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Wild Animals in Travelling Circuses (Scotland) Bill

Overview

The Bill makes it an offence for circus operators to use wild animals in a travelling circus whilst in Scotland. 

According to the Bill a “wild animal” means an animal that is not domesticated. 

A definition of a domesticated animal is that, due to breeding or living conditions, changes can be seen in their:

  • behaviour 
  • life cycles 
  • physiology

This means a wild animal cannot be:

  • made to perform 
  • displayed 
  • exhibited 

This is whether or not an audience is paying money to view the performance, exhibition, or display. 

Wild animals can still be kept and transported by travelling circuses whilst in Scotland. They just can't be displayed whilst in Scotland. 


You can find out more in the Explanatory Notes document that explains the Bill.

Why the Bill was created

Concerns were raised about the use of wild animals in travelling circuses. This was during a consultation on animal health and welfare. There are full and partial bans across many other European Union (EU) and non-EU countries. Scottish Ministers carried out a consultation in 2014. They’ve received feedback from:

  • MSPs
  • the general public 
  • animal welfare organisations 

The responses raise concerns on animal welfare issues and ethical grounds. 

The vast majority were in favour of a ban. The view is that there are no benefits to having wild animals in travelling circuses. People thought that this could only be resolved by banning wild animals in travelling circuses.

You can find out more in the Policy Memorandum document that explains the Bill.

Where do laws come from?

The Scottish Parliament can make decisions about many things like:

  • agriculture and fisheries
  • education and training
  • environment
  • health and social services
  • housing
  • justice and policing
  • local government
  • some aspects of tax and social security

These are 'devolved matters'.

Laws that are decided by the Scottish Parliament come from:

Bill stage timeline

The Wild Animals in Travelling Circuses (Scotland) Bill became an Act on 24 January 2018

Becomes an Act

The Wild Animals in Travelling Circuses (Scotland) Bill passed by a vote of 112 for, 0 against, and 0 abstentions. The Bill became an Act on 24 January 2018.

Introduced

The Scottish Government sends the Bill and related documents to the Parliament.

Wild Animals in Travelling Circuses (Scotland) Bill as introduced

Scottish Parliament research on the Bill 

Stage 1 - General principles

Committees examine the Bill. Then MSPs vote on whether it should continue to Stage 2.

Who examined the Bill

Each Bill is examined by a 'lead committee'. This is the committee that has the subject of the Bill in its remit.

It looks at everything to do with the Bill.

Other committees may look at certain parts of the Bill if it covers subjects they deal with.

Who spoke to the lead committee about the Bill

Video Thumbnail Preview PNG

First meeting transcript

The Convener

The second item of business is an evidence session on the Wild Animals in Travelling Circuses (Scotland) Bill. We are joined by officials from the Scottish Government’s team who have been working on the bill. I welcome Andrew Voas, veterinary adviser, and Angela Lawson, solicitor. Good morning. Members have a series of questions for you, which I will kick off.

Richard Lyle (Uddingston and Bellshill) (SNP)

Before we start, convener, may I remind members of my registered interest?

The Convener

You may do so now or when you ask a question.

Richard Lyle

I will do so now. I refer members to my registered interest as the convener of the cross-party group on and an honorary member of the Scottish Showmen’s Guild.

The Convener

That is duly noted, Mr Lyle. Thank you.

We move to questions. Does the three-year gap between the consultation and the bill’s introduction pose any challenges for the Scottish Government in ensuring that the bill reflects the weight of scientific evidence and public views?

Andrew Voas (Scottish Government)

The bill is based on key ethical arguments. We are aware that there have been developments in scientific evidence, which were outlined in the Dorning and Harris report that was produced for the Welsh Government. Some of the scientific evidence might have strengthened concern about aspects of keeping animals in travelling circuses, but the key ethical arguments remain unchanged from those that we laid out in the consultation in 2014.

The Convener

The Welsh Government has plans for a scheme that is aimed at addressing mobile animal exhibits more widely, and the Scottish Government has acknowledged that the current legislative framework, which in part dates back to 1925, is

“somewhat dated and might benefit from review”.

Given that, did the Scottish Government consider undertaking a follow-up consultation to seek a wider range of views and fill the gap between 2014 and now?

Andrew Voas

We are aware—and, when we were drafting the bill, we were especially aware—that there is a wide variety of other uses of wild and domestic animals for performance or public display. At one end of the range are zoos and safari parks, which have a statutory obligation to be involved in conservation and education and are generally regarded by most of the public as being acceptable. In the middle is a range of uses of wild animals, such as birds of prey that might be seen at country fairs or animals that might be taken into schools so that, for example, children can hold snakes or see what different animals look like.

We are aware that the public do not seem to have the same fundamental ethical objection to those other uses of animals as they do to circuses. The argument is that circuses attract sufficient moral opprobrium that the only appropriate way of dealing with them—given the particular ethical arguments that apply to them—is complete prohibition, whereas for the other uses, it would be appropriate to tighten the registration and licensing requirements in order to modernise the approach that stems from the Performing Animals (Regulation) Act 1925.

The Convener

I presume that the assertion that you just made about the public view is informed by the volume and nature of the correspondence that was received in response to the call for opinions. The responses have not yet been published in detail. Will you give us a flavour of the volume and balance of the views that you received?

Andrew Voas

The consultation analysis has been published and the individual consultation responses were published very recently. The consultation took place back in 2014. The analysis extracted key points that respondents made. In addition, from United Kingdom public opinion polls that date back over the past 10 years, we are aware that 70 to 80 per cent of a random sample of the public support a ban on wild animals in travelling circuses.

