Seanad debates

Tuesday, 22 May 2012

Animal Health and Welfare Bill 2012: Committee Stage

 

Section 1 agreed to.

SECTION 2

Question proposed: "That section 2 stand part of the Bill."

3:00 am

Photo of Pat O'NeillPat O'Neill (Fine Gael)
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Will the Minister clarify whether wild animals are included in the definition of what constitutes an animal under this section? I refer, for example, to wild birds and fish. The Bill may be in conflict with certain aspects of the Wildlife Act on which hunters rely to validate their sports activities. I wish to suggest a wording which might be included in respect of wild animals, namely, "Animals, birds or fish living and sustaining themselves at both an individual and a population level in the wild for their requirements". I ask the Minister to consider drafting an amendment containing this wording before Report Stage.

Photo of Brian Ó DomhnaillBrian Ó Domhnaill (Fianna Fail)
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I welcome the Minister. I am seeking clarification of a number of matters. Section 2(1) deals with definitions. Will the Minister provide clarification of what is meant by an intensive unit? Are automated scrapers, automatic feeders and so on included in the definition in this regard?

I have been approached on the definition of what constitutes a farm animal. When one reads the section, it is obvious that the definition in this regard is clear. Some of the farming organisations are of the view that there must be a clear distinction between animals kept for farming purposes and those used for sport, recreation and breeding which are not associated with the production of food, etc. Will the Minister indicate whether sufficient clarification is provided in the Bill of this matter?

Is it safe to assume that under the definition of what constitutes a premises, a farm dwelling house is exempt? I have also been asked to seek clarification of the definition of protected animals. Does the definition distinguish between animals kept for farming purposes and those kept for other purposes? I accept that this is probably covered by the definition of a farm animal to which I have referred.

Photo of Simon CoveneySimon Coveney (Cork South Central, Fine Gael)
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We are trying to cover all animals, including farm animals, in the legislation. However, we make a distinction in respect of farm animals in the context of farming practices and so forth. We also make a distinction in respect of the treatment of some animals which are hunted in the course of normal hunting or fishing practices - this is covered later in the Bill - although some requirements need to be met in terms of acceptable standards and so on. We have tried to make a distinction between animals which are farmed and other animals, whether they are kept for domestic purposes, pets or whether they are wild animals. It may be somewhat dangerous to get into terminology such as "self-sustaining animals". Certain animals are at risk of extinction if we do not act to protect them, for example, the red squirrel. This may be because of other animals encroaching on their territory or because of human activity.

We have deliberately tried to keep "animal" as a broadly defined word. Moreover, we have deliberately referred to "farm animals" because they are in a different category in many ways with regard to acceptable practices in the normal course of farming and so on. Some of the amendments are attempts to deal with this issue and we can discuss them and try to accommodate the Senator's concerns. We will take it amendment by amendment.

I have received a note in respect of the matter of premises and a farm dwelling. The latter is distinct and requires a separate warrant. The broader definition of a "premises" includes a farm dwelling as well. If an animal is being kept within a farm dwelling and is being abused, it should apply whether it is a farm dwelling or another dwelling. If animals are being abused something should be done about it. There is a distinction between human dwelling places and other premises in terms of the need for a warrant to send someone in to examine them. In other words, there will not be authorised officers walking into people's homes because they have heard something or because they have some evidence of cruelty. That would require a warrant whether it is a farm dwelling or an urban dwelling. There is a distinction in terms of the required warrant for entering a person's dwelling. Farm families can and should be reassured in this regard. That is not to say that if there is evidence or a reason to believe there is significant cruelty going on within a house an authorised officer could not get a warrant to knock on the door. I hope the questions have been addressed.

Photo of Pat O'NeillPat O'Neill (Fine Gael)
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The Minister has clarified the position on the question I asked about wild animals. I meant to include a reference to "and includes (but is not limited to)" in page 9 at line 6. This is followed by a list of bovine and other animals. The Minister has clarified it but I presume it includes hounds, working dogs and sporting horses.

Photo of Denis O'DonovanDenis O'Donovan (Fianna Fail)
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That is by way of clarification.

Question put and agreed to.

Section 3 to 7, inclusive, agreed to.

SECTION 8

Photo of Denis O'DonovanDenis O'Donovan (Fianna Fail)
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Amendments Nos. 1 and 6 are related and may be discussed together by agreement. Is that agreed to? Agreed.

4:00 am

Photo of Brian Ó DomhnaillBrian Ó Domhnaill (Fianna Fail)
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I move amendment No. 1:

In page 11, subsection (1), lines 10 and 11, to delete "necessary" and substitute "reasonable".

This amendment relates to the wording "take necessary measures to ensure that". Sections 8(1)(a) and 8(1)(b) follow.

