Official Report 267KB pdf
I welcome colleagues, members of the press and members of the public to the meeting. I remind everyone to put their mobile phones and BlackBerries to silent.
I would like to direct a question or two about extended powers of slaughter to Libby Anderson. As we know, the bill gives the minister significant subordinate legislation powers, which will enable him to act as he thinks fit in certain circumstances. Presumably, when he does so, he will have taken veterinary advice. Is that not sufficient for you, given that he may have to move very quickly?
The concern is that the bill is drafted in very broad terms and that it does not allow for appeal. You are right to say that it makes provision for veterinary advice to be taken, but, as you say, the minister will have to move very fast. I want to highlight the concern that, according to the explanatory notes, animals that are 180km away from the seat of disease could, theoretically, be slaughtered. The committee has heard from farmers that that power is very wide. People who are interested in animal welfare and the management of mass slaughter would also be concerned about it.
Are you saying that you would like more specific reference to the powers of the vets in such circumstances to be written into the bill?
There should be more detail on the nature of the veterinary advice and on the considerations that would be taken into account, such as biosecurity measures. During the 2001 foot-and-mouth disease epidemic, there were half a dozen challenges to the minister's powers. Those challenges were not successful, even though it has now been accepted that the contiguous cull went beyond the provisions of the Animal Health Act 1981. We do not want that to happen again. One challenge concerned animals that had been brought into the house—five pet sheep. Whether it was proportionate for the minister to order the slaughter of those animals is another question.
Would Siobhan Mullan like to comment on the issue?
In general, I believe that it is important that veterinary advice should be taken. I am less concerned than Libby Anderson is about the extent of the bill's provisions. On this issue, I am happy with the bill as it stands.
My question, which is for Libby Anderson, follows on from the comments of my colleague Ted Brocklebank. In paragraph 2.1 of your submission, you say:
There is no form of redress that courts could order, other than financial compensation. That is why it is necessary for us to consider how proportionate the measures are. When I made the comment about economic considerations and compassion, I was not in any sense making a personal remark about the Executive or the minister. I was referring to a policy that, as we know, is dictated furth of Scotland. In the context of foot-and-mouth disease, I was referring to trade considerations. Peter Stevenson provided the committee with a much better explanation of those than I could. The European Union requirement for disease-free status is not a terribly old policy and it should develop. Trade and disease-free status should not be set in stone.
I am interested in domestic animals such as cats, dogs and the five sheep that you mentioned. If pedigree domestic animals are slaughtered for any reason, monetary compensation is available, but that does not compensate for the emotional impact of such a move. Indeed, in paragraph 2.2 of your submission, you say that the powers in the bill
Definitely. In one very old case, a judge who was able to award compensation of only 5 shillings for a cat that had been killed by someone said that the fact that he could award compensation only to the cat's monetary value was a matter of regret, because such a ruling could not reflect the owner's attachment to the animal. We need to bear such matters in mind without unduly constraining the minister. After all, I acknowledge the seriousness of disease outbreaks.
As far as disease control, vaccination and powers of slaughter are concerned, I feel that we need a robust process, and forcing someone to go to court in the middle of a disease outbreak to appeal a ministerial decision is a bit of a nuclear option. Will you flesh out in some more detail what you think an ideal process would consist of? Can we put something into legislation that would help to define the process? At the moment, we have contingency planning for disease outbreaks. Could something in that process other than automatic recourse to the courts provide a check and balance on ministerial powers? What would be the ideal process in that respect?
Contingency planning and biosecurity are vital. Perhaps in any disease outbreak the process should run its course and we should pre-empt the need for challenges. I believe that that is what you are getting at. I have not really turned my mind to the specifics of the matter, but perhaps it should be discussed further by the Parliament or with the Executive. Perhaps the matter could be dealt with in the current animal health and welfare strategy, which is aimed at disease control and can incorporate all sorts of aspects.
We have heard strong evidence on the need for the bill to refer to veterinary advice, perhaps in conjunction with ministerial powers. How could we frame such a provision? Where would it come in? Clearly, it would not come in right in the middle of a disease outbreak, but it would have to come in at some point. How can we frame that meaningfully in the bill?
You are suggesting that there should be a protocol on veterinary advice to ensure that no delays occur. I should point out that the contingency plan already exists; perhaps we need to plan out scenarios to ensure that everyone understands what they must do in any given situation. Indeed, we must ensure that people who keep animals understand their responsibilities and what is likely to happen.
So there should be a protocol on veterinary advice with ministers.
Yes.
Do you have any thoughts on this matter, Siobhan?
Veterinary advice is crucial, particularly before an outbreak. After all, when it happens, everything moves very quickly.
Thank you. We have pretty much covered everything on part 1 on animal health, so I would like to proceed to part 2, which is about animal welfare.
I am keen to look at the definitions of animals and protected animals, which are in section 14 and section 15. I have asked previous witnesses about the alteration of the immediate environment of wild animals such as deer. We must have a definition that covers a particular set of animals. Do either of you have any observations on the evidence that we have heard so far?
Are you talking about protected animals or the definition of protected animals?