The most recent poll was by YouGov in 2013 and was broken down by species. Although there was more support for banning the use of bears, big cats and elephants, there was still significant support for banning the use of creatures such as parrots and snakes.

We have also had a constant stream of correspondence. There is regular correspondence to ministers, which we answer. Some of that is sparked by events, such as the visit of the big cats to Peterhead in 2014. That took place after the consultation, but a lot of letters were sent at that time to ask why we had not yet banned wild animals in travelling circuses.

The Convener

The committee has taken a particular interest in engaging with young people to gauge their views. Was any particular effort made in the consultation to get young people’s opinions and, if so, what form did that take?

Andrew Voas

The consultation was open to everyone. We are not aware of any particular responses from young people. We have not yet had any particular initiative to engage young people, but we have the option to do so as the bill progresses and we could look into that.

From the responses that were submitted, we know that a significant concern was the potentially damaging effect on young people of seeing wild animals in travelling circuses being made to perform unnatural behaviours, being dressed up in human clothing or being invited to do things that lead people to make fun of them or laugh at them. The argument is that animals are seen as props for entertainment or as ways of demonstrating the superiority or cleverness of the trainers in making the animals do certain things. Several respondents made the point that it is harmful for young people to see animals being used in such a way, because it gives them a false impression of wild animals and shows a lack of respect for the inherent nature of wild animals.

The Convener

But you have not spoken to young people.

Andrew Voas

We have not specifically asked young people for their views.

Mark Ruskell (Mid Scotland and Fife) (Green)

Have you done any attitudinal surveys or polls on the other uses of wild animals—for example, to see what the attitude is to wild raptors being used in displays?

Andrew Voas

We have not done specific work on the other uses of animals. From time to time, people write in with concerns about other uses of animals, and we often have discussions with groups such as OneKind and the Scottish Society for the Prevention of Cruelty to Animals, which have raised concerns about other uses. That is the basis for the further work that we plan to do, which the cabinet secretary recently announced, in which we will be modernising the Performing Animals (Regulation) Act 1925.

10:30  



Mark Ruskell

How do you know that the public attitude to circuses differs from the public attitude to other uses of wild animals? You say that there is quite a big ethical difference in the public’s mind between the use of wild animals in circuses and other uses of wild animals, but I am trying to work out what the evidence basis is for that. The consultation was about the bill; it was not about other uses of wild animals.

Andrew Voas

The consultation was specifically about the use of wild animals in travelling circuses. Some people made remarks about other uses of animals, but there were not many of those responses.

Mark Ruskell

What is your basis for the ethical distinction between circuses and other uses of animals in performance?

Andrew Voas

That was outlined in the consultation. Key ethical arguments inevitably apply to the use of wild animals in travelling circuses, and some of those arguments apply to an extent to other uses of animals, but they do not all apply in the same way.

The first ethical argument is to do with the lack of respect that is shown for animals, which I have outlined. Wild animals are perceived to have a particular status, and they should be able to fulfil their natural potential; using them in a way that is seen as demeaning or as a source of amusement is contrary to their natural essence. That is an inherently disrespectful attitude, which, as I have said, can foster harmful attitudes in young people who are exposed to it.

The second argument is that the travelling circus environment involves keeping animals in relatively barren enclosures and subject to the stress of transport and disturbance, and it is inherently difficult in such situations to allow a wild animal to express its full range of natural behaviours and to provide suitable accommodation that allows it to do that. Although wild animals might not suffer physically if they are transported as part of a travelling circus, it is inherently difficult in that situation for them to fulfil their instincts and express wild behaviour—to breed, shelter and move about in the way that they would like to.

The third key argument is that, although we accept some compromise to the ideal welfare of domestic or wild animals—for example, we accept that farm animals are not always kept in optimal, ideal conditions—that is justified by the wider benefit to humans of the ability to have food at a reasonable price or to use animals for leather or milk production. With other types of wild animal keeping or performance, conservation values might apply. Zoos take part in planned breeding programmes, and there might be an educational value in taking wild animals into schools so that children can see them. Other wide benefits justify ethical costs or potential welfare compromises.

The argument is that circuses are basically commercial, money-making operations that purely provide a type of entertainment that is widely perceived as outdated. In the public mind, there is a lack of justifying benefit in circuses that does not seem to apply to the other possible uses of wild animals.

Mark Ruskell

I now understand the bill’s ethical basis better, but I am still trying to understand whether the public view of circuses translates to other forms of animal performance. It is clear that you do not have data on that.

The Convener

Let us explore the ethical issue.

Emma Harper (South Scotland) (SNP)

The policy memorandum talks about ethical versus welfare issues. It is hard to separate them, because ethics and welfare are part and parcel of the same issue. How did you distinguish between the welfare concerns and the ethical concerns about wild animals in travelling circuses?

Andrew Voas

Some of the ethical concerns are clearly related to welfare aspects, such as, for example, whether it is possible to keep animals in circuses without compromising their welfare. That is part of the ethical concern, but the conclusion of Mike Radford’s 2007 report, “Wild Animals in Travelling Circuses”, was that it is hard to find objective scientific evidence that would apply to all wild animal species that might be used in travelling circuses.

There is probably good evidence on animals such as elephants and big cats that might suggest that their welfare is sufficiently compromised in circuses to justify a complete ban, but it is difficult to gather that sort of evidence scientifically and in sufficient detail for every single species that might be used in a travelling circus.

There is a wider ethical objection that, no matter whether a wild animal can be shown to be suffering in ideal welfare conditions, wild animals just should not be used in that sort of environment purely for entertainment, made to perform unnatural acts and dressed up in unnatural regalia or clothing. That wider ethical objection applies to all wild animals—it is not a matter of specific welfare concerns about specific species.