It refers to taking all necessary measures to ensure the animal is unable to stray from the land, that all buildings, gates, fences, hedges, boundary walls and other structures used to contain the animal are constructed and maintained in a manner that minimises the risk the animal will stray and the risk or spread of disease. My amendment seeks to replace the word "necessary" with "reasonable". I seek to do the same in amendment No. 6 on section 11. The word "necessary" has the potential to create difficulties for farm holdings and farmers. I would like to hear whether the Minister agrees with the amendment and, if not, I would have no difficulty with him proposing an alternative wording.

Photo of Simon CoveneySimon Coveney (Cork South Central, Fine Gael)
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It is not an unreasonable suggestion, particularly in regard to section 8, but if I accept an amendment I want to make sure it is legally sound. I want to explain the difference between these two amendments. Section 8 is about preventing animals straying by putting up fencing and developing an environment that ensures animals do not stray. The Senator is suggesting that all reasonable measures, rather than all necessary measures, should be taken to do that. I do not have a strong view on which word should be used, and I would not be against accepting his amendment, but I would like to check that with our legal people.

I have a problem with amendment No. 6 because it is about the duty to protect animal welfare, which is at the heart of this legislation. It is important to have absolute clarity in terms of what we are requiring of people. I want people to take necessary steps to protect animal welfare as opposed to reasonable steps, which is ambiguous. When we are talking about ensuring animals do not stray, the word "reasonable" may not be as vital. If the Senator is happy to withdraw these amendments, I will consider introducing the word "reasonable" if it makes sense legally to do that. If there is a problem with it, I will let the Senator know but I would like to leave the word "necessary" in section 11, if he is happy to agree that. That is as far as I can go on that.

Photo of Brian Ó DomhnaillBrian Ó Domhnaill (Fianna Fail)
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That is acceptable. I thank the Minister for being so forthright.

Photo of Pat O'NeillPat O'Neill (Fine Gael)
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On Fianna Fáil's amendment No. 1 to replace the word "necessary" with "reasonable", will the Minister clarify the matter on Report Stage? He said he would consider replacing "necessary" with "reasonable", as is suggested in amendment No. 1, because it relates to control of disease, but regarding amendment No. 6, which deals with protecting animal welfare, the word "reasonable" should be inserted because the section states: "Where a person having possession or control of a farm animal fails to comply with subsection (1) and that person is not the owner of the farm animal, then the owner of the animal shall also have committed an offence under subsection (3)". Section 8-----

Photo of Simon CoveneySimon Coveney (Cork South Central, Fine Gael)
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That is a separate amendment. We will come to that shortly.

Photo of Pat O'NeillPat O'Neill (Fine Gael)
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I will come back in at that stage.

Photo of Susan O'KeeffeSusan O'Keeffe (Labour)
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I support the retention of the word "necessary". I believe that in both cases, the word "necessary" is what gives this Bill its strength and makes it stand out from where we have been. Most farmers will assume the reasonable thing, but to make it necessary is at the heart of what this Bill is about. I appreciate the Minister will obviously look at it, but I would like to see the word "necessary" retained in both cases.

Photo of Denis O'DonovanDenis O'Donovan (Fianna Fail)
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In fairness, the Minister has expressed a willingness to look at this before Report Stage. Will Senator Ó Domhnaill withdraw his amendment?

Photo of Brian Ó DomhnaillBrian Ó Domhnaill (Fianna Fail)
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I will withdraw it. I accept totally what the Minister has said. I would just like to clarify the reasoning behind the words "necessary" and "reasonable". If a farmer has put up fencing, and for one reason or another, people break those fences and animals stray, then the question of "necessary" versus "reasonable" comes into play, as well as the potential of fines and whether they are class A or otherwise. I wanted to bring in a little bit of common sense thinking on the issue.

Photo of Denis O'DonovanDenis O'Donovan (Fianna Fail)
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The matter will be put on hold until Report Stage.

Amendment, by leave, withdrawn.

Photo of Brian Ó DomhnaillBrian Ó Domhnaill (Fianna Fail)
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I move amendment No.2:

In page 11, subsection (1)(b)(ii), line 19, after "kept" to insert the following:

"having regard to the potential of wind borne spread of disease or of protected or other species of wildlife spreading disease".

This amendment again deals with section 8(1) and the risk or spread of disease onto farmland or premises on which the animal is kept. The potential of wind borne spread of disease, or of protected or other species of wildlife spreading disease, is obviously outside the control of a farmer. There has not been a low incidence of the spread of wind borne disease in this country, although it certainly has happened in other countries. I do not want farmers to be left exposed if that line in my amendment is not put in. I would like to hear the Minister's thoughts.