The definition.
I would like to see all legislation being of the same standard. For example, the Animals (Scientific Procedures) Act 1986 includes a species of octopus that would not be covered by the bill, but in order to be consistent and whatever the purpose of the legislation, animals are either sentient or they are not. It would be helpful if consistent definitions could be achieved. It would be useful to include additional species rather than, for example, removing the octopus from ASPA. Consideration could also be given to including animals before they are born or hatched.
Other people may want to talk specifically about that, and we will ask the minister about it. However, I want to concentrate on the extent of protection for wild deer, especially where alteration of the environment is concerned.
There is no doubt that people have a proportionate responsibility for the animals with which they interact, including wild animals. It is one thing if that interaction is very brief, but feeding wild deer can have potentially dramatic consequences on their welfare and behaviour. It would be right if the bill were to include the responsibility for any effect that people might have on those potentially wild animals.
That, of course, would be difficult to define. Should the words "potentially wild" or something similar be included? We have to find words that will capture the definition. I do not know whether you can help us.
The definition is about control, rather than the wild animal. The deer or birds that people feed may become temporarily habituated, though not dependent, on what they are given. They may get into the habit of coming for food, but that would not mean that they were under control. I am more aware than Siobhan Mullan that that aspect of the bill has concerned you. I have never seen the act of providing food as one that brought animals under control, because ultimately the animals are still free living and can survive by other means.
I take your point, but I want to press an issue that vets and others have raised. Fencing by roadsides and on estates affects the way in which we consider deer as wild animals. Increasingly, people want to keep deer off the roads, and that might be considered as putting more controls on the animals. However, altering the environment of the area in which the animals move would—as you suggest in your evidence—call into question whether the animals fit the definitions in the bill and whether they come under the spirit of the bill.
The degree of control that is exerted over the animals would be important; we would have to consider whether they still had enough freedom to move around. "Control" could be interpreted as meaning something much tighter than the situation that you describe.
If you consider the needs of an animal that you accept is under control, and if you consider actions that alter the animal's ability to satisfy those needs by itself, that might lead towards a definition. If you take away an animal's ability to look after itself, you should have a responsibility to provide whatever it is that you have removed from it.
Are the provisions in the bill clear enough to allow land managers and non-governmental organisations to understand the limits of the bill? There will always be differences of interpretation, but is the bill as drafted robust enough to withstand legal challenges that may arise if people think it is fuzzy? We have to consider that when considering exactly where to draw the lines.
The definition of protected animals is not the only important issue—the introductory sections of the bill have to be read and the bill as a whole has to be considered, along with people's responsibilities. Does having control over an animal mean being in charge of it and being responsible for it? Would having that responsibility make a person responsible for any offence? Each section of the bill sets out different criteria, but the bill has to be considered as a whole. Section 15, if it is read on its own, might be slightly misleading.
If the bill as drafted is agreed to, would clear guidance be required to pull together all the sections to give people a relatively straightforward explanation?
Yes. If there is a suggestion that an offence has been committed, questions will arise over whether someone was responsible and whether the animal was under their control at the time. To me, that seems to include some checks and balances.
I agree; there was always going to be a grey area in that respect. The suggestion of combining sections 15 and 22 is reasonable. The bill should make provision for the things that the animal cannot sort out for itself.
Okay. If no one else wants to come in on that topic—
If I may, convener, I have a point to make on the definition. Previous witnesses have commented on the layout of section 15. I agree with Mike Radford's suggestion that the word "or" should be inserted after section 15(a), after
I agree.
Okay. Thank you.
I said quite a lot on that issue in my submission. It was suggested that one of the things that I should do in preparation for this session would be to look at other animal welfare legislation. Siobhan Mullan referred earlier to the New Zealand Animal Welfare Act 1999. That is a good model, as it is similar in structure to the bill.
I have no comment on the question of resources. I understand why the Executive proposes to look only at large sanctuaries. Obviously, in that way, the largest proportion of animals that live in sanctuaries will be covered. However, I know from experience that often, when people start ad hoc little places in their back gardens—even when they do so out of genuine kindness and concern—they are not necessarily acting in the animals' best interests. I am keen for such sanctuaries to be licensed or registered in some way. For example, they could be made to keep records so that we have some idea of the number of animals that go through them. We need an ability to have an input into the running of such places to improve standards and encourage education. I am keen for the licensing provision not to be limited to larger sanctuaries.
A few witnesses have raised that concern. The issue is how we require people to make the local authority aware that they have animals under their control. We must consider what the trigger point or threshold would be. Libby Anderson says that regular good inspections are needed, but the issue is the point at which somebody's outfit becomes subject to inspection and how the local authority will know when to inspect it. Should that happen through tip-offs from members of the public or should a more robust process be put in place under which people are required to notify the local authority when they have X number of animals? We need to work out who does what and who should have the responsibility.
A registration requirement would require people to inform the authorities that they had a certain number of animals, but it would not allow inspections in the way that a licensing system would, nor would it have sanctions attached to it. When complaints come through tip-offs by members of the public, that means that there is a problem and that animal welfare has been breached. The aim of the bill is to prevent such problems.