Emma Harper

I think that it is fair enough to look at the ethics as opposed to welfare. We are probably talking about animals ranging from snakes all the way to seals and zebras—a really wide variety of wild animals, elephants and big cats included.

Andrew Voas

Yes, exactly.

Kate Forbes (Skye, Lochaber and Badenoch) (SNP)

Can you elaborate on the three ethical issues: the impact on respect for animals, the impact of travelling environments on an animal’s nature and the ethical costs versus benefits?

Andrew Voas

I have outlined those areas already. On respect for animals, the view was expressed that wild animals should be free to express their natural essence and wildness—telos is the technical term. Some of the remarks that were made in response to the consultation mentioned how putting animals in unnatural environments, making them do unnatural tricks and behaviours and dressing them up in unnatural ways is demeaning or humiliating for them. People felt that animals that should be considered as wild, free and allowed to express their natural behaviour were being portrayed in an unnatural way. They are being brought into an unnatural situation and made to do unnatural things contrary to their natural purpose in life.

Kate Forbes

What about ethical costs versus benefits?

Andrew Voas

As I said, we accept that in a variety of situations there can be a welfare cost to animals that can be justified by some benefit to animals or wider society in general. We accept a welfare compromise for farm animals; they might not always be kept in ideal conditions, but they are fulfilling a purpose by providing food and drink.

Similarly, people have concerns about the conditions in which wild animals are kept in zoos, but zoos fulfil a valuable conservation and education role. They take part in planned breeding programmes that are co-ordinated worldwide and they also do useful work in education. In fact, zoos and safari parks have a statutory obligation to be involved in such work. There is a welfare cost to those animals in being kept confined—they might be kept in more natural environments than in a travelling circus, but people still agree that there is a potential welfare cost to those animals—but that is justified by the benefit of conservation and education and a wider benefit to society.

However, if we consider the travelling circus environment, the welfare cost or the ethical objections to the use of animals in that environment surely cannot be justified by the commercial benefit to the circus owners in providing a spectacle purely for public entertainment.

Kate Forbes

It strikes me that there is a balance to be struck between an evidence-based justification for such legislation and taking into account general public opinion. Presumably, you are trying to find a middle ground where both meet.

Andrew Voas

Yes. The consultation’s approach is quite unusual because we tend to try to base legislation on objective evidence or scientific evidence, if it is available. In this case, the approach has been to try to gather evidence of the general public’s ethical objections. Therefore, the purpose of the consultation in 2014 was to seek views and opinions on the ethical arguments that had been suggested. We had more than 2,000 responses to the consultation, 95 per cent or more of which agreed that the use of wild animals in travelling circuses should be banned. However, there were some detailed responses to the specific ethical questions that were asked. We certainly did not treat the consultation as an opinion poll or a mini referendum; we were really interested in considering the detailed arguments that some of the respondents made. Those are outlined in the response to the consultation.

The Convener

Let us get into the nitty-gritty of the bill.

Richard Lyle

I said earlier that I am the convener of the cross-party group on the Scottish Showmen’s Guild. Who in the industry did you consult about the proposal?

Andrew Voas

The consultation was open to all and we had some responses from the circus industry. There was a response from the circus guild of Great Britain.

Richard Lyle

Yes, but not from the Showmen’s Guild.

Andrew Voas

It was an open, public consultation, which was advertised. I do not think that we had a response from the Showmen’s Guild.

Richard Lyle

I remember going to circuses as a child—most of us can. However, the bill does not define what a circus is. Why does it not to do so? What is a circus to your mind?

Andrew Voas

Our view was that there is a common understanding of what a circus is and that it would take its dictionary definition. I will pass the question on to Angela Lawson, who is the legal adviser.

Angela Lawson (Scottish Government)

The Scottish Government’s view was that there is an ordinary meaning of “circus”. I am sure that the people who are in this room have a view of what a circus is. We did not want to be unduly restrictive in defining it and follow, for example, the Dangerous Wild Animals Act 1976 and the Zoo Licensing Act 1981. That legislation is more than 35 years old and describes a circus as somewhere

“where animals are kept … for the purpose of performing tricks”.

We did not want such a narrow definition because circuses have moved on since then. Often, animals are used for display purposes and are not performing tricks.

If we do not define “circus” in the bill, it will take the ordinary meaning. The “Oxford English Dictionary” is often cited and relied on by courts for defining something if it is left to ordinary interpretation. It says that a circus is:

“A circular arena surrounded by tiers of seats, for the exhibition of equestrian, acrobatic, and other performances. Also … the company or ‘troupe’ of performers and their equipage.”

Basically, it is the place of the circus and the acts that are in it.

Richard Lyle

However, the proposed ban will not apply to a static circus. In my constituency, there is a theme park that, technically, could have a static circus all year round and the bill would not cover it. Is that correct?

Andrew Voas

Yes, that is right. The justification is that the travelling environment is one of the key parts of the ethical objections. It applies to travelling circuses but not to other circumstances. There are other situations—such as theme parks, as you said—in which animals are used for performance but the reasoning is that, if they are permanently based there, there is more possibility for them to be provided with a suitable, stable environment that provides more enrichment and allows them to express more natural behaviours when they are not performing. That is why we focus on travelling circuses.

Richard Lyle

If you will allow me to develop the point, convener, the successful theme park in my area brings in reindeer for Christmas shows and so on. The reindeer travel to the theme park, as happens throughout the land for such shows. I remember being at an excellent Christmas show in Aboyne at which reindeer were present. Will such animals be covered by the act or not?

10:45  



Andrew Voas

We would not regard such displays as travelling circuses.

