Mr Mike Radford OBE gave evidence.

Q Welcome, Mr Radford. You have been listening patiently to our proceedings. We have until 4 o’clock, which gives us just half an hour. Will you kindly introduce yourself and make a statement?

Mike Radford:

Thank you very much, Sir David. I am Mike Radford. I am an academic lawyer from Aberdeen. My areas of expertise are animal welfare law and constitutional law. I also chaired the Circus Working Group in 2006-07 and issued a report at that time.

I hope that my written submission is of some help to the Committee. With your consent, Sir David, I think it would be useful to talk about some of the technical legal issues that surround the question. On the surface it looks straightforward, but the time that it has taken to reach this point indicates that it is significantly more complicated than on first thought. It has a welfare strand—the care and treatment of the animals—but at bottom it is an ethical issue. That is a question of judgment for Parliament to make.

The problem—I will be as quick as I can, but I think this is relevant—is that when the Animal Welfare Bill passed through Parliament in 2005-06, amendments were tabled in both Houses to ban the use of wild animals in circuses. The Government at the time did not want anything banned outright under the Act, so an agreement was made that the amendment would be withdrawn and that Ministers would ban particular types of animals by way of regulations under the authority of the Act. Ministers made the point that any ban would be based on scientific evidence. The Circus Working Group, which I chaired, was established as a result.

The Circus Working Group’s first problem was that it had very narrow terms of reference. Performance and training were specifically excluded, largely because the Government at the time intended to deal with legislation dating from 1925. There was also an interdepartmental issue, because the Department for Culture, Media and Sport was involved with performance animals in television and film. The terms of reference were essentially narrowed to transport and housing. There was no money for research; it was essentially a literature review.

Both sides of the debate that you have been presented with today were invited to submit evidence, but it was not their evidence; it was published work that they wished the Circus Working Group to consider. That evidence was then passed to a sub-group, of which I was not a member—a scientific sub-group of international experts, whom I have named in my submission. They came to the conclusion that there was simply no knockout evidence that there was an overwhelming welfare issue. That is not to say that there was not a welfare issue; it is to say that there was no evidence.

That presented a problem for the Government, because the enabling power in the Animal Welfare Act 2006 provides for Ministers to introduce regulations to address welfare issues. The problem was that if there was no identifiable knockout welfare issue, an outright ban by way of regulation could have been challenged on the grounds that it was disproportionate.

I just have to interrupt, because this is a half-hour session, not an hour session. Obviously, colleagues want to ask you questions.

Mike Radford:

Yes, but this is really important.

I am sure that it is important.

Mike Radford:

Do you want to go to questions?

Yes, that is what we are going to do now.

Q Thank you for your very helpful written evidence. One of my concerns about the Bill relates to the definitions of a travelling circus. I notice that in your written evidence, in section 5, you talk about your surprise that there is no definition of a travelling circus in the Bill, even though it defines other aspects of this. From the possibilities that you put down about a travelling circus, could you say why you think greater clarity on a definition is required in the Bill, and what the effect would be if there is not greater clarity and this becomes law?

Mike Radford:

I can give a short answer: legal certainty. Everybody needs to know where they stand. One of the issues that came up this morning was about falconry and such things. What was not mentioned this morning was that last year Parliament introduced the Animal Welfare (Licensing of Activities Involving Animals) (England) Regulations 2018, which have been in effect since 1 October. They cover not performance, but animals that are being kept or trained for exhibition. Those have to be kept in mind, because it means that, regardless of whether the animals are wild or in circuses, there is some regulation. The other issue is that it is local authorities that license. Local authorities are going to need to know whether in any given situation an animal falls within those regulations, or whether it is subject to this ban.

So greater clarity would be helpful.

Mike Radford:

It is essential, I think.

Q I agree entirely. In your submission you refer not only to travelling circuses, but to the definition of “wild animal.” We heard from the RSPCA this morning that it is broadly comfortable with the definition of wild animal in the Bill. Can you expand on your thoughts about clarity around the term “wild animal”, especially in respect of domestication? We have heard evidence today about when an animal is a wild animal and not a domesticated animal.

Mike Radford:

I think that we have to distinguish between a wild animal, a domesticated animal, a trained animal and a tame animal, which can all be different. We used to keep highland sheep, which are undoubtedly domesticated, but I would not say that they were tame in any way whatsoever. A cat is a domesticated animal, but many of you who have cats will know that it is difficult to describe them as “trained.” These terms are used interchangeably, but they are in fact different.