I am trying to tease out how you would change the bill to avoid that happening.
I would be fairly satisfied with an assurance that there would be a full licensing scheme with a shorter licensing period. Even with provision for more frequent inspections, there is a risk that extended licences will lead to a lesser inspection regime. If we knew that a comprehensive licensing and registration scheme would be introduced reasonably soon, we would be happy with the enabling powers. If we were not confident about that, we could consider the Austrian model, in which minimum standards for sanctuaries are set down in an act, but the finer detail is left to regulations.
The issue comes down to confidence in what is likely to happen. There is no problem with requiring people to say that they have a certain number of animals, whatever the minimum number is.
We will test that issue with the minister later to see how we establish that confidence.
I have a couple of questions for Libby Anderson and one for Siobhan Mullan. Libby Anderson's submission mentions mutilation and we have had a lot of evidence about tail docking. Is tail docking ever necessary—for example, to prevent future suffering for working dogs?
The problem with exempting working dogs across the board is that such an exemption would be too general. A few weeks ago, the committee heard excellent evidence from Chris Laurence that docking newborn puppies' tails causes suffering. Starting from that standpoint, the problem with exempting working dogs is that thousands of puppies would definitely suffer pain. We have to balance that with the possibility that undocked adult working dogs might suffer injuries and would definitely suffer pain as a result. That would be absolutely regrettable and I would not like to think that my recommendations might lead to such injuries, but we have to weigh up—using a cost-benefit equation—which would be the more serious and systemic welfare breach. For that reason, my view is that no exemptions should be made. If we were minded to make exemptions, they should be for named breeders, specific litters and known purchasers. Perhaps that would get round the problem of tail injury.
That might also be a bit complicated.
It might.
Surely the legislation should be clear.
The bill will ban mutilations but provide for exemptions, which will be made be through regulations.
The section that will ban mutilation seems to ban castration, but regulations will deal with that. Is that correct? Siobhan Mullan is nodding.
That is my interpretation. Any mutilation will be banned.
The explanatory notes refer to
Castration will be banned unless it is specifically exempted.
Will cats be exempted?
I presume so. You will have to ask the minister about that.
It is not our job to presume, but to bring out the evidence.
The bill will impose an absolute ban.
I think that the Veterinary Surgeons Act 1966 contains a list of exempted procedures—will Siobhan Mullan confirm that?
Castration is still considered to be mutilation.
Castration is still considered to be mutilation, but it is permitted. We are going into detail that we are not sure about.
Perhaps we will discuss the issue with the minister.
You will have to ask the minister; I do not think that what Libby Anderson said is necessarily true.
A list could be made that covered accepted procedures, which would obviously include neutering.
In her submission, Libby Anderson says of section 22, on ensuring the welfare of animals, that
Could I quickly make a correction to my paper, although it does not relate to that question? In paragraph 6.5, I said:
Is the wording superfluous or contradictory? Does it do any harm?
The more defences that are provided under the bill, the more people will argue that they have not treated their animals inappropriately.
Is that why you say that the provision is "unduly weak"?
Yes. It was felt that too many defences were written into the New Zealand act. Perhaps just one qualification is sufficient.
Convener, may I move on to the question for Siobhan Mullan about unnecessary suffering?
Does Maureen Macmillan want to come in on this point?
Yes. I will come in on mutilations, if Elaine Smith does not mind. I will pick up on a point about working dogs that was given in evidence before Christmas. The problem is how to ensure that a puppy that is to have its tail docked is genuinely a working dog and not just a dog of the same breed. It was suggested that the best way to do that would be for the matter to be in the hands of the local vet. The local vet will know to whom working dogs belong and who are breeders who might sell dogs as pets. Would that be a strong enough sanction against unnecessary docking?
If the committee is minded to make any exemptions, it would be better to have a register of breeders.
Does Siobhan Mullen agree?
My only concern about that suggestion has arisen already: the rules might be bent because some vets are clearly in favour of docking. For example, one way of getting round the rules might be for one puppy from a litter to become a working dog. On the whole, vets have a good idea of whether their clients' dogs are working dogs. One advantage of the suggested approach is that if it was up to the vet, at least the animals would be seen by a vet, which may not otherwise always necessarily be the case.
I should probably have asked the vets this question. It seems to me that if there is to be a tightly drawn exemption it will be necessary to identify the eventual owner of the dog. Identification of the owner probably does not happen until the dog is ready to leave its mother, but it might be desirable to dock its tail when the dog is less than a week old, if one accepts that the dog does not feel the same pain when it is less than a week old. If we accept that pain is a factor at a very young age, might the exemption cover docking under anaesthetic when the dog is slightly older and when the owner is known? How would that change the balance of pros and cons?
My opinion is that docking its tail is painful for a puppy. It is potentially more painful for a puppy than for an adult dog; the puppy's neurological system does not include pain-damping effects because that function has not yet developed. The question is whether that harm is greater than the harm that is caused by bringing an animal in and giving it an anaesthetic, which is potentially risky because at that point there is certainly much more to do. Later docking would perhaps be more harmful but, having said that, that approach might be a good way in which to reduce the numbers that are eventually docked.