Richard Lyle

Okay. I will ask my other question. Across the country, people go to garden centres and see handlers standing with owls and other birds of prey. They might be raising money for charity, and kids can learn about how to treat birds and so on. Will those be covered by the act?

Andrew Voas

Again, such displays would not be commonly understood to be travelling circuses, so they would not be covered. We propose to address such situations in the future, with updated licensing or registration.

Richard Lyle

Here is my last question on this theme. Why has the Scottish Government chosen to limit the scope of the bill to the treatment of travelling circuses? People have concerns about the treatment of animals in general. I am a dog lover and do not like to hear about them being mistreated, but I dislike hearing about the mistreatment of any other animal. Why has the Government chosen to select only circuses?

Andrew Voas

The issue of travelling circuses has been the subject of public concern for many years. It was a manifesto commitment of the Scottish National Party specifically to ban wild animals from circuses. It is also something that the UK Government wants to pursue.

As I have tried to explain, the key argument is that the ethical objections to travelling circuses all inevitably apply to them, but they do not apply to the same extent to other uses of animals. As there is sufficient public opprobrium or moral objection specifically to travelling circuses, we think it appropriate to ban the use of wild animals in those environments. However, for all the other possible uses for wild or domestic animals, we do not think that there is sufficient public opprobrium to ban them completely, but we would like to improve the arrangements for their registration and to introduce licensing conditions that are appropriate to the particular uses.

The Convener

Can I explore another aspect of that? The purpose of this session is to clear up any ambiguity either in the minds of members or where the bill might not be clear enough. I have read the bill a few times, and I am not 100 per cent sure whether the overwintering of animals is covered. We have had at least one case in Scotland in which concern was expressed about circus animals being displayed while they were being overwintered. For the record, I would like some clarity on whether wild animals being overwintered in Scotland will still be permissible, or will it be permissible only if they are not displayed and a charge is levied?

Andrew Voas

The bill specifically concerns the use of wild animals in performance, display or exhibition. Whether it involves a charge to the public is irrelevant. Any performance, display or exhibition of wild animals in travelling circuses is prohibited.

The term “travelling circuses” covers any premises connected with them, and so would cover overwintering premises in Scotland to which animals associated with a travelling circus might be brought. Any performance, public display or exhibition of those animals at that overwintering site would be prohibited by the bill.

The bill will not prohibit the private keeping of wild animals that might or might not have been associated with a circus at some point in the past, so it will not prohibit circuses from transporting animals through Scotland or keeping them privately in Scotland if there is no public display of those animals.

The Convener

Thank you. It is useful to get that on the record.

Claudia Beamish (South Scotland) (Lab)

I want to push that last point a bit further. It is hard to fathom why the bill does not prevent animals from being kept or transported by circuses while in Scotland even if they are not going to perform or be displayed or exhibited in Scotland. I understand that it might be difficult for the bill to do that, but it seems to me that that should be part of what happens.

Andrew Voas

As I explained, one of the key ethical objections was that it is the viewing of those animals performing unnatural behaviours that is potentially harmful to younger people and which engenders attitudes that are considered to be disrespectful to wild animals. It is the actual viewing of the animals that is felt to be particularly morally objectionable.

Other difficulties that we would have if we prohibited or sought to prohibit the private keeping of wild animals that had been associated with a travelling circus are that there would be inconsistencies—private individuals are allowed to keep wild animals if they comply with appropriate legislation, and wild animals can also be kept in other environments by zoos, safari parks and other enterprises. If we sought to prevent circuses from keeping wild animals, that could be perceived as discriminatory and, basically, it would affect people’s right to own property, which would contravene the European convention on human rights on a couple of counts.

If across the UK there was a general prohibition on the keeping of wild animals by people who were associated with travelling circuses, we would also potentially have the practical problem of what to do with the existing wild animals. There would undoubtedly be stories of animals having to be put down, rehomed or separated from people who regarded them as companions and, in some cases, almost as family members. There would be the practical welfare difficulty of what to do with the wild animals that were no longer allowed to be kept by people associated with circuses.

The Convener

I would like to raise the question of the definition of a wild animal. There is an argument that changes could occur to the behaviour, life cycle or physiology of some wild animals when they are closely engaged with human beings or engage in particular practices over a period of time. Is there any concern that the definition of wild animals as we would understand it could be challenged?

Andrew Voas

The definition that we have used is that a wild animal is

“an animal other than one of a kind that is commonly domesticated in the British Islands.”

There is a similar status for wild animals under the Animal Health and Welfare (Scotland) Act 2006. That has allowed some useful flexibility in interpretation, and it has been widely understood and accepted.

There are problems, in that “wild” can be defined in different ways for different pieces of legislation and in different contexts. In some cases, “wild” could be associated with danger or with animals that have been free living and which are not captive. For our purposes under the bill, we have used a definition that is closely related to wording under the 2006 act, which we feel provides sufficient explanation but allows some flexibility for changes in circumstances.

The Convener

Okay. Thank you.

Claudia Beamish

What other approaches to addressing issues associated with the use of wild animals in travelling circuses did the Scottish Government consider? Why did it rule those out in favour of the legislative approach?

Andrew Voas

As I have tried to outline, the public demand has been for complete prohibition of wild animals in travelling circuses.

The committee will be aware that a licensing regime was introduced in England. We decided not to introduce a similar regime in Scotland, partly because we did not have any wild animals in travelling circuses in Scotland at the time. We did not feel that a licensing regime would address the key ethical issues that I have outlined, which we think justify a complete ban on the use of wild animals in travelling circuses.

Claudia Beamish

That is helpful. Thank you.

