Wednesday, 11 July 2012
Animal Health and Welfare Bill 2012: Committee Stage (Resumed)
I move amendment No. 46:
In page 34, subsection (1)(a), line 45, to delete "reasonable grounds" and substitute "evidence".
Both of these amendments relate to an issue we discussed at length previously when the Bill was before the House. It relates to substituting "reasonable grounds" with "evidence" so that any suspicion would be evidence-based rather than based on reasonable grounds. The Minister explained the last day that for enforcement officers to have adequate powers available to them, they had to work on the basis of reasonable grounds. Has there been any change in the Minister's view of these amendments?
My views are as they were. The whole thrust of this Bill is to give authorised officers the capacity to act when they have reasonable grounds to suspect cruelty is going on and there is an animal welfare issue or there may be a risk of disease spread in an establishment. They will be able to go in and attempt to nip it in the bud or address it at an early stage instead of having to build a book of evidence around the welfare issue or disease control issue. In section 38, to which amendments Nos. 46 and 47 apply, we seek to allow authorised officers to act and to enter a premises when they have reasonable grounds to suspect a series of things might or might not be happening. The other provision relates to the risk of disease or the spread of disease or the application of inappropriate medication or hormones to animals. An authorised officer will be able to act at an early stage, and that is a welcome development.
It is important to point out we are not giving excessive powers to authorised officers. Current legislation gives more power to authorised officers in terms of stopping vehicles and searching people. Neither of those things is allowed in this legislation. In case people think we are going over the top, we are not. Authorised officers are limited in what they can do. The Attorney General's office has looked at this carefully and has been restrictive in some areas. It allows authorised officers to enter a premises and undertake a search or make an investigation if they have reasonable grounds for doing so. If we required authorised officers to gather a lot of evidence beforehand, the effectiveness of their actions would not be as strong.
I welcome the sections in the Bill that allow for officers to intervene at an early stage. The Minister referred to entering premises and search warrants. Will the Garda Síochána have to be involved at any stage, in certain cases if it is required to enter premises or is it envisaged that the authorised officers would be able to deal with the matter themselves?
Section 39 refers to the power of the Garda Síochána to arrest without warrant and then there are other areas where a member of the Garda Síochána might be required. If one wants to search a person or to stop a vehicle, a garda can do that but an authorised officer is limited in terms of the powers they have.
Dwelling houses are sensitive areas. Section 38(5) states that an authorised officer cannot enter a private dwelling, except with the consent of the occupier, unless that officer has obtained a search warrant under section 45, other than where he or she has reasonable grounds to believe that before a search warrant could be sought for the dwelling that any evidence of an offence referred to in section 38(4)(c) is being or is likely to be disposed of or destroyed. Essentially, if an authorised officer is in a yard and through a window they see a farmer pouring angel dust onto a fire, they will have to make a judgment call, which is that if they get a warrant and come back the next day, the evidence will be gone. Under such exceptional circumstances they could enter a dwelling house but they would have to be sure they have reason to do so, and be sure that they would otherwise get a warrant if they looked for it. The instances where an authorised officer would do that would need to be exceptional but I wished to draw the attention of Members to it.
Section 38 in its entirety relates to the functions of an authorised officer. The Minister is aware that we partially discussed the functions but also the appointment of authorised officers. In the course of the debate he referred to the fact he is of the view that he may appoint authorised officers from outside of the veterinary area, and that they would perhaps be people with expertise with domestic animals. At the time I quoted a briefing I received in which I referred to the Dogs Trust along with the United Kingdom-based RSPCA in connection with an example of what was seen as over-enthusiasm on the part of those officers. However, I put my hands up to say that I was not familiar with the operational procedures engaged in by the Dogs Trust in this country. I withdraw any comments I made in that context if there was an inference that the Dogs Trust in this country was not carrying out its duties in a humane and efficient manner. The Minister and his official are familiar with the Dogs Trust. Since then I have acquainted myself with its activities. It does an outstanding job. It is involved in the neutering of stray animals. It has a shelter where it takes in stray animals in Dublin. Those involved raise significant sums of money through voluntary subscriptions and Government aid of the order of approximately €10 million.