At what age, by and large, is a puppy's owner known?
That is usually known when the puppy is aged eight to 12 weeks.
So it is still not an adult dog.
No.
Has it passed the stage at which the neurological effect—
A general anaesthetic would be required.
For a very young animal, that could be—
Yes. Such factors must be weighed up.
Do you have that evidence? Contrary evidence has been submitted to the committee after a previous meeting when I asked about the issue. What is the comparison with countries in which tail docking has been banned? What has been the impact, particularly on the working dog population?
I can certainly find that evidence for you.
That would be helpful.
The specific issue on working dogs is really about feathered dogs—it is not about a pointer wagging its tail against a coffee table. That can be sorted out. Why cannot we just clip feathered dogs? That is a simple and straightforward procedure that leaves the tail intact for the dog to use as a signal.
I agree. I also agree with Siobhan Mullan's point about the integrity of the animal. My only concern is that when a dog is injured in the field, it will not be too worried at that point about its dogginess. However, it is an important point of principle.
We heard some concerns that, if Scotland and England and Wales end up with different legislation on mutilation, people will just drive over the border and have their dogs' tails docked there. What is the evidence on boundary issues from Europe? Inevitably, there is different legislation in different countries. Will you expand on what might happen if we have different legislation to England and Wales?
Do you mean specifically with regard to tail docking?
I mean with regard to mutilations.
I am not sure, I am afraid. I would have to look that up.
More and more European countries are banning the practice. Originally, it was banned only in the Scandinavian countries, but in the past 20 years such bans have spread. However, given people's keenness to have docked dogs, I have no doubt that people will drive over the border. There is an issue about enforcement, but if MSPs and people in Scotland want a ban, it is important to include that in the bill. The cross-border issue should not be a reason to omit a ban.
I have a question for Siobhan Mullan on unnecessary suffering. In your submission, you discuss "reasonableness" and state that it is
It might be helpful to start with an example from the UK. Until relatively recently, all piglets were castrated, but now, as a result not of legislation but of one of the farm assurance schemes, almost no piglets are castrated. People want to be part of the scheme, and castration is not allowed under it. Castration was a common practice but, almost overnight, it was shown that it was not necessary, so there has been a big change.
Do you mean that the bill may outlaw some of those practices, but that people will expect to continue to use them, despite the fact that they will be breaking the law?
I suppose that something being common practice is an excuse in a way, because it is seen as reasonable to do what everybody else does. The intention may be to improve welfare, but basically there will be no improvement if welfare is bad across the board. Bad welfare will simply be standard practice.
What should be done?
Under the New Zealand act, the welfare of animals is ensured because they must be treated in accordance with good practice and in the light of scientific knowledge. Something about scientific knowledge could be included in the bill so that people cannot simply say, "Well, we've always done this." Piglet mortality rates in systems and the fact that certain practices are unnecessary could be illustrated. That would be helpful.
If people stopped intensively rearing pigs, tail docking might not be required. I suppose that that relates to the point that Libby Anderson made.
Yes—assuming that there is scientific knowledge to prove that. There is increasing knowledge about farrowing crates. If everything is weighed up—not only crushed piglets, but other forms of piglet mortality and so on—and there are smaller litters so that there are fewer weak piglets, it will be found that mortality rates and the number of live pigs that can be sold at the end of the day under farrowing-crate and free-farrowing systems will be pretty similar.
Are you suggesting that the bill should be changed to include such a provision?
It would be useful to have something in the bill about practices being in accordance with scientific knowledge.
I want to ask two questions. First, an earlier witness suggested that inspectors should be allowed recourse to something like a care order that would give people a chance to amend their behaviour to look after their animals properly. Do you want to comment on that suggestion?
The value of care notices is that they allow rapid intervention. The system that we would have would be analogous to that under the welfare of farmed animals regulations, in which there are care notices. Such a system would allow for rapid intervention to bring welfare up to a good standard.
I support what has been said. The system that has been described has worked well so far; companion animals and farm animals would be brought to the same level. We should try to prevent issues being dealt with by the courts and to improve matters before that stage is reached.
Who should be inspectors, how should they be trained and should there be a qualification standard or different qualification standards?
I do not have too much to say about that. Whether inspectors come from a charity, a local authority or whether they are vets does not matter too much, but a minimum level of competence will be needed, for which there should obviously be an assessment system. Perhaps there should be a register. Across the board, some local authority inspectors are very good, but others are not so knowledgeable. Some use the vets in their area to do the job. It is not necessary for an inspector to be a specific type of person or to have a specific competency level. Different competency levels would be needed for the different matters that inspectors would have to deal with.
It would be helpful to have a framework of competencies. The inspectors that are envisaged under the bill are the state veterinary service, the local authorities and the Scottish Society for the Prevention of Cruelty to Animals. Individual inspectors would be authorised, but it is not clear to me how the work will be divided and I am not sure what the difference is between the investigations and inspections that the bill envisages.