The Convener

We will move on to a different theme, but first I would like to get some context. Could you outline the scale of travelling circuses in Scotland?

Andrew Voas

Travelling circuses visit Scotland, and we currently have one that uses animals—it has horses, dogs and budgerigars, but last year it also had performing domestic cats. There are also human-only circuses that visit from time to time. No circuses with wild animals have visited Scotland for several years.

In England, there are currently two licensed circuses with wild animals. They have particular rounds in Wales and the English midlands, and they have given no indication that they want to come to Scotland in the near future. In effect, we have not had any wild animals in travelling circuses in Scotland for several years.

The Convener

Okay. I apologise if we have already dealt with this, but if a travelling circus with animals that was based in England was heading for Northern Ireland and it travelled through the port of Stranraer, would it be covered?

Andrew Voas

As I have said, the bill would not ban the private keeping of wild animals for travelling circuses, so provided that those wild animals were not used for performance, display or exhibition while they were in Scotland, no offence would be committed by transporting them through Scotland.

The Convener

Thank you. I just wanted to get that on the record.

Angus MacDonald (Falkirk East) (SNP)

I want to turn to the issue of enforcement. Schedule 1 makes provision for local authorities or the Scottish ministers to appoint an inspector for the purpose of enforcing the legislation. What discussions has the Scottish Government had with local authorities, the SSPCA and Police Scotland on the enforcement approach and provisions?

Andrew Voas

We have had discussions with local authorities. We anticipate that, in practice, local authorities would be the key enforcers of the legislation, although it is unlikely that circuses with wild animals will choose to come to Scotland if they know that there is a ban in place. If that did happen, we would expect local authority inspectors to be the first point of contact, as such circuses would also need to apply for public entertainment licences to perform in Scotland.

I might be wrong, but I do not think that we have had direct discussions with the police. We do not think that the Scottish SPCA would be directly involved, but it is aware of the bill and we have had general discussions about it.

Angus MacDonald

Do you plan to have discussions with Police Scotland at some point?

Andrew Voas

We could contact Police Scotland and let it know about the bill.

Angus MacDonald

You are saying that enforcement would be the responsibility of local authority inspectors, but to whom would they be accountable?

Andrew Voas

Local authority inspectors are appointed by local authorities as inspectors in relation to a wide range of animal health and welfare legislation. Ultimately, therefore, they are accountable to their local authority.

Angus MacDonald

I turn to the issue of fines. Schedule 1 also provides for someone who commits an offence under section 1 of the bill to be liable to a maximum fine “not exceeding level 5”, which I understand is currently £5,000. How did the Scottish Government arrive at the proposed maximum fine level? How does it compare with the income from a run of circus performances?

Angela Lawson

The sum of £5,000 was chosen because it is commensurate with other offence provisions in other animal legislation, particularly the Animal Health and Welfare (Scotland) Act 2006, which allows for offences under the part of the act that deals with animal welfare to be set at level 5—£5,000—except in certain instances of extreme cruelty, such as cases involving unnecessary suffering or animal fights. If there was unnecessary suffering in a circus context, we could use the powers in the 2006 act and prosecute under those provisions, which would attract a much higher fine of £20,000.

11:00  



Angus MacDonald

Are you fairly confident that, between the two possibilities, there will be an appropriate deterrent?

Angela Lawson

Yes. As the 2006 act has been in place for some time and it is generally working well, we have been able to use the information from it to feed into the provisions in our bill—in particular, the enforcement provisions.

Angus MacDonald

Do you envisage a situation in which there might be multiple individuals in an organisation who could be held responsible for an offence and that each of them would be liable for a fine, or would it just be the business?

Angela Lawson

If we look at the way in which the bill is drafted, we can see that the person who commits the offence is the circus operator, and that we have listed more than one type of person who could be that operator. Therefore, in some instances, depending on the facts and circumstances of the case, it is possible that there might be more than one fine or more than one person. A lot will depend on the set-up of the circus. It may well be that the circus owner is different from the person who has overall responsibility or who is ultimately responsible for the circus in the UK, in which case there is a possibility of there being more than one fine. There are also situations in which a circus might be owned or managed by more than one person. Sometimes, families might manage a circus together. In such circumstances, there could potentially be more than one fine.

Alexander Burnett (Aberdeenshire West) (Con)

I turn to the economic impact. You come to the logical conclusion that, as there have been no circuses in Scotland for several years, the financial impact would be minimal in practice. I am sure that that is fairly easy to agree with.

As far as the evidence behind the bill is concerned, you mentioned earlier that the consultation had been published. However, we understood that the individual responses had not been published. Will you clarify that?

Andrew Voas

I will ask my colleague who is sitting in the public gallery. [Interruption.] I am sorry—the individual responses are still to be published. I thought that they had already been published. I apologise for my mistake.

Alexander Burnett

That was part of the point of the question. We understand that the individual responses will be published in future. Is that correct?

Andrew Voas

Yes—they are in the process of being published.

Alexander Burnett

In the absence of those, and for the record, will you tell us whether the circus guild of Great Britain, Performing Animals Welfare Standards International and Producers Alliance for Cinema and Television raised any economic concerns with the Scottish Government about the proposed bill and, if so, what those concerns were?

Andrew Voas

We had a meeting with those organisations last week. They explained that, as their circuses have not visited Scotland for several years, they are not particularly concerned about that aspect of the issue. However, they did make the point that, if there were to be a wider prohibition on wild animals in travelling circuses, it could have knock-on effects for the film and television industry. They said that some of the wild animals that are currently used in travelling circuses are also used in film and TV productions—particularly the big cats that members might have seen, many of which will have been sourced from people who also operate circuses. Therefore, there might be performing circus animals that are also used in film and TV production. The organisations’ main concern, from an economic point of view, was that if there were to be a wider prohibition, that would adversely affect those uses of animals.