Photo of Simon CoveneySimon Coveney (Cork South Central, Fine Gael)
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Ironically, we are asking farmers to do a little bit more here, but it is not necessarily a bad thing to do. Disease is often spread by wind borne spores or else by wild animals. For example, the badger culling programme, which nobody likes but is very necessary in my view, has produced significant results in reducing the incidence of TB in Irish herds. They have not taken a similar approach in the UK, and they have had much more difficulty in reducing TB levels in British herds. There is clear evidence to suggest that wildlife can spread diseases. We had a recent incidence of this in respect of bird flu. There is also evidence on wind borne diseases.

If we were to introduce this amendment, it would reinforce the idea that we change the word "necessary" to "reasonable", as per amendment No. 1. If we are asking farmers to take account of the spread of disease through wildlife when they are putting up fencing or housing, I do not think we can be unreasonable to them if a badger gets through the gap and people can make a connection between that and a TB reactor in the herd. I do not think people should be taken to court for that, but we should be encouraging farmers to think about the spread of disease in its fullest sense, such as through wind borne diseases or wild animals.

I would like to look at this amendment and try to improve it a bit. I hope the Senator will not take offence to that. I told my officials that I think this is a useful suggestion, but I am not sure about the actual legal terminology used. I cannot accept the amendment as it is, because I would not want to have to delete it on Report Stage. I would, however, like to accept the spirit of the amendment. As with amendment No. 1, would Senator Ó Domhnaill be happy for me to have a look at it and come back with a proposal on Report Stage? The Senator may also table the amendment again on Report Stage. If I do not accept it then he may press the amendment at that stage if he wishes. If he gives me a chance to have a look at the proposal I will try to incorporate the spirit of what he proposes into the section. His proposal is a useful addition. I would like to talk to some of the farming organisations to make sure that what we are putting in is reasonable.

Photo of Brian Ó DomhnaillBrian Ó Domhnaill (Fianna Fail)
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I will withdraw the amendment. This is a matter of practicality. A farmer should not be legally liable if a wind borne disease is present on his or her land. If the Minister or his officials have an opportunity to speak to some of the farm organisations that would be welcome.

Amendment, by leave, withdrawn.

Photo of David CullinaneDavid Cullinane (Sinn Fein)
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I move amendment No. 3:

In page 11, subsection (2), line 20, after "excuse", to insert "or without right of way".

I welcome the Minister to the House. Senator Reilly, who represented Sinn Féin during the debate on Second Stage of the Bill, is, unfortunately, sick at present. I am stepping in for her today.

Amendment No. 3 deals with rights of way. All public representatives deal with issues of right of way on a regular basis. I am dealing with two such issues in my own county of Waterford at present. I know the importance of rights of way, how they are valued by people, the purpose they serve and the frustration caused if they are removed. A right of way can lead to a beach or a source of water or provide access across a field. Blocking a right of way can be seen as a breach of property rights.

I fully support the main thrust of the Bill. It is important legislation which my party fully supports. It is important, however, that the intent of the Bill in this area is not misunderstood. We have no difficulty with what the Bill is trying to achieve with regard to ensuring that people do not open gates or entrances or do anything that would harm animals. We are concerned that confusion might arise if our amendment is not accepted and the words we propose are not added. It is important that confusion does not reign in issues as important as this. Right of way disputes can lead to unnecessary tensions, and dialogue is the best way of dealing with them. I fear the wording of the section might be misunderstood by some and I look forward to the Minister's response to the amendment.

Photo of Simon CoveneySimon Coveney (Cork South Central, Fine Gael)
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I hope Senators do not get the wrong impression. I will not be able to accept every amendment. I will try to accept the spirit of a number of them.

I know what the Senator is saying here. However, the section is not, in fact, about right of way. It, essentially, says a person shall not damage or interfere with a building, gate, fence, hedge, boundary wall or other structure used to contain farm animals unless the person has a lawful excuse to do so. This includes, potentially, right of way. Even if a right of way goes through a person's farm, we must, nevertheless, try to ensure that people close gates after themselves and do not damage walls. A person who is walking on a right of way may, occasionally, have to climb over a hedge or another obstacle. The existence of a right of way does not limit our responsibility for animal safety while using the right of way. We are always obliged to close gates behind us, and so on.

The terminology in line 20, page 11, which says, "without lawful excuse" should cover a myriad of things, including right of way. I cannot accept the Senator's amendment which excuses people from damaging or interfering with a building, gate, fence or hedge because it is part of a right of way. That is sending a signal that people who are walking along or using a right of way do not have to be conscious of the fact that there may be an animal next door. It is a fair point to raise rights of way but this section does not preclude people from walking along a right of way. If a farmer decides to put a gate across a walkway where there is a legal right of way, there is nothing to stop someone taking a legal case against him or her, but if there are cattle in the field and someone opens the gate and walks through because they see it as a right of way, they have a responsibility to ensure the cattle do not go out the gate. It is likewise if there was a sheep pen or something else of that nature. The aim of the measure is to ensure that as people walk across the countryside, they do not deliberately open gates or release animals. It is about making people conscious of the fact that if there are animals kept either in a pen, a shed or a field, everyone has a responsibility to ensure that if they are enclosed they remain enclosed if that is appropriate. I cannot accept the amendment because I do not want a person to make a case in a court of law, having left a gate open and where an accident ensued, to say in his or her defence that it was a right of way and therefore there was no need to close the gate. I am trying to give a practical example of what might happen. "Without lawful excuse" should cover rights of way as it is and that is probably as far as we should go.