Okay. This has been very useful; it was useful for members to ask a range of overview questions as well as to dive into the detail. I thank you very much for attending and for your advance evidence.
Meeting suspended.
On resuming—
I welcome Ross Finnie, the Minister for Environment and Rural Development, and his officials. You will be aware that we have been interrogating the bill for some time now. I hope that you have been kept up to speed with that. We have quite a few questions for you. However, before we get to our questions, do you want to make a brief opening statement and introduce your officials?
Thank you, convener. Because we are dealing with health and welfare, we are well represented across the piece. With me are Charles Milne, who is the chief veterinary officer for Scotland; Claire McGill and John Paterson, who are from the solicitors division; and Neil Ritchie and Ian Strachan, who are from the animal health and welfare strategy branch.
Thank you. We were particularly keen to hear the minister's commitment to lodge an amendment to the bill to provide for care or improvement notices. I think that all members will welcome such a move. The issue has certainly been raised by a few witnesses and was discussed again this morning.
As the minister mentioned, the powers of slaughter have been a cause of some of concern. One theme in the evidence that we have received has been the need to balance the emergency powers that will be given to ministers with the need to hold ministers to account on their use of those wide-ranging powers. I am concerned about the nature of the advice that the minister would receive. I accept that, as he said in his opening remarks, he might need to take advice from person X, Y or Z, but there is some ambiguity about the persons from whom he would need to take advice in such circumstances. One source of concern is that people are not sure about the extent to which the minister would be required to take advice from certain bodies and organisations and the extent to which such advice might be published and be subject to challenge.
Richard Lochhead raises several issues. I fully appreciate that how we control disease outbreaks is extraordinarily important. The way in which ministers exercise the broad powers that are proposed in the bill is a serious matter. Fundamentally, ministers understand that, in introducing legislation that seeks to provide them with such wide powers, they must be clear about what responsibilities they are taking on. However, we should be clear about the fact that the powers are for dealing principally with a range of exotic diseases, which are not confined to the most recent example of foot-and-mouth. Scotland could be susceptible to a range of exotic diseases.
I accept much of what the minister says. I guess that should such awful circumstances ever arise, transparency would be of the utmost importance in ensuring that Parliament understood what advice was sought and was involved in that process and in assessing how the advice was responded to. The committee will no doubt deal with those issues in its report.
There is a growing body of evidence on the issue of such animals' ability to feel pain. However, I respectfully suggest that that evidence is, at best, inconclusive. I may ask Charles Milne to elaborate on the issue in a moment. Because the evidence is inconclusive, we need to consider the purpose of the legislation. The purpose of the legislation is to create a criminal offence, the test for which will be proof beyond reasonable doubt. I do not think that we can legislate to create a criminal offence when there is fundamental doubt about whether the species to which the offence relates experience pain in the way that has been described. It is not responsible to extend the scope of the bill to include such species when we have already built in the possibility that we would be unable to proceed with a criminal prosecution. That would make the bill a meaningless piece of legislation. I would like the chief veterinary officer to give his opinion on the issue that Richard Lochhead has raised.
The question revolves around whether such animals consciously experience pain. We accept that they have nociceptors and that they can sense more than stimuli. However, the question whether they have the ability to suffer pain, which is a conscious process, is altogether different. It is right to say that the scientific jury is still out on that question.
I understand that scientific judgment can change over time and evidence can develop. There is already debate about the issue. The evidence that we have received indicates that some would argue that the case has been made, although you say that there is disagreement. I understand that, under the bill, should you or the minister take a different view, there is provision to use secondary legislation to introduce measures that would change the position. The bill allows for a future change of view.
That is absolutely correct. It is nonsense to say that almost anything that we do politically is set in stone. That is a rather foolish position to take. Richard Lochhead asked me a direct question about the bill as it stands. My position is that it is impossible for me or anyone else to prosecute a case when the chief vet, if led in evidence, would suggest that, although there are issues to be resolved, those issues are not yet resolved. However, you are right to say that, if the position developed and a different view and body of evidence emerged, we would not have to have recourse to primary legislation to make a change, because the provisions will be in secondary legislation.
What on-going investigation is there in this field? Do you know of any on-going experimentation?
Work is being done, although I could not quote you the individual pieces of work.
If that work were to develop, two issues would arise. Particularly in the case of lobsters, the issue of whether the issue was a welfare one per se or came within the ambit of slaughter regulations would arise. At the moment, such species are excluded from slaughter regulations simply because they do not meet the tests to which the chief vet has alluded. We should not confuse slaughter to prevent the occurrence of disease and the slaughter of animals that are being bred or used for human consumption. Essentially, the bill does not address slaughter immediately prior to the point of human consumption.
Perhaps we could discuss mutilations, which you did not mention in your opening remarks. We have probably received more evidence on that than on any other part of the bill. There seems to be some confusion about whether standard farming practices, such as the tail docking and castration of lambs, will be allowed under section 18. Questions have been raised about whether such practices should be allowed or whether the standard practices should be changed. For example, the docking of pigs' tails might not be necessary if farrowing crates were made illegal. There is a question as to whether the mutilations are of benefit to farmed animals or whether there are other ways of addressing the problems that those mutilations are supposed to solve.