Alexander Burnett

Is there a timescale for publication of the individual responses?

Andrew Voas

There are some technical difficulties. I thought that they had been published, because I knew that we had given approval for that to happen. I had thought that they were in the process of being published, but there are a few technical problems to do with the volume and the physical size of the data that is to be published.

The Convener

Once you have looked into that, perhaps you could write back to the committee on the timeframes that you are working to.

Andrew Voas

Yes, we will do that. We will write and let the committee know when the responses are due to be published.

Mark Ruskell

Returning to the definition of a circus, it is clear that there are now multiple definitions, and you are introducing a further one, which is based on the “Oxford English Dictionary”. Could that be problematic?

Andrew Voas

We do not think so. I think that there is a general understanding that, if a word is not specifically defined for a particular purpose in legislation, it tends to take its dictionary definition. There is a common understanding of what a circus—in particular, a travelling circus—entails that is different from other uses. We do not anticipate any particular difficulty in defining what a travelling circus is, as commonly understood by the general public or the man in the street.

Mark Ruskell

But it is already defined in law under several different acts. It is stated quite specifically what the nature of a circus is. I am asking about that difficulty, whereby you have two pieces of legislation, one of which defines a circus in one way and one of which—if the bill is passed—will define it in a very different way. Does that create challenges?

Andrew Voas

We find that in other situations, in which a particular word can be defined in a particular way to suit the particular context and measures in one particular piece of legislation. As I have mentioned, “wild” might be defined in different ways for different pieces of legislation. I believe that “circus” is defined for the Dangerous Wild Animals Act 1976, but that is in the context of that act.

Angela Lawson

“Circus” is defined in the 1976 act and in the Zoo Licensing Act 1981 for those specific purposes. The bill concerns wild animals in travelling circuses, which is quite a different purpose from the licensing of zoos. Therefore, we need a different definition of “circus” in relation to the bill.

Mark Ruskell

The act from the 1970s refers to animals being used in a performance setting to carry out tricks or manoeuvres. Is that largely irrelevant to the bill, because you are taking a broader dictionary definition, and you are saying that it does not matter where they are—wild animals are not allowed?

Angela Lawson

Yes.

Andrew Voas

If the situation concerns something that would be commonly understood to be a travelling circus, or premises associated with a travelling circus, that is what is covered in our bill.

Angela Lawson

Technically, we are leaving the definition of “circus” to ordinary interpretation, but we specifically define what a “travelling circus” is, in terms of its movement from place to place.

In such a situation, we fall back on the point that we could not possibly adopt the definition from other legislation, because it would not work for the purposes of the bill. One of the key things is that we want to prohibit display. The definitions in the older legislation did not take into account the possibility that animals were going to be used merely for display.

Mark Ruskell

I am hypothesising, but if someone wanted to get round the eventual legislation, they would have to conduct the circus somewhere other than in a tent, and they would have to have no other ancillary acts around it, such as

“acrobats, clowns, and other entertainers”—

I am reading from the “Oxford English Dictionary” definition. They would have to avoid all of that, and then they could get round the proposed legislation. Is that right?

Angela Lawson

Yes—but then it would basically not be a circus.

The Convener

Regarding the definition, how often does a circus have to travel to be a travelling circus?

Angela Lawson

It just has to travel from place to place. If it is a circus and it moves from one place where it performs to another place and performs there, it is a travelling circus.

The Convener

So if it makes two movements, it is a travelling circus.

Angela Lawson

We specifically do not want to end up in a situation in which people can get out of or avoid the legislation by, for instance, travelling just once a year. If it travels from place to place, it is a travelling circus.

Richard Lyle

You mentioned the Civic Government (Scotland) Act 1982, which covers licensing. The act applies only to Scotland; for showmen, the law in England is different. Councils have had many interpretations of the act, with add-on after add-on.

In relation to Mark Ruskell’s point, what if I was a circus owner and I decided to take out the circus element and put up a sign saying “Wild West Show”? I have been reminded that, for several years, there were stallions—I cannot remember the exact breed—going round for a sort of Vienna horse show. Could horse shows, safari parks, theme parks, fêtes and zoos be affected by the proposed law? You propose the law, but we have to ask about it. I am concerned, because my experience is that councils have a very different perception of the law once it gets out there.

Andrew Voas

As we have outlined, the bill is specifically limited to travelling circuses and things that will be commonly understood to be travelling circuses. Horses are domesticated animals, so they are excluded from the bill. I suppose that there could be circumstances in which a travelling circus chose to call itself something different, but people would still have to consider whether that enterprise or show included elements such as acrobats, clowns, variety acts and performing animals. If it did, there might be a common understanding that it would be reasonable to call it a travelling circus, even though it did not describe itself as such.

Richard Lyle

I am sorry to keep pressing you, but I have had experience of issues being perceived in a particular way but things turning out differently. If someone had a wild animal but it was not part of a circus, because no acrobats or whatever were involved, would that be covered under the proposed law? I see Angela Lawson shaking her head. There is a way round the bill: by not calling something a circus and not having acrobats in it, it will still be possible to have wild animals in it and we will not be able to touch it. Is that the case or not?

Andrew Voas

As we have described, if an act involves a single wild animal and there are no accompanying acts of a traditional circus nature, it will be, in effect, a single wild animal display or act.

Richard Lyle

I apologise for pursuing this, but would you class penguins, performing seals, zebras and llamas as wild animals?