I assume the Minister has an organisation such as the Dogs Trust in mind in connection with the domestic dimension to the section. The perception from reading the Bill and following the debate is that it tends to focus almost exclusively on farm animals, but this section and much of the Bill applies just as much to domestic animals and their care and maintenance in an orderly and legal manner so as to ensure they are not abused, neglected or injured and that there is a responsibility on those who own domestic pets to come under the remit of the section. I presume the authorised officers the Minister will appoint will have the same powers to go into a house or to intervene if they happen to see any evidence of abuse of domestic animals on the public highways. I wish to clarify that the section applies as much to domestic animals as farm animals. Does the Minister have a view on the possible role of members of the Dogs Trust in the context of this section, as authorised officers in the context of potential injury to animals – I do not have specific evidence in that regard – and an obligation being placed on those who own domestic pets to look after them properly?
I am pleased the Senator took the opportunity to clarify comments he made in a previous debate on the Dogs Trust. My understanding is the Dogs Trust does a good job. It is very professional in what it does and it is very well funded. In many ways it is one of a number of animal welfare organisations which sets the standard both in terms of this country and the United Kingdom. I would have a lot of faith in its activities, as I would in the ISPCA and many other welfare organisations. That said, when I appoint authorised officers, I must be careful that I appoint people who have experience and in all cases qualifications so that they know what they are doing rather than being driven by a well-meaning but inappropriate sense of enthusiasm for the protection of animals.
In order that I am not misunderstood, what I have said is that in certain instances we should put a panel of authorised officers together that is not necessarily composed of vets or veterinary nurses but that those on the panel would be experienced and would have worked with organisations such as the Dogs Trust, the ISPCA or other such organisations. We must make a distinction between the work of authorised officers on farms and commercial operations and private dwellings. In many ways, certain people who work with the ISPCA or the Dogs Trust would have more experience than some authorised officers in my Department in investigations on the abuse of animals or cruelty to animals within private homes. We should use that experience if it is made available. I understand it will be made available if we want to use the resource.
I agree with Senator Mooney's comments. We will try to get the balance right between, on the one hand, using the vast experience that exists, in many cases on a voluntary level, and at the same time ensuring we have panels of people who are experienced and qualified to make the right judgment calls. Ultimately, authorised officers have a lot of power in the legislation. They can enter premises. They must have a reason to enter a private dwelling. They are getting a lot of responsibility and legal protection so one must ensure the right person is involved who will use sound judgment and who has the necessary experience and qualifications to make the right decisions.
Section 42(2)(b) relates to the serving of notices. The section states an animal health and welfare notice shall "inform the person on whom it is served that he or she may appeal the notice to the District Court under section 43...". I would prefer to see an appeal being made to an independent board. I spoke about this issue when the Bill was before the House previously. An independent appeals process similar to that of the social welfare appeals office would be preferable, rather than stating an individual, on receipt of a notice, has to go to the District Court to appeal it. There would be legal costs and it could end up being a minefield for solicitors and the legal profession. Whether it is a minefield, there will be associated, additional costs and a burden on farmers if they are obliged to appeal these notices to the District Court. If a farmer receives a notice in July, the next sitting of the District Court may not be until September or early October. These practicalities should be considered also. We should consider the timeframe and costs involved and the legal minefield that this could be. What are the Minister's thoughts on the matter?
We are addressing this issue with the next two amendments to section 43 which deals with an appeal against an animal health and welfare notice. Until now authorised officers or a member of An Garda Síochána could have taken a case against an owner or someone in charge of animals for cruelty or abuse, but they required evidence to do so. The only course of action open to them was to take a case against a person in court to try to have a fine imposed or, in extreme cases, a term of imprisonment. We have introduced the concept of an animal health and welfare notice which is a type of yellow card, a warning, but it is more than this because it is a warning with conditions attached. If a person has behaved inappropriately in respect of his or her animals, an authorised officer can visit and issue him or her with an animal health and welfare notice which will have conditions attached, with which he or she will be obliged to comply or the next stage will be a prosecution. It is a cheaper way of issuing a warning formally without having to take someone to court, which of itself is welcome.