Photo of David CullinaneDavid Cullinane (Sinn Fein)
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Our amendment was not to excuse people who have access or right of way through a farmer's land from not doing what he or she should do, namely, close gates and refrain from damaging hedges, for example. Our concern was that this provision could be misunderstood and abused by some people who might erect gates on rights of way to frustrate people from gaining access. I am mindful of the Minister's response. Perhaps we could examine the matter further on Report Stage. As I am somewhat persuaded by the Minister's response, I will withdraw the amendment with a view to examining the matter again on Report Stage.

Photo of Simon CoveneySimon Coveney (Cork South Central, Fine Gael)
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I will examine the matter again to see whether the amendment adds to the Bill. If that is the case, I do not have a problem with it, but I suspect it is probably not necessary.

Amendment, by leave, withdrawn.

Question proposed: "That section 8 stand part of the Bill."

Photo of Paul BradfordPaul Bradford (Fine Gael)
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This is a matter that concerns Senator O'Neill and which he has partially addressed. The Minister indicated there could be a response down the line. Will the Minister clarify section 8(4), which relates to where a person having possession or control of a farm animal fails to comply with subsection (1) and that person is not the owner of the farm animal, then the owner shall also have committed an offence? There is probably a reasonable explanation for it but it would seem to me that where a person operating an animal feed lot or livery stable does not conduct his or her business properly under the law, the owner of the animal could also be prosecuted. Perhaps there is an explanation but it appears that if the person is not the owner of the farm animal, the owner shall also be deemed to have committed an offence.

In layman's terms it appears to me that if I am the owner of a horse and the horse is in livery in a stable where, unknown to me, things are not operating as they should and there is some sort of inspection, it is not just the operator who is liable to prosecution but I, as the owner of the animal, could also be considered responsible for the difficulty. The way the provision is written would appear to indicate the owner of the animal shall also have a liability. Where a person who is not the owner of an animal but is in possession of it fails to comply with the section, the owner shall also have committed an offence. Perhaps the Minister might reflect on this provision. There may be an explanation, but it is not jumping off the page for any of us. Senator O'Neill brought this matter to my attention and I am sure that he will contribute. In particular, I have in mind people in the equine business. Livery is an important part of the care of horses. As the Senator mentioned to me, a horse might break out of a livery yard or stable where the owner of said stable does not have matters fully in order. That person is not the animal's owner, yet this provision seems to indicate that the owner would also be guilty of an offence. A little clarification might be required.

Photo of Brian Ó DomhnaillBrian Ó Domhnaill (Fianna Fail)
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I agree with Senator Bradford. He has pointed out a matter that might require further discussion. This issue has to do with section 8 on animals straying. According to the wording of subsection (4), if a person is in possession of an animal, for example, someone in a contract rearing or bed and breakfast arrangement who looks after animals, and the animal strays, the owner is culpable even though he or she had no knowledge of or played no part in breaking a fence or the fact that a shed is capable of being escaped from. The owner is seen as having committed an offence. I am unsure. Perhaps I am reading the Bill incorrectly, but this provision seems to leave the owner in a difficult position despite having had nothing to do with the animal going astray. There may be a logical explanation.

Photo of Pat O'NeillPat O'Neill (Fine Gael)
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I thank Senators Bradford and Ó Domhnaill for raising this matter. Senator Bradford has read out the subsection starting on line 25. This matter has to do with Senator Ó Domhnaill's amendment on deleting the words "necessary" and "reasonable". Although I am jumping around the Bill, this subsection is tied to section 11(3), as both read exactly alike. As the Minister pointed out, these two provisions might apply in different circumstances. One relates to the control of disease by prohibiting animals from straying and the other relates to animal welfare.

What reasonable and necessary steps can an owner take if his or her horse, for example, is in a livery yard or a feed lot? What would happen to the owner who sent a horse to a farrier or vet or a dog to a boarding kennel? Will the Minister examine the wording in these two subsections? They will have implications for the rights of owners. An owner may take reasonable steps to ensure that his or her animal is looked after well and give that animal to someone else in good faith. Perhaps the word "necessary" needs to be changed. The subsections' wording needs to be changed, given the differences between livery yards, feed lots, farriers, vets and boarding kennels. There is too great an onus on the owner. If a person hires someone to look after an animal, the onus is on the latter to do his or her job. I will make excuses for no one, but an owner might not be in a position to inspect his or her animal even once per day, week or month. He or she has handed that animal over to be cared for in good faith.