Andrew Voas

The bill defines a wild animal as

“an animal other than one of a kind that is commonly domesticated in the British Islands.”

As penguins are not commonly domesticated in the British isles, they would fall under the definition of wild animals for the purposes of the bill. Zoos and safari parks would be outwith the scope of the bill, because they would not be regarded as travelling circuses.

Richard Lyle

I take it that you have never watched the penguins walk round at Edinburgh zoo.

Andrew Voas

I have, but that is not regarded as a travelling circus.

Richard Lyle

I apologise for pressing you, but my contention is that if someone wants to get round the bill, all that they need to do is remove the word “circus” from the show’s title and take out a few acrobats. As sure as tomorrow follows today, they will have got round the bill.

Andrew Voas

Such an act involving the performance or display of a single wild animal will be covered by our proposed registration and licensing requirements for all performing animals in circumstances other than those covered by the bill, if such an act is not already covered by the requirement to register under the Performing Animals (Regulation) Act 1925 or the public entertainments licence.

The Convener

So if there were any kind of loophole, it would be closed.

Andrew Voas

Yes.

Emma Harper

I agree that it is a difficult issue. In the south of Scotland, there is a display team that has owls and raptors in it. The staff pride themselves on the education that they do, which involves going into schools and promoting conservation. Is it correct that that would not be considered to be a circus?

Andrew Voas

Yes. It would not be commonly understood by the man in the street to be a travelling circus, so it would fall outwith the scope of the bill.

Alexander Burnett

I come back to the definition of “circus”. Any law that is drafted should be as definite and clear as possible.

You say that you want to use the ordinary dictionary definition of “circus” but, as a solicitor, Angela Lawson, you must be aware that precedence will always be given to definitions that have been laid down in court or in existing legislation. How will the use of a dictionary definition overrule that?

11:15  



Angela Lawson

We will make clear in the guidance exactly what is intended by the definitions involved. There is a definition in the Dangerous Wild Animals Act 1976, but the bill is not about the licensing of dangerous wild animals or zoos, and we would not necessarily lift a definition from an area of legislation that was not relevant to the legislation that we were dealing with. Even though a definition of “circus” has been provided in other contexts, those contexts—the Zoo Licensing Act 1981, for example—are not sufficiently similar that the definition there would overrule the ordinary dictionary definition in the bill.

Alexander Burnett

Would that not be the first line of the appeal in the first case that was brought?

Angela Lawson

The Scottish Government has considered the issue and is of the view that it is better to rely on the dictionary definition and ordinary meaning of “circus”.

Finlay Carson (Galloway and West Dumfries) (Con)

Are you confident that we are not creating messy legislation because of the fluffiness of the common definition of “circus”? The first thing that springs to my mind is travelling llama shows, which have been mentioned. Are llamas wild animals? They are not native to the United Kingdom. Are they commonly domesticated? The more this conversation goes on, the more I see opportunities for misinterpretation—including deliberate misinterpretation—of the bill. Are you confident that the bill will not give rise to the kind of claims that Alexander Burnett and Richard Lyle talked about? Could we do with a legal definition of “circus”?

Andrew Voas

There is the experience of England, where there is a similar definition of the animals that are covered and two circuses are licensed. I do not think that there have been difficulties in England and Wales because of confusion caused by other potential uses of animals. I think that the general public are quite clear about what a travelling circus is. The two in England have not visited Scotland for many years, so there has not been a travelling circus with wild animals in Scotland for several years. We are not expecting people to overthink the issue or suggest that particular activities are travelling circuses when a reasonable understanding of the term would suggest that they are not.

Finlay Carson

We cannot expect everyone to be reasonable. There are some determined animal rights people out there who might seek loopholes to stop travelling llama shows, which could be described as circuses. That is where I am coming from. We are not necessarily talking about people who are reasonable and who take a balanced view; we are looking at people who might want to push the law to an extreme. That might include animal rights activists who want all animal shows to be banned.

Andrew Voas

If such people took a case to court, the judgment would be based on a reasonable interpretation of what a travelling circus is, which would be the common understanding of the man in the street, rather than the argument that certain groups might put forward.

The Convener

I think that the committee has covered the issues that we wanted to cover. If we have other questions, we will contact you in writing in due course. In the meantime, thank you both for your evidence, which has got us started on the process.

11:18 Meeting suspended.  



11:24 On resuming—  



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Second meeting transcript

The Convener

We will now take evidence from three panels on the Wild Animals in Travelling Circuses (Scotland) Bill. Our first witness is Dr Dorothy McKeegan, who is a senior lecturer at the institute of biodiversity, animal health and comparative medicine at the University of Glasgow. Good morning, Dr McKeegan. Mike Radford from the University of Aberdeen had hoped to be with us, but he was unable to attend due to family circumstances.

Members have a series of questions to put to you, Dr McKeegan. As noted previously, we may write to you about some issues that arise from the questions and answers. Emma Harper will kick off.

Emma Harper (South Scotland) (SNP)

Good morning. I am interested in the ethical aspects and the welfare aspects of wild animals in circuses. The policy memorandum refers to prohibiting

“the use (performance, display or exhibition) of any wild animal (as defined in the Bill) in a travelling circus in Scotland, based on ethical grounds.”

What are your views on the proposed approach, which seeks to ban wild animals based on three ethical issues: the impact on respect for animals; the impact of travelling environments on an animal’s nature; and the ethical costs versus the benefits?