Domestication is a scientific concept. It is a scientific test and it goes into the genetics, the psychology and physiology of these animals. Domestication seems to take place over many generations. The Animal Welfare Act uses the term “not commonly domesticated in the British Islands”. That is also what appears in the Bill. It is one of those terms where we all think we know what it means, but when we look at the detail and at particular cases, we see that domestication turns not on geography, but on the state of an individual animal. An animal that is domesticated in scientific terms will be domesticated wherever it is.

Q Can I ask one final, quick question, since we have your expertise in front of us? You said that the Bill says “not commonly domesticated”. One of the areas we looked is whether the word should be “commonly” or “normally”. Is there a legal difference between those two aspects, given that you are looking for legal certainty?

Mike Radford:

They are not terms of legal art; it would be for a court to decide. On certainty, Ms McManus talked about the racing camels. We go to our local agricultural show every year, 20 miles north of Inverness. Two or three years ago there were racing camels there. I assume that they were on a tour. They would not normally have been regarded as a circus performance, or circus undertaking; it was a troupe of camels. Again, Parliament needs to decide whether there is an ethical argument for the ban, and that is a matter of judgment. If there is, it then needs to make very clear definitions in the legislation of the animals and the context. Otherwise, it is going to be a mess.

I shall try to ask three brief questions, because I know that other colleagues want to come in and we have less than 20 minutes. To put it crudely, what is wrong with keeping a camel, a zebra or a raccoon if in the same circus there are horses, and also if we as a society raise chickens and pigs, frankly in what are sometimes quite cruel circumstances, and then just eat them at the end of it?Q

Mike Radford:

I am here as a lawyer, not as an ethicist or scientist, but it is clearly open to society to make a judgment and decide that all those are unacceptable, some are unacceptable or none is unacceptable. So far as wild or non-domesticated animals in circuses are concerned, my understanding is that there is a view, which seems to be shared in Parliament and among certain elements of the public, that it is no longer acceptable, time has moved on and non-domesticated animals should not be used for performance and entertainment in this way.

Q We have had lots of conversations about polling. What do you think the polling actually suggests about the public mood—the true public mood, over a period of years—and what can you say about the public perception versus the human rights of circus owners? Clearly, we are shifting the balance against circus owners in relation to 19 animals in this country, including a couple of racoons, a zebra and the odd camel or two.

Mike Radford:

I would answer that by giving examples of where attitudes have changed. Fur farming is a very good example: it was considered to be a perfectly acceptable agricultural undertaking. Parliament decided that it should be banned earlier this century, in 2000. The situation with hunting with hounds is that it has not been outlawed altogether, but it was put on a different basis, because public opinion and public perception moved on. I am not in a position to give you different percentages, but clearly it is up to Parliament—you as our representatives—to make that judgment.

Q Do you have an opinion on that now, here?

Mike Radford:

Sorry, on what?

We are shifting the balance, so there is a public perception. Do you know what the polling is over approval ratings or disapproval ratings about “wild” animals in circuses, and how do you think that fits in with the human rights agenda, considering that in this society we use animals for food, entertainment and other things anyway? Where is that balance?

Mike Radford:

My personal opinion is that the first thing that is important is trying to provide an animal with a decent standard of life. Whether that can be done in a circus or not is not for me to decide; it is for Parliament to decide.

Okay, so you do not have an opinion on it.

Mike Radford:

I do have an opinion, but I am here as a lawyer.

Q Fair enough. I do not know whether you can answer this, but let me try you with one other question. Non-governmental organisations say that keeping wild, but trained, animals in circuses is cruel—we heard that very clearly this morning. The circus folk we heard this afternoon say that it is not. Do the NGOs make a good point, or do you think this is part of a journey whereby animals are effectively anthropomorphised—we project free choice and other human characteristics on to them—as part of an agenda that may or may not lead to the outlawing of falconry or bird shooting for sport in the years to come?

Mike Radford:

Circuses have been subject to an offence of cruelty for a good number of years, going back to 1835. Standards, however, have changed during that time. Circuses have been subject to the Animal Welfare Act provisions since 2006. Let me give you an example of how attitudes change. This is not to do with circuses, but I think it illustrates the point. When I was young, if there was an unwanted litter of puppies or kittens on a farm in Cambridgeshire, where we lived, it was standard that they would have been drowned in the water butt. What else would you do? That is now an offence of causing unnecessary suffering, not because the law has changed—the term “unnecessary suffering” is exactly the same—but because public perceptions and attitudes have changed. It is about judgment and attitudes.