I am sorry that I did not raise the issue earlier. However, perhaps it is better that it was raised specifically in a question.
Are you considering registration of breeders who raise dogs for work?
We have not considered registering breeders of working dogs. We considered ensuring that the vet who conducted the docking operation had seen evidence and was satisfied that the pups from litters had a very good chance of being working dogs. Evidence that we thought of might include the fact that a breeder was a member of a gun club or held a shotgun licence and could show that he went out sport shooting.
I will press the minister on farmed animals. Is there a case for changing some farming practice so that mutilation of pigs, for example, is no longer necessary?
As I said in my initial reply, I accept that some people take that view, but a balance is involved. Charles Milne will answer the specific point.
Maureen Macmillan mentioned docking of pigs' tails. Existing legislation requires pig owners not to dock, unless not docking would create a problem. Of course, pigs explore with their mouths. On farms where docking does not occur, significant injury to tails and significant carcase damage occasionally occur, so tail docking is the lesser of two evils and it continues.
Do free-range pigs bite one another's tails or does that happen only when pigs are intensively farmed?
Free-range pigs can do that. The situation is complicated. Pigs may bite tails in systems that have excellent management and all sorts of enrichment but not bite tails in poor systems. As I said, the existing legislation says that farmers should not dock tails unless there is a problem. We must accept that considerable welfare problems are associated with pigs. In the extreme case, when tail biting progresses to the ultimate extent, cannibalism can occur. Ideally, we do not want tail docking to be undertaken. In some respects, allowing it in pigs and lambs but not in puppies is an anomaly. However, we must balance the good to the animal against the injury to it. In such circumstances, there is a strong argument that docking alleviates suffering.
Do you foresee difficulties if the law in Scotland on tail docking of dogs is different from that in the rest of the UK? Will people use facilities in England when they want tails to be docked cosmetically?
Yes, I do, which is unfortunate. Clearly, the matter can be determined on the basis of the evidence that the committee has, but as you are aware, Westminster will decide the issue on a free vote. I will not explore the conscience issue, convener; I will leave that for your deliberation.
That would be wise.
I thought that I would strike a happy note by making that suggestion.
That might be worth considering over the next few weeks, in advance of the stage 2 discussions.
I am sorry; I mean that we will address it immediately. I do not mean that I will dwell on the matter. There are a number of possibilities, but I am reluctant to float them and have them leap out as real possibilities because they might not be sensible for legal and drafting reasons. However, we are addressing the matter.
The issue has come up in several evidence sessions in which we have discussed the position in the UK and the comparable situation on the continent. It would help if you could give us that feedback by stage 2.
There is evidence on that.
I am sure that sporting interests are encouraged to hear that the bill is in no way intended as a covert attack on those in Scotland who are interested in shooting wild game, stalking deer and shooting pheasants. You defined a wild animal as an animal that was wild when it was killed. However, the difficulty is that pheasants and deer are sometimes under the control of man—young pheasants are reared in cages and deer may be fed to see them through a bad winter. Will not there be difficulties, particularly in respect of the section on abandonment, in establishing when a wild animal is under the control of humans and when it is in the wild and free of that control?
You would expect me to say no, which is what I will do, but I will also elaborate. This is not about pandering to shooting interests or to anybody else. It is about taking a pragmatic view and having a statute that properly addresses the position of animals that are controlled by the humans who have a clear responsibility for them, so that, if necessary, we can direct a criminal charge on a burden of proof and secure a prosecution. Pheasants are under human control when they are being reared, and they are released on the basis that they are in the physical condition to look after themselves. Regardless of the bill, a body of case law suggests that in determining that condition there is no conflict with your point about control. We are satisfied that the bill does not cut across that.
We have heard evidence that even for a period after animals are released into the wild, they often require a degree of support. To that extent, the animals are still under the control of the people who have reared them.
I am reluctant to get into that. It is a bit like asking when is a door not a door—when does released not mean released? It is an interesting question. Perhaps John Paterson would like to assist with the definition.
That would be useful, because the issue has come up week after week. It is about what happens in the winter a year after the animals have been released.
With respect, that is different. If one is actually controlling them, that is slightly different.
That is what we want to tease out. It has not been treated as totally separate in previous evidence sessions.
Our view is that, if one puts out food for the birds, they are clearly not under the control of man and one is not responsible for them. The same applies to deer. However, a question arises if someone releases pheasants that they reared. Is that person releasing the pheasants or abandoning them? It appears to us that the question is answered by the fact that the young birds are not dependent on the person who is releasing them at the point at which they are released.
Many people are particularly concerned about deer. I heard what the minister said, but we took evidence earlier about altering the immediate environment of wild deer—for example, by fencing them in to prevent them from crossing a road. Another issue is whether feeding deer in the winter makes them dependent. Are you clear that the people who will have to comply with the legislation will know exactly where they stand?
It depends on what one wishes to do. As John Paterson said, if one wishes as a matter of humanity to provide additional support and protection for the animals but they are still capable of looking after themselves, what is the risk? Someone who did that would not be liable to the accusation that they had committed a criminal offence.