Photo of Simon CoveneySimon Coveney (Cork South Central, Fine Gael)
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I will provide the reasoning behind the wording as is. We are trying to ensure that the owner of an animal does not hide behind an employee working in the yard, on the farm or in the livery if that animal is being abused, subjected to cruelty or whatever. For this reason, the Bill's wording is, "unless the owner shows that he or she took all reasonable steps to ensure that all necessary measures in the circumstances were taken to comply with subsection(1)", which is on the prohibition of farm animals straying. This section is not about cruelty to animals broadly. Section 8(1) states:

A person who has in his or her possession or under his or her control a farm animal shall, having regard to the animal's nature, type, species, breed, development and environment, take all necessary measures to ensure that—

(a) the animal is unable to stray from the land or premises where it is kept, and

(b) all buildings, gates, fences, hedges, boundary walls and other structures used to contain the animal are constructed and maintained in a manner that minimises

(i) the risk that the animal will stray...

I will think about the concerns expressed by Senators. I have good practical experience of what it is like to have a horse 40 miles from where I am living which is being looked after by a friend. Likewise, an owner of a suckler herd may be sharing grazing facilities with another farmer. There could also be the case of a dog placed in kennels when his or her owner goes on holiday which escapes. There are many cases of people who, for whatever reason, may arrange for their animals to be in the possession, control or responsibility of somebody else. We do not want people to be prosecuted because of the irresponsibility of somebody else while minding their animals. At the same time, I want to ensure there is a responsibility on an owner to ensure good care is taken of his or her animals if they are being looked after by someone else. It is about getting the balance right between the responsibility that comes with ownership of an animal and the practical realities of farming. The Department's view is that this issue is covered by the provision "he or she took all reasonable steps to ensure that all necessary measures...". I will examine this provision before Report Stage to see if it can be improved.

Photo of Pat O'NeillPat O'Neill (Fine Gael)
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The wording of section 8(4) should be different from that of section 11(3) as they cover different circumstances, namely, the straying of animals and welfare issues. Welfare is much more important in that somebody should take the necessary rather than reasonable steps. However, this wording should not be used in section 8(4).

Photo of Denis O'DonovanDenis O'Donovan (Fianna Fail)
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I call Senator Paul Bradford. In fairness the Minister has said he will reflect on this issue before Report Stage. He is not shutting the door.

Photo of Paul BradfordPaul Bradford (Fine Gael)
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I appreciate the Minister's consideration of the issue. The section should read, "the owner shall have reason to believe all necessary measures are taken". That would provide for a reasonable balance. Under the current wording, the owner would almost have to have an audit undertaken of the place where his or her animal is kept. It would be better if the obligation on the owner was to have a reasonable belief matters were in order. Owners would not give their animals to people who would not look after them properly. How can an owner take all reasonable steps to monitor someone else's property? I look forward to the Minister coming back to us on this issue. We are all at one in that we want to ensure every animal, be it a farm or domestic animal, is properly looked after and cared for, but we do not want too many difficulties to arise from genuine mistakes. Perhaps we can arrive at a working compromise.

Photo of Simon CoveneySimon Coveney (Cork South Central, Fine Gael)
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This is a genuine issue. What we do not want is prosecutions being taken against owners in circumstances where they may be paying for and have reason to believe, as the Senator said, that everything should be right and proper with a housing facility, livery or whatever. I will examine the issue and will try to arrive at a wording that is fair without absolving people of the responsibility that comes with owning an animal, which is what the legislation is about.

Question put and agreed to.

Section 9 agreed to.

SECTION 10

Photo of Brian Ó DomhnaillBrian Ó Domhnaill (Fianna Fail)
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I move amendment No. 4:

In page 12, lines 19 to 21, to delete subsection (4) and substitute the following:

"(4) The Minister may for the purposed of subsection (3) issue a permit and may attach such terms and conditions to it as he or she considers appropriate.".

This amendment concerns authorised officers, who are defined in section 2 as a member of the Garda Síochána, an officer of Customs and Excise, or a person appointed under section 37 during the period of his or her appointment. Section 10(4) states:

An authorised officer may for the purposes of subsection (3) issue a permit and may attach such terms and conditions to it as he or she considers appropriate.

Without questioning the role or functions of an authorised officer, the subsection gives him or her much latitude. It would be more appropriate for the Minister to have the power to issue a permit and attach such terms and conditions as he or she considers appropriate, following consultation with an authorised officer, rather than give an authorised officer on the ground the responsibility to attach such terms and conditions as he or she sees fit. The subsection appears to be very wide-ranging .