The Senator is raising a legitimate issue, that is, if a person receives an animal health and welfare notice and believes he or she is being hard done by because of it, to whom does he or she go for an adjudication if he or she believes an authorised office has gone over the top in issuing the notice? Section 43 gives people up to seven days to appeal the content of a notice to a judge of the District Court. Given the way these things work, there will also be an opportunity for a conversation to take place between an authorised officer and the individual concerned on the onus of proof and the animal health and welfare notice. If there were to be an extreme case of cruelty, the authorities would proceed to the next stage. The point of the notice is to get a conversation going between a qualified, authorised officer who is there to advise and assist on the behaviour towards animals and how the way they are being kept should change and the owner of the animals. I will consider whether we need a formal appeals system similar to the social welfare appeals system, but I am unsure whether it would be worth the expense of putting it together and putting in place a timeframe. An animal health and welfare notice is supposed to keep people out of court rather than bring them in the other direction. I will consider the matter, but for now I am not willing to go down the road of what is being proposed and set up an independent appeals process, to which significant costs would be attached. I am not 100% convinced that it is necessary to have such a process yet.
I wish to make a constructive point. To some extent, the social welfare appeals office was a bad example to cite. I imagine every public representative in both Houses is trying to have the backlogs dealt with. Another cheaper and less expensive way of doing it would be to provide for an appeal to the Minister's office. The Minister is independent of the process involving authorised officers. Perhaps the Minister might consider this option. While he was replying, it occurred to me that I often scratched my head when it came to dealing with cases involving the social welfare appeals office because it was always jammed up.
This section relates to the evidence of laboratory analysis and certification. Is the section derived from existing legislation? It relates to legal requirements on farmers. Will the Minister explain the difference? Is there a major difference with the legal requirements for farming activities under the section? It has created some confusion.
Section 50 relates to a technical matter. It allows for laboratory evidence to be given by written certificate and evidence of EU measures to be given by the production of a certified copy. I am unsure whether that clarifies matters.
I move amendment No. 52:
In page 48, before section 56, to insert the following new section:
56.—In proceedings for an offence under this Act an animal, animal product, animal feed or other thing, the owner of the animal shall be held responsible.".
The legislation states: "In proceedings for an offence under this Act an animal, animal product, animal feed or other thing is presumed, unless the contrary is shown, to be owned by the occupier or person in charge of the land or premises on which it was found". Sinn Féin maintains those responsible for animal cruelty or neglect should be the ones sanctioned.
In my party's view, the person who owns the animals should be chiefly held responsible. He or she should be cognisant of where the animals are and their condition as much as possible. It is unfair and a blunt approach to lay the blame and responsibility on the owner of the land on which they are found. Such landowners are unlikely to be responsible for continued neglect or abuse and are primarily responsible for the care of their land in the particular set of circumstances where animals belonging to someone else have wandered onto it. Needless to say, protection of land requires a different standard than the protection of livestock. If there are animals in an unsafe place, it is more likely than not that this is on account of their owner failing to keep an eye on them. My party's issue with the section is that it automatically places the onus on the owner of the land as opposed to the owner of the animals. It includes the words, "unless the contrary is shown". There could be issues with how one shows this if an animal is not tagged or chipped. There was a big debate in the House about horses where, for example, somebody places an animal on somebody else's land and it is automatically presumed that that person is the owner. The section will certainly cause difficulties. As a consequence, we have an issue with the inclusion of this clause in the Bill, about which my party feels strongly. The corollary is that one might find landowners moving animals off their land to avoid being caught under it.
The presumption of ownership could cause confusion and the provision could be open to all sorts of interpretations, both legal and otherwise. Section 56 states, "In proceedings for an offence under this Act an animal, animal product, animal feed or other thing is presumed, unless the contrary is shown, to be owned by the occupier or person in charge of the land or premises ...". I assume it would be proved before the matter ended up in a court of law. It would be up to the authorised officer to liaise with the persons involved. That is the only way it could work in practical terms.