So the important point is the degree of protection.
No.
That is why I wondered—
I understand that there are practices that confuse the issue, but on the point about how individual citizens will know that they are liable, our evidence makes it clear that a wild animal is protected only when it is being reared. After it has been through the rearing process and has been released, it is not protected.
There is one other anomaly that you might like to address. I understand that farmed fish are dealt with under the bill, but what about managed fish? That includes, for example, lochs that are stocked with trout. To all intents and purposes, the fish are wild until somebody catches them. Are they covered by the bill?
If someone is deemed to have bred the fish, yes, but they would not be covered at the point at which they are released into the pond, when one assumes that they are capable of looking after themselves.
I will expand on that a little. It would depend on the individual circumstances such as the number of fish in the pond and the size of the pond. You heard evidence earlier that the pond could be several acres. If someone released a few fish into that pond for sport fishing and they were able to fend for themselves, they would be, in effect, wild animals and would not fall within the scope of the bill. If, on the other hand, the pond was really not much more than a big quarry, and a large number of fish were released into it, which were not able to sustain themselves and required supplementary feeding, that could be viewed as a type of fish farming—of a "catch your own" rather than "pick your own" type. Such fish would be protected animals, because they would be under the control of man. It is not possible to say whether fish in a stocked pond are covered; that will depend on the circumstances.
Presumably best practice will be set out. What you have explained sounds like common sense, but people will have to make decisions based on individual circumstances. Translating the detail of the bill into best practice advice will be critical in letting people know where they stand.
Yes; there will be guidance.
I want to return to the issue of ministerial slaughter powers. I accept totally what you said about the need to move swiftly in an epidemic, such as foot-and-mouth, but you also said that there are checks and balances in the system based on judicial review of whether your or your successors' decisions are proportionate and reasonable and respect human rights.
I do not think that we could ever prescribe something that would deny any citizen the right to seek a judicial review. Irrespective of what we might do to eliminate the possibility of that, we will never eliminate it; people have the right of recourse to the court.
I understand the difficulty that you have highlighted about prescribing exactly who you would want to bring in, but what is important is that people know that there is a process for seeking stakeholders' advice, which you and your successors will stick to. At the moment, there is nothing that specifies that process, or even the need for that process, in the bill. That is why witnesses have described it as an act of faith. You are saying that it is inconceivable that you or any of your successors would not take such advice, but people out there are saying that it is an act of faith. Perhaps a process needs to be identified, rather than mentioning individual stakeholders in the bill.
I understand what you are saying about people's concerns about specific aspects of the bill, but I am trying to get my mind around how a minister could come to Parliament, as I did, to indicate that he or she was about to embark on a slaughter policy without specifying quite how that would be done. There are contingency plans that deal with how we would address such issues, and they mention the people who would be consulted. That is in the plan and those are the people that we would have to go to. I respectfully invite the committee to have a look at the contingency plan—a document in the public domain—which is the only document of which I am aware that describes how exotic diseases would be dealt with and the processes that would be used.
There is clearly an issue to do with the statutory requirements and the legal expectations of the process that you or subsequent ministers would follow. My difficulty with the bill is that I do not see a requirement in it for any process to be followed.
There are difficulties in having a statutory process to cover a range of diseases. There is no question but that our view is that any minister who took a decision without advice in direct response to such a situation would be subject to judicial review and his chances of succeeding would be slim. That is the advice that a minister would get. You would have to be pretty wilful to disregard that. We would be in an extraordinary situation if there was a minister in any department who was getting advice and was wilfully ignoring it and saying, "I'm going to slaughter these animals and you'd just better watch me, because I'm about to issue the order," because they would have been told that there could be a judicial review.
It seems that judicial reviews are being invited as part of that process.
The difficulty for us is that some people look after one or two animals or take in animals only occasionally. We need a cut-off point if we are to be able to impose effective strictures. The figure of 50 is a rough count that was based on the criteria that we used; it is not our intention simply to include 50 sanctuaries in the scheme. I ask Ian Strachan to elaborate.
I have been interested to read the evidence that has been given to the committee on animal sanctuaries. The bill's accompanying documents state that we intend to register—not license—animal sanctuaries. The provisions will be introduced in secondary legislation, but we will need to consult fully and take evidence on the advantages and disadvantages of registration and licensing. It may well be that we ought to license larger sanctuaries and register small ones. As the minister said, we are looking for a cut-off point because we want to avoid creating a bureaucratic necessity for people who take in a couple of stray cats or an injured hedgehog. At this stage, it is not possible to say that registration or licensing will be required for people who have more than a certain number of animals, because that could depend not just on the number but on the type of animals in the sanctuary. For instance, a donkey sanctuary with half a dozen animals may need to be licensed or registered, but somebody who has a few stray cats or injured hedgehogs may not. We will need to consider those issues.
That is a bit clearer. My concern was about small animal sanctuaries that can deal with species with complex needs, and the potential for them to go down the wrong path. I am glad to hear that complexity of needs is being brought into your criteria and that the issue will not just be the size of, or the number of animals in, a sanctuary.