Photo of Simon CoveneySimon Coveney (Cork South Central, Fine Gael)
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The reality is that such a permit would be issued by a qualified person on the ground who may be an employee of a local authority and, therefore, the term "Minister" is inappropriate. In the past this terminology has been used as a basis for litigation by those who have worked on the assumption that all permits must be issued by the Minister personally and not by one of his or her officers. This is an important section. It is about ensuring that we can enforce the rules in regard to the deliberate spread of disease. If a person has an animal which he or she knows to be infected and is trying to get rid of it from the farmyard and sell it, we need to be able to act quickly. That is the reason for authorised officers, whether at local authority level or working from my Department. We do not need a process whereby the Minister would have to personally authorise the actions of an authorised officer for the purpose of inspections or appropriate action on freezing the movement of animals. We have a set of rules for authorised officers governing the appropriate response when they have reason to believe something like this is happening under section 10(3). I would like to place some trust in these officers to behave as they see fit. If their response is over the top, the Minister may have to intervene, but it is important to place some trust in them. The authorised officers will be qualified. Perhaps we might discuss this issue later in the debate.

There was a concern, particularly among farming organisations, that many new officers who might not have much experience of farming but who might be connected to animal welfare organisations would be appointed. Authorised officers need to be qualified. Predominantly, they should be veterinarians or veterinary nurses who understand animals and the complexity of animal welfare issues as opposed to individuals who may well be well meaning but who are not qualified or informed to make the necessary decisions. I am not sure there will be a change to the current group of authorised officers who undertake farm inspections. Experience of how farms work is important to the authorised officer's role. Local authorities, as well as my Department, have a responsibility to put such officers in place in certain instances. Involving the Minister in sanctioning these appointments would probably be too restrictive in the context of getting the job done quickly. Therefore, I cannot accept the amendment.

Photo of Brian Ó DomhnaillBrian Ó Domhnaill (Fianna Fail)
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I fully appreciate the Minister's comments and accept his reference to making the system too unwieldy. If there was an issue in every county on a particular day and everything had to go through the Minister, I appreciate it would take more time to deal with it. The authorised officers will be professional staff, but they can be members of An Garda Síochána and Customs officers. In this case, they will not have the knowledge or expertise to address specific agriculture queries, but I assume they will work with a veterinarian or a veterinary nurse. Will the Minister attach to the legislation a list of the terms and conditions the officers can apply? This would help authorised officers also. I am not trying to confine the terms and conditions they can apply where there is a breach. Would it be appropriate to have prescriptive terms and conditions attached to the legislation in order that where an authorised officer has a query, he or she could deal with it using black and white terms and conditions? The farming organisations and farmers in general would then also be well aware of the consequences of a breach. The expression "such terms and conditions as they may consider appropriate" is vague.

Photo of Simon CoveneySimon Coveney (Cork South Central, Fine Gael)
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The vagueness of the reference is its strength because it gives authorised officers the flexibility they need in responding to any situation. The requirement is that authorised officers be of a high standard, but I would like to provide them with the flexibility they need to respond according to need. The Senator is correct that some officers may well be gardaí or Customs officials because we do not know where an incident will occur. It could happen in a port, mart or at the horse sales, but, more than likely, it will happen on a farm. I will examine this issue again, given that the Deputy has raised it, but we are trying to be flexible in the legislation to allow authorised officers to do their business as they see fit. If there is a problem, we can follow up on it, but that is the intention. Having in place authorised officers who are properly qualified and informed in their work is the best approach to take.

Photo of Brian Ó DomhnaillBrian Ó Domhnaill (Fianna Fail)
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I will withdraw the amendment on the basis of the Minister's undertaking to review the matter.

Amendment, by leave, withdrawn.

Government amendment No. 5:

In page 12, subsection (5), line 22, to delete "This section does" and substitute "This section and section 12 do".

Photo of Simon CoveneySimon Coveney (Cork South Central, Fine Gael)
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This is a technical amendment to include section 12 in the exemption contained in this section in respect of activities authorised in accordance with the Cruelty to Animals Act 1876, the Animal Remedies Act 1993 and the Irish Medicines Board Act 1995. The exemption relates to experiments conducted in laboratories, predominantly for the purpose of testing for human health reasons.

Amendment agreed to.

Section 10, as amended, agreed to.

SECTION 11

Photo of Brian Ó DomhnaillBrian Ó Domhnaill (Fianna Fail)
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I move amendment No. 6:

In page 13, subsection (1), line 5, to delete "necessary" and substitute "reasonable".

In light of the Minister's offer to review the proposal before Report Stage, I will withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Brian Ó DomhnaillBrian Ó Domhnaill (Fianna Fail)
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I move amendment No. 7:

In page 13, subsection (1)(b), lines 23 and 24, to delete all words from and including "that" in line 23 down to and including "suffering" in line 24 and substitute "appropriate to the animal species".