It should be done at authorised officer level rather than letting the matter move up the food chain and into court after a notice is served. Before a notice is issued, such dialogue should take place. I agree it is an issue worth raising.
I will try to clarify the matter. I understand the issue raised, although Senator Trevor Ó Clochartaigh's amendment would not solve that problem. It states, "In proceedings for an offence under this Act an animal, animal product, animal feed or other thing is presumed, unless the contrary is shown, to be owned by the occupier or person in charge of the land or premises...". One must determine who the owner of the animal is. If one cannot do this because there is no tag on the ear of a sheep or calf, the Bill states that, if proceedings are taken, an assumption will be made that the owner of the animal is the person who owns or is in control of the land that the animal is on, unless the contrary is shown by that person; in other words, there will be an onus to provide proof on the person to show that the animal is not his or hers and state why that is so. If there is to be a presumption of ownership of animals, one must have some parameters. This is a reasonable starting point, that the likelihood is that if there is an animal on a person's land, he or she owns it and if he or she does not own it, he or she will at least be able to prove this because the animal is not included in his or her records. The section headed, "Presumption of ownership ...", states "the owner of the animal shall be held responsible". If one finds on a farm an animal that is diseased or has been abused, as a starting point it is not unreasonable to assume that the animal is owned by the farmer who owns or is leasing the land. If the farmer can prove it is not his or her animal, that it has wandered onto his or her land by crossing over a ditch, that is fine. The onus must be on somebody to prove something other is the case when an animal that is not microchipped, that does not have a tag and that has clearly been abused is the subject of a prosecution or proceedings. It is not always the case that the owner must take responsibility, but as part of proceedings one must establish who the owner is in putting the case together. We had this debate earlier. Somebody who takes an animal into care, who may not own it but is responsible for it, may well be the person ultimately held responsible for its neglect. This section is merely about the presumption of ownership. It is not overly contentious to make a presumption that a farmer who has an animal on his or her land that is the subject of proceedings is the owner, unless he or she can prove otherwise. That is not unreasonable. The amendment does not deal with the fundamental problem - what does one do when one finds an animal and does not know who owns it? It is not unreasonable to assume that the person who owns the land owns the animal. If he or she can prove otherwise, so be it, but if he or she cannot, the animal is likely to be his or hers. That is all we are saying.
The Minister is stating the clause is not 100%. Perhaps, therefore, he might rethink before Report Stage because there are problems with it. Presuming, merely because an animal is on somebody's land, that the person owns it is a dangerous precedent to set. For example, if I want to get rid of an emaciated horse, I could leave it on the Minister's land and then warn the authorities. I do not know how he would prove that he did not own it. If the Minister was to tell the judge that it was not his, it could possibly be off the book. It is still a grey issue. If there are perpetrators of cruelty, we need to find a mechanism to bring them to task. Certainly, my party has an issue with automatically assuming that the owner of the land is the one who should be punished. In the case the Minister cited in which a horse has been taken into care and has been subject to cruelty, the owner who caused the animal to be taken into care in the first place should be taken to task. I appreciate from where the Minister is coming in that he does not believe my party's amendment is 100%, but certainly there is an issue with the Bill. Perhaps we might look at the matter again on Report Stage or he might have his officials look at it again. If he is not willing to do this, my party will have to put the matter to a vote because it is unfair to put the onus on the owner.
I support the Minister on this point. First, the presumption of ownership is rebuttable. That is an important limitation. There are too many areas of law, particularly the law of tort, in which the law is so weak in requiring that ownership be established. It can be difficult to prove. In the case of derelict sites, for example, establishing ownership is extremely difficult and in many instances prevents the State from bringing persons to book for their failures. It is important, therefore, that in this area there is a presumption of ownership. If an animal is on one's land, it is within one's ownership and control. It is a rebuttable presumption. One can establish, by manifest or any other means at one's disposal, that the animal is not within one's ownership and control. That is both reasonable and fair.
This is the 21st century and we need to move on. It is important to note that the presumption that an animal on a person's land is in the ownership and control of that person is rebuttable. This qualification provides a reasonable safeguard in this day and age.