Q Mr Radford, in your first answer you were getting to the stage where you were telling us about the need for primary legislation to make this ban work. In the first sessions of evidence that we took today, we were discussing—several people mentioned it—the need for some provision for removing animals from circuses in extremis if there were no other way of dealing with the case and to make sure those animals are cared for. In you view, will it be more effective if those provisions were actually in the Bill, rather than simply being guidance?

Mike Radford:

I think that as much should go in the Bill as possible. Guidance can be helpful, but it is not the same as legislative provisions, as you well understand. The question of how quickly a ban could be introduced was raised earlier. My view is that those who have a licence to use wild animals are entitled to have a legitimate expectation that their licence will remain in place until it expires, and they could have a claim for compensation if it was stopped earlier, but there is no expectation beyond the lifetime of the present licences.

Thank you very much.

Q Do you think the definition of “wild animal” in the Bill is sufficiently clear? I will just make a couple of points. On birds, for example, we have heard that canaries and budgies are considered to be domesticated in Great Britain, but parrots are not—that is one example. Then we heard from the witness Carol MacManus this afternoon that most pack animals— things like llamas, donkeys and ponies—are considered domesticated, but camels are not. What is your take on that? Is it adequately clear if we specify an animal of a kind that is not commonly domesticated in Great Britain, when some of them may be domesticated but just not seen in Britain much?

Mike Radford:

There is a difference between domesticated and tamed. There is a difference between domesticated and trained. The term “wild” is not important in this, because it is further defined by the test of domestication. It is domestication and what that means that is important. In my submission, I gave the example of Scotland, where in both the legislation and the guidance they have tried to further define what domestication means. Then there is a reserve enabling power, which enables a Minister by way of regulations to specify whether a particular type of animal is or is not.

Q Just to help you with what I am concerned about, in the example you gave in paragraph 6.2 of your evidence, an expert Dorothy McKeegan talks about the training of cubs—I imagine you mean lion cubs. Nobody would disagree that they are still wild animals, even if they are trained. That is what she says—they

“still have very strong inherent and instinctive behavioural, physiological…needs” that are

“slightly altered…by hand rearing”,

but they remain a wild animal in law. That is a clear example, but what about a camel?

Mike Radford:

We are not talking about specific animals here. Remember that the test in the Bill is of a kind; one is looking at the type of animal in generality. The courts have already decided—way back in the 1930s, actually—that a camel is not a domesticated animal in Britain. It was a negligence case, not an animal welfare one, but the courts said that a camel could not be regarded as domesticated.

Q So you do not think that there is any danger that we will get cases about camels and parakeets?

Mike Radford:

Oh yes I do, absolutely, if the concept of domestication is not clearly defined. As you have seen today—even without a lot of scientific evidence—there is not a consensus. It is one of those words: we all think we know the meaning, but once we start to drill down, it can mean very different things to different people.

Q It is pretty easy with a lion and, probably, a zebra, but once we get on to some of these other animals, it can be a bit more difficult, obviously.

Mike Radford:

Yes, I agree.

Thanks again for the contributions today. As you probably heard in the earlier sessions, there has been a debate about police powers and whether constables should be able to inspect properties. Can you confirm your understanding that under the Animal Welfare Act 2006 the police have powers to intervene in welfare situations, and that the courts may seize and disqualifyQ ?

Mike Radford:

Yes, but they may only do that under the offences defined in the Animal Welfare Act. If the issue is unnecessary suffering or failure to meet the animal’s needs, in accordance with the welfare provisions the animal may be seized. If there were no welfare or suffering issues and the potential offence was simply that the animal was within the circus and that went against the ban, I doubt that the courts would allow seizure, because under the Animal Welfare Act seizure is allowed on the basis of an offence under the welfare Act being alleged to have been committed. The offence here would be under this legislation, not under the welfare Act.

Mr Radford, I thank you for the time that you have spent in Committee this afternoon and for the expert evidence that you have given us. Thank you very much indeed.

Mike Radford:

Thank you. I hope it is of some assistance.

It certainly is. Colleagues, I remind you that the Committee starts tomorrow at 9.25 am; it will run until 11.25 am, in Committee Room 12. The afternoon sitting starts at 2 o’clock.

Ordered, That further consideration be now adjourned. —(Iain Stewart.)

Adjourned till Wednesday 11 May at twenty-five minutes past Nine o’clock.