Subsection (1)(b) states:

having regard to the animal's nature, type, species, breed, development and environment, ensure that all buildings, gates, fences, hedges, boundary walls and other structures used to contain the animal are constructed and maintained in a manner that the animal is not caused injury or unnecessary suffering.

I have no difficulty with these provisions. However, the amendment arises from the fact that various forms of fencing may not be suitable for all species. For example, sheep netting would not be suitable for cattle just as barbed wire fencing would not be suitable for sheep. As it stands, a farmer who, in the course of loading cattle into a trailer, finds that one of them has injured itself on barbed wire fencing would be negligent under the legislation even though that type of wiring has been used for generations to contain cattle. I appreciate that the Minister may consider the amendment too broad, in which case I would have no difficulty if he were to come back to the issue on Report Stage.

Photo of Simon CoveneySimon Coveney (Cork South Central, Fine Gael)
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I am not satisfied with the Deputy's wording in this amendment. The difficulty is that the phrase "appropriate to the animal species" does not deal with suffering or welfare issues. One certainly might make the assumption that it does do so, but we are striving for the utmost clarity in terms of the requirements on farmers and other animal owners. Specifically, we must ensure they have regard to the animal's nature, type, species and so on and that they ensure all buildings used to contain animals are constructed and maintained in a manner conducive to the welfare of those animals. We need to ensure animal owners have regard to the animal's nature, type, species and so on and to ensure all buildings used to contain the animal are constructed and maintained in a manner that ensures the animal is not caused injury or unnecessary suffering rather than just say "appropriate to the animal species", because that could be appropriate in terms of efficiency as regards stocking rates, for example, or appropriate as regards access to water, feed or whatever. The section specifically states: "in a manner that the animal is not caused injury or unnecessary suffering". In other words, there must be adequate space. Animals need to be able to move around. They should not fall through slatted floors. Likewise, it is not always cattle. It could be some other form of housing that ensures animals are not causing themselves injury by simply trying to move around. For me, this is quite an important section on which we need to be very clear in terms of people's responsibility in terms of the housing of animals and ensuring animals do not cause themselves unnecessary suffering. I mention sharp objects on the ground or sticking out of the wall and so on. That is not really covered by the words "appropriate to the animal species".

I know what the Senator is getting at and I will take a look at it but we need a much stronger wording than what he proposes. Perhaps there is something we could include which recognises that different types of housing are required for different types of species. I do not have a problem with that. If the Senator wants to come back with an amendment on Report Stage, I will look at it but I want the words "that the animal is not caused injury or unnecessary suffering" and that we have a practical approach towards the housing of animals which will not lead to unnecessary injury. I am afraid I will stick with my wording on this.

Photo of Brian Ó DomhnaillBrian Ó Domhnaill (Fianna Fail)
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I listened carefully to the Minister and accept everything he said. Perhaps the wording in the amendment is not ideal. We will have another look at it. This side of the House supports fully anything which would ensure animals suffer less or ensure there is no undue suffering. Perhaps the wording of the amendment did not encapsulate that. We will have a look at it and maybe come back.

The point we are making is probably from a farming point of view. Barbed wire fences are one example but there are probably others as well. We will have a look at the amendment and come back on Report Stage. The Minister might want to reflect on it as well.

Photo of Simon CoveneySimon Coveney (Cork South Central, Fine Gael)
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If the Senator comes back with something that adds to it, I will look at it.

Amendment, by leave, withdrawn.

Section 11 agreed to.

SECTION 12

Photo of Brian Ó DomhnaillBrian Ó Domhnaill (Fianna Fail)
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I move amendment No. 8:

In page 13, subsection (1)(a), line 35, before "do," where it firstly occurs to insert "intentionally".

This is the prohibition on animal cruelty section. It states: "A person shall not - (a) do, or fail to do, anything or cause or permit anything to be done to an animal that causes injury (including disfigurement) or unnecessary suffering to, or endanger the health or welfare of, an animal". We seek to add the word "intentionally". If a farmer or pet owner does something intentionally, it is a crime.