If one were to provide in law a non-rebuttable presumption that the owner or controller of land on which there is an animal that is subject to proceedings is the owner of the animal, the provision would be unconstitutional. However, the Bill makes provision for the person who owns or controls the land to rebut any such presumption. One must return to the content of the section, namely, the presumption of ownership. When a case is taken it is necessary to be able to make certain assumptions in respect of the animal, for example, where it came from and who owned it. Provided the person who owns the land is given an opportunity to clarify or rebut such assumptions and provide proof to that effect, I am comfortable with the section.
While I am willing to try to improve the section, any change must achieve the objective set down in the current wording and must not simply provide that proceedings must be against the owner of an animal. The whole point is that in seeking to prove ownership, one must have a starting point. It is not unreasonable for such a starting point to be a presumption, in the case of an animal that is found to have been damaged or cruelly treated, that the animal is owned by the person who is in charge of the land, unless he or she can prove otherwise. To do anything else would create unnecessary ambiguity and make it more difficult to make a case.
The onus of proof will not be excessively difficult for landowners. If a farmer has one elderly, lame and emaciated horse among a number of horses or cattle which are in good condition, it will be clear that the condition of the emaciated horse is not consistent with the way in which he manages livestock. Moreover, he will not have papers for the animal or a record of having it on the farm. He will also be able to swear an affidavit that the horse is not his. It is likely that considerable evidence will be available to the owner of the land to allow him to make a case that the animal does not belong to him. While I understand the issue being raised by the Senator, the provision is unlikely to result in unfair prosecutions in which people who do not own animals are taken to court for abuses they have not committed. I will ascertain whether the wording can be improved.
I acknowledge the argument the Minister is making. He and I are trying to achieve the same outcome. However, the comparison to a housing estate is not helpful because an animal on a housing estate can be moved, whereas the estate is in a fixed position. I am not fully convinced that the section as it stands will achieve the outcome both the Minister and I seek. However, I am willing to withdraw the amendment while reserving the right to introduce a further amendment on Report Stage with a view to achieving the objective we both seek. I would appreciate if the Minister were also to introduce an amendment.
This section provides that, upon conviction, a person may be disqualified from owning or having an interest in animals or be disqualified from working with animals for a period including, where appropriate, the life of the person as the court considers appropriate. This provision appears harsh. I have examined the position in this regard in other jurisdictions in Europe and the United States. Various states in the US are in the process of passing animal health and welfare legislation and in most cases a defined period of disqualification, such as three or five years, is provided for. Under this section, a judge may rule that a person may be disqualified from owning an animal for life.
The Bill will cede this power to the Judiciary. It may be worthwhile to address this provision as it may be unfair. People redeem themselves and penalties are imposed for that reason. While I have not tabled an amendment on the issue, it may be worthwhile to examine the provisions in operation in other jurisdictions, with a view to redrafting this provision.
My view on this and other areas is that it would set a dangerous precedent if politicians were to decide on the length of jail terms for any offence. I refer also to some of the mandatory sentencing that is prescribed in law for drug offences and so forth. We should, by and large, have faith in the Judiciary to make a judgment call in these matters. If someone has engaged in such outrageous abuse, cruelty or neglect of an animal that it is clear he or she is incapable of looking after animals, a judge should have the power to ban that person for life from owning or being responsible for animals. I accept, however, that the person's behaviour must be of a significant nature for such a penalty to be imposed. Unfortunately, some savage cases of cruelty to animals have been reported. In such cases, we should trust judges to make a judgment on the appropriate period for a ban - whether one, three or five years - or to impose a ban subject to the person's consenting to seek support or counselling. It is important to provide for flexibility for a judge in a courtroom, rather than trying to prescribe exact periods that would have to be implemented.
(3) In proceedings for an offence for a contravention of or failure to comply with regulations made under subsection (2) a certificate purporting to be signed by a person employed in connection with an animal tracing scheme stating the capacity in which the person is employed and stating that on a particular day or days, or during a particular period—
Section 63 continues the provision for animal tracing schemes which was established under the national beef assurance scheme. While there is no change to existing policy through the Animal Health and Welfare Bill, the section allows for the possibility of similar schemes to be introduced for other species. The amendment replaces the current section 63 with a somewhat more detailed section which sets out the types of data that can be collected. As I stated, existing policy has not been changed but greater legal clarity is being provided. The section essentially confirms in law the traceability mechanisms we have already established for beef. It provides that a Minister may decide in future to apply a similar scheme to other animals such as horses.
