazumping the other. The bill also allows Scottish ministers some flexibility to appoint inspectors, so it will not be up to local authorities alone to do that. There is a power in the bill for ministers to appoint an alternative inspector if we think that certain local authorities are not enforcing this legislation.

As for reporting to the procurator fiscal or obtaining records, we believe that the current enforcement powers are proportionate and will provide a clear and effective deterrent. It seems from your evidence that, as a result of this proposed legislation, none of the big licensed circuses in the UK or the bigger European circuses are ever likely to tour with wild animals in Scotland, so we believe that the current powers are sufficient for those purposes.

I am sorry—does that cover everything?

The local government officers also highlighted to us that because of the circuses’ travelling nature, it might be appropriate to consider setting out in secondary legislation or guidance the power to prevent a circus from operating while an investigation was taking place.

I think that our view is that that would tip the balance towards a much more onerous set of circumstances. Do you want to come in here, Angela?

There is a policy aspect and a legal aspect to take into account. Obviously, there are different types of enforcement regimes you can put in place, but what we have opted for is a significant offence provision without some sort of fixed penalty or compliance notice letter regime, because what we need here is a significant deterrent. At the moment, there are no travelling circuses in Scotland that have wild animals, and we need to ensure that we do not have just some system of easily administrated letters that go out to circuses. After all, this offence is not going to happen regularly, and in order to deter people from coming, we have opted to take the significant penalty and prosecution for criminal offence route instead of having a mere compliance notice asking the circus to desist, or a fixed penalty notice, which could lead to issues of decriminalisation. We want the deterrent value of the big-ticket offence.

Do you have a comment on the concern expressed by David Kerr from Argyll and Bute that giving the legislation an “ethical basis” could make it easier for a defendant to defend themselves?

Every case will be argued on its individual merits. It is a fairly clear and straightforward matter for a court to consider: if it knows that the legislation is designed on ethical grounds, that is how it will look at it. We do not believe that that will make it any more difficult to enforce; indeed, one might possibly view the welfare offence as being more difficult to prove, as that would rely on expert evidence on the suffering of individual animals instead of the broader ethical arguments that will be made in court.

I was also going to ask you about the lack of clarity in the definition of “circus” with regard to enforcement, but I think that you covered that point earlier.

As members have no more questions, I thank the cabinet secretary and her officials for their time and their evidence. Obviously, the committee will come to a view on the bill’s strengths and weaknesses in due course.

I suspend the meeting for five minutes to allow for a changeover in officials and a comfort break.

10:38 Meeting suspended.  

10:44 On resuming—