Photo of Simon CoveneySimon Coveney (Cork South Central, Fine Gael)
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I will give the legalistic answer and then my view on it. The proposed amendment weakens the welfare thrust of this Bill. We have worked hard to achieve a fine balance between the rights of the individual and the need for the State to have the power to intervene where offences have occurred. The Attorney General and the Office of the Parliamentary Counsel have been closely involved in the drafting of this Bill and have been very active in ensuring civil liberties and constitutional rights are upheld. The reason we have sought legal advice on this is that we do not want a situation in which people go to court and say in their defence that they did not mean to do it. If an animal is abused when someone comes home with too much drink taken or if a person flicks a cigarette into a barn and it goes up in flames, killing or burning animals, the person should not be able to defend himself or herself by saying it was not on purpose. In the normal course of law, a person will have a natural defence, if something goes to court, that there were reasons that were outside his or her control. I know exactly what the Senator is saying, and it is not unreasonable. However, according to my legal advice, if we put in the word "intentionally" to obtain the phrase "A person shall not ... intentionally do, or fail to do, anything or cause or permit anything to be done to an animal that causes injury (including disfigurement) or unnecessary suffering to, or endanger the health or welfare of, an animal", it will severely weaken the capacity to achieve prosecutions where appropriate. I can drop the Senators a note on our understanding of that, if they wish.

I can understand why farming organisations have concerns in this regard. Sometimes there are reasons, such as mental health problems, for a person behaving out of character or doing something unintentionally to cause suffering to animals in his or her ownership or control, but those circumstances would be taken account of anyway in a court of law, even if it were not put in as an excuse in the legislation. Such an amendment would weaken the Bill. In every case, solicitors and barristers would try to base their cases around whether the act was intentional. To be fair, much of the cruelty that takes place in Ireland is probably not intentional. Nevertheless, it may be significant, and we need to try to act on that to ensure behaviour changes.

I am told that section 61 provides for mental health problems, so there is another section that deals with that particular issue. I know there have been cases in which severe depression or other challenges may have led people - especially those living in isolation - to behave as they would not normally behave, and we need to take account of such things. That type of person does not belong in prison, and should not be fined; they need help.

In essence, this amendment weakens what we are trying to do, and I am not in a position to accept it.

Photo of Brian Ó DomhnaillBrian Ó Domhnaill (Fianna Fail)
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I will explain where I am coming from. What about animal sports, or even, by a further extension, pest control? There are sports such as stag hunting that we are not too used to up in Donegal, but there are many other sports such as hare coursing. Where does that fall with regard to section 12? The section states: "A person shall not ... do, or fail to do, anything or cause or permit anything to be done to an animal that causes injury." Where does that leave the area of sports? Does it have any effect? I know there is other legislation dealing with sports, but where does it leave horse racing, for example?

Photo of Simon CoveneySimon Coveney (Cork South Central, Fine Gael)
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We went to great lengths to ensure we were not doing anything that would prevent people from continuing to participate in field sports as they would have in the past, as long as that is in a way that is consistent with the codes of conduct enshrined in those sports, including coursing, hunting and fishing. The measure applies only if there is undue cruelty such as the digging out of animals when they have gone to ground, which is unacceptable. In the legislation I am not banning coursing and hunting through the back door. We are trying to get the balance right between facilitating field sports and ensuring the codes of practice agreed for those sports are respected. If people begin to operate outside these codes, that is a different issue. The legislation states:

Nothing in this section applies in relation to anything which occurs in the ordinary course of—

(a) fishing,

(b) lawfully hunting an animal, unless the animal is released in an injured, mutilated or exhausted condition, or

(c) lawfully coursing a hare, unless the hare is hunted or coursed in a space from which it does not have a reasonable chance of escape.

We have spoken to individuals involved in field sports to try to recognise what constitutes lawful hunting. If there is behaviour outside this definition, we need to act on it legislatively. The balance is about right on these issues.

Photo of Pat O'NeillPat O'Neill (Fine Gael)
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I ask the Minister to clarify a few points on section 12. On page 14-----

Photo of Denis O'DonovanDenis O'Donovan (Fianna Fail)
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There are a number of amendments to section 12. Normally we deal with the amendments first, after which we discuss the section.

Photo of Pat O'NeillPat O'Neill (Fine Gael)
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Okay.

Photo of Denis O'DonovanDenis O'Donovan (Fianna Fail)
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It makes matters easier.

Amendment, by leave, withdrawn.

Photo of Brian Ó DomhnaillBrian Ó Domhnaill (Fianna Fail)
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I move amendment No. 9:

In page 14, subsection (2), lines 4 to 7, to delete paragraph (b).

Section 12(2)(b) reads, "cruelly treat or beat, kick, ill-treat, over-work, over-drive, over-load, over-burden, torture, mutilate, infuriate or terrify an animal, or cause, procure or permit an animal to be so treated, infuriated or terrified". My amendment is to draw attention to this paragraph which is over-descriptive. There is nothing in it about normal agricultural practices. The definition appears to cover all agricultural practices because very often normal farming practices, even when conducted professionally, can include infuriating animals. Examples include trying to put a bull into a trailer and practices where animals are dealt with in close confines such as sheep dipping, dosing and tail docking and the de-horning of animals. Many everyday farming practices appear to fall under the definition in section 12. While I propose the deletion of paragraph (b), I would be willing to accept a prescriptive definition exempting normal farming practices.