I have a brief question on animal tracing. I seek clarification that animal identification, registration and movement regulations in the Bill, in its entirety, will operate under EU law and do not differ therefrom. In other words, there should be no difference from the current EU regulations relating to animal identification, registration and movement.
This pertains to the animal marts section. Section 65 is being amended to allow for activities involving animal sales other than in the traditional mart to be licensed in the same manner. This change inserts a new definition. As the definitions now no longer end with the word "pigs", the full stop after the word "pigs" is removed and replaced with a semicolon. This definition is then carried through to the subsequent sections of this Part. In other words, the Department had initially put together this section to deal with animal marts and the series of things that must be done in respect of licensing for marts and so on. However, it was rightly pointed out to the Department that there are other activities related to the buying, selling and trading of animals that may not be classified as a mart per se and those areas must also be covered. This is the reason for tabling this group of amendments.
The aim of this amendment is to give more options in respect of penalties for breaches of regulations in marts when granting a licence. At the time of granting such a licence, one can attach certain conditions to it. For example, up to now, if a mart was not being run in accordance with the regulations, the only option available was to not reissue its licence or to revoke its licence. Whereas one could put in place conditions when the licence was being granted in the first place, one could not add them subsequently. This amendment proposes that one can put in place conditions in respect of a licence halfway through its term. It ensures that we do not only have the nuclear option of essentially revoking the licence. Instead, one can put in place conditions in respect of the retention of the licence. It is a fairly pragmatic measure which is about providing non-nuclear options in terms of penalties that may apply. Consequently, in a case in which those running a mart are not behaving as they should, by breaking the rules or failing to apply the regulations, one will have an option other than simply revoking the licence and shutting down the mart. One could attach certain conditions to the continuing license of that mart. This measure should be welcomed by mart operators and farming organisations.
This section relates to fees and costs which would be borne by the owners of animals in respect of, for example, applications for registration, licences or permits. No regulatory impact analysis was carried out in respect of the new Bill although this was done in respect of the previous proposed animal health and welfare Bill. What will be the cost implications for the agricultural sector in particular? What will be the fees? I acknowledge they will probably be set out by regulation. As time is getting short I will not speak further, but I seek an explanation from the Minister.
I am highly conscious of that point and the Department is trying to keep costs and fees to a minimum. It certainly has been conscious of that when putting together the legislation. In addition, there has been a considerable amount of consultation with the IFA in particular but with other farming bodies as well. As Members are aware, they are extremely proactive in trying to reduce costs, fees and levies. I was conscious of this when putting together the legislation. There are some parts of the Bill, not necessarily in this section, in which provision is made for the Minister to introduce new fees or charges. However, it would be necessary for this to take place in consultation with stakeholders, and I assure Members that the Department would be slow to do this. I do not envisage an increase in the cost of farming as a result of what is being done in this Bill.
Can the Minister provide assurances that there might be an awareness that animal welfare groups might be at odds with hunting, in the context of the service agreements or designated authorised officers? Perhaps the best thing would be if the Minister could clarify exactly who are the sort of people he will be entering into our organisations with service agreements.
Yes. Section 74 deals with service agreements. It states that "The Minister may, from time to time, enter in writing into an agreement or other arrangement subject to such terms or conditions as the Minister decides, with another person for the performance of a function under this Act."
My understanding is that there are many service agreements in place already with local authorities and animal welfare organisations. Examples include the provision of dog pound services, the management of stray horses, dogs and cats within localities. Animal Health Ireland and Bord Bia both have service agreements on a number of things they are doing. Animal Health Ireland will be putting together guidelines for farmers on disease control, new approaches to eradicating diseases like BVD and so on. These are the service agreements we are talking about, as opposed to direct service agreements involving welfare organisations putting up panels of people that may be considered to be authorised officers.