Another good example is seal sanctuaries: if a person takes in half a dozen seals, it is arguable that there is a better case for licensing or registration for that than for somebody who takes in half a dozen small mammals.
It is useful that that issue has been reflected on. One issue that was raised with us was about small sanctuaries which, through word of mouth or happenstance, end up becoming much bigger, but without the required expertise and back-up. By the time such sanctuaries are reported, the problem is already established. We are interested in having more background on the issue. The explanatory notes state that the
The bill will make many fundamental changes and will for its implementation be dependent on a large number of statutory instruments. We do not want to get into a bind by saying that that will all happen tomorrow. Should the bill get through Parliament, we see our absolute priority as being to produce the statutory instruments that will update and restate all the existing legislative requirements, after which we will move progressively to the new provisions. Many of the reasons why we want to use statutory instruments have arisen this morning; for example, different scientific evidence and different circumstances might arise, so to use secondary legislation is the right course of action because it can be more easily amended. However, management of all that secondary legislation will place a strain on parliamentary time. If we can introduce the scheme more quickly, we will do so, but there are problems with that.
That is a bit of advance notice for the committee.
Would it be sensible to provide that all sanctuaries be registered and thereafter to prioritise those which need to be licensed? As has been said, size is a blunt instrument. Is my suggestion feasible or practical?
As Ian Strachan said, we want to get this right. Clearly, when the relevant statutory instrument emerges, we will have to consult on it. We note the suggestion, but I am not sure whether we will proceed in that way.
I am keen for us to move on.
I have no more questions about sanctuaries, but I want to ask about a couple of issues that were raised by witnesses, the first of which is administration of poisons. Will the bill be adequate to protect horses from ragwort poisoning? The British Horse Society suggested that ragwort should be mentioned specifically in section 20.
The bill will make it an offence knowingly to give a horse feed that is contaminated with ragwort. The welfare element of the bill requires that the person who is responsible for a horse take appropriate action to prevent the horse from eating ragwort in a field where it is growing—they will be committing an offence if they allow their horse to feed there. We are placing a far greater onus on people who have horses.
Witnesses also asked about the intention behind the power to establish an animal welfare body when such bodies already exist—for example, the Farm Animal Welfare Council and the Companion Animal Welfare Council.
The Farm Animal Welfare Council is a statutory body that reports to agriculture ministers in Great Britain, but the Companion Animal Welfare Council is an advisory body that has no statutory remit. We would like ministers to be able to authorise and to fund such organisations because ministers cannot spend money unless there is a legal basis for doing so. We are linking to that the possibility of introducing regulations that would set a remit for such bodies to communicate with one another so that they can share information, which could be fed into a database. The committee heard earlier about the database of animal welfare convictions, to which the provision is related.
The bill is not reinventing the wheel, but calling different things wheels and bringing them under the same umbrella, which is a very mixed metaphor.
I understand that such definitions will form part of the licensing regulations.
Inspectors will be members of the state veterinary service or local authority animal health and welfare inspectors. In the case of individual animals in distress, they will be individually appointed inspectors from the SSPCA. Members of the SVS and local authority inspectors will have total inspectorial powers in respect of part 2 of the bill and SSPCA inspectors will be restricted to dealing with animals in distress.
Okay. Two members want to ask questions, but I am conscious that we are pushed for time. Are the questions on subjects that will form part of our report and are members desperate to ask them? Elaine Smith was first.
I would like to raise my issues briefly, if I may.
I ask the member and minister to try to be brief. If that is not possible, we can deal with the issues in correspondence.
My questions are on section 22, under the "Promotion of welfare" provisions. In evidence, the suggestion was made that section 22(1) contains a double qualification. A submission said that the provision appears to be "unduly weak". What are your comments on that evidence?
Certainly, I hope that we are not providing any get-out clauses; that is not the purpose of the bill.
If we were to take out the words
Okay. Given the time, I cannot explore the issue further. Perhaps we can do that in the committee report.
I do not have the policy memorandum in front of me at the moment. My recollection is that it says that certain animals are to be delisted, the effect of which will be that it will be possible to keep them. The concern is to ensure that anybody who keeps delisted animals is able to keep them; that is, that they have all the proper facilities and training. It is difficult to achieve the required standards for keeping primates, because they have more needs than does a rabbit, for example.
The International Fund for Animal Welfare would obviously be against the keeping of primates. That is the point. Ministers can create exemptions, so I want to be clear about whether decisions on exemption would be taken on the ground of an animal's welfare.
Can we get some written comments on that? I am conscious of the time. Elaine Smith is right that we have had several representations on that matter and that it has come up in a previous evidence-taking session. We would like clarification on it.
We are clear about the question and about paragraph 81 in the policy memorandum. We are also clear about the consequences of immediate effect or phased implementation of any exemptions and the impact that that would have on animals.
That would be excellent. I see that about half the committee has left, but we have fully explored several issues. More will probably come up in our report, because we have had a huge range of evidence from different witnesses.
Meeting suspended.
On resuming—