Dr Dorothy McKeegan (University of Glasgow)

In my view, the three arguments that are set out in the policy memorandum are valid. The first one, the impact on respect for animals, basically uses a fixed ethical rules-based ideology—an animal rights-type ideology—whereby this type of use of animals is seen as disrespectful, exploitative and so on. Of course, that argument also applies to lots of other types of use of animals, which is a bit of an issue for the argument, but the point may be that this type of use is considered to be particularly disrespectful, is perhaps anthropomorphising animals and leads young people to think that animals are there to be used as a commodity and something that we can exploit in this way.

On the second argument, which is the impact of the travelling environment on an animal’s nature—telos—it is not clear to me what exact ethical framework is being used to underpin the argument. It seems to be much more of a welfare argument than an ethical one, although those two concepts cannot be fully separated in this case. The argument seems to be concerned about the consequences of using animals in these contexts, so it is an outcome and consequence-based argument. It seems to be about the freedom to express normal behaviour and therefore raises fundamental welfare concerns about behavioural restriction, training and so on.

The third argument, which is about the ethical costs and benefits, is a very straightforward argument and, in my view, is the strongest of the three arguments. It is based on utilitarian reasoning, whereby we can argue that an action is justified if the benefits that accrue from it are bigger than the costs. I think that that case is difficult to argue in the context of animals in travelling circuses. Again, the argument can be applied in a lot of other contexts and the policy memorandum refers to experimentation on animals, for which there are obviously clear benefits, but for other uses of animals, such as racing, there are not clear benefits and entertainment is also the main context.

The three arguments are all valid. I think that the first and the third arguments are the most ethical and the most obviously based on ethical frameworks that I recognise. The argument about the ethical costs and benefits is very strong.

Emma Harper

A way in which I was trying to separate out ethics from welfare was by thinking about slavery. We have decided that it is unethical to have slaves. Just because you feed them and protect them in an environment does not make it okay—we still agree that slavery is unethical. It is difficult to tease out the issues to do with welfare. How robust is the evidence on welfare as it is defined in the Dorning review?

Dr McKeegan

The first argument—about impact on respect for animals—is not to do with welfare. It is to do with dignity and respect for animals, and those are not really to do with welfare. Animal rights groups will talk about welfare, but the fundamental basis of animal rights in an animal rights framework is to do with respect, liberty and so on, and welfare is not so important. The utilitarian reasoning requires welfare information to work out what the costs to the animals actually are, so we cannot disentangle welfare in that case. I have read the Dorning report and there has apparently been quite a lot of new evidence since the 2007 Radford report. There now seems to be a more powerful case that there are significant welfare concerns in these animal use contexts. The Dorning report concluded that all five freedoms—the five freedoms being a framework of basic animal welfare rules—are compromised or potentially compromised in those contexts. The report even concludes that these animals have a “life not worth living”, which is a strong statement. I am not sure of the evidence to support that, but I think that there is evidence to support the compromise of all five freedoms.

10:15  



Finlay Carson

I think that you have answered the questions about ethics and welfare. What are the advantages and disadvantages of the Scottish Government’s approach to welfare and ethics in the bill?

Dr McKeegan

It is a reasonable approach. The Government could have played the welfare card more strongly in its justification for the bill; it seems to have gone very much for an ethics basis for the bill—there is such a basis. I do not know whether that is because the bill documents were produced before the Dorning report was published or overlapped with it. The Dorning report, which is well written and powerful, gives a strong welfare basis for the bill.

It is important that the ethical arguments are made. When people on the street are asked about the issue, most people react morally, without having a lot of knowledge about the welfare costs and so on—I think that that was the outcome of the consultation. The comments on ethics reflect public opinion and concern.

The Convener

You referred to five freedoms. For the record, will you say what they are?

Dr McKeegan

Certainly. They are a basic checklist for animal welfare, which was developed a long time ago by the Farm Animal Welfare Council but is now used in other animal welfare contexts. They are freedom from hunger and thirst; freedom from discomfort; freedom from pain, injury and disease; freedom to express normal behaviour; and freedom from fear and distress. The Dorning report set out ways in which those freedoms might be compromised for wild animals in travelling circuses.

The Convener

Thank you.

Mark Ruskell

I want to ask about the definitions in the bill. First, is “circus” adequately defined?

Dr McKeegan

I am not a policy maker, so I am not sure that I can comment on that. I think that the drafters have gone for a commonly understood term, which should be adequate for the purposes of courts.

Mark Ruskell

Do you foresee potential loopholes in the definition?

Dr McKeegan

I think so. There is concern about things such as mobile zoos—I know that such issues are meant to be dealt with separately, but there is definitely an overlap, depending on what is classed as a performance. There are zoos that have animal performances, too, and although they are not covered by the bill, there is not much difference in ethical terms between such performances and performances in circuses, when we consider issues of respect for and dignity of the animals involved. There could be issues as a result of a blurring of the lines.

Mark Ruskell

What are the particular issues with, for example, static performances, mobile zoos and other types of animal performance and entertainment? Do such activities raise equivalent ethical and animal welfare issues? Do they raise different issues?

Dr McKeegan

If animals in a static environment as opposed to a travelling circus are performing tricks or being used in ways that might be perceived as disrespectful, the issues are the same. It is reasonable to assume that the potential for compromising welfare is worse in a travelling circus, because a travelling circus’s capacity to improve conditions for the animals will be more limited—it will not be able to provide large and excellent enclosures for animals in the long term. That is why travelling circuses have been targeted; by their nature, they must relocate the animals regularly.

Mark Ruskell

Do you see growth in other areas in which animals are used for entertainment? We have talked about reindeer in shopping centres at Christmas, for example.

Dr McKeegan

It is difficult to generalise. Much depends on the way in which animals are used and how they respond. Some mobile zoos seem to have educational aspects, with people going into schools to show animals to children. If that is done in a positive way, that can be part of the utility that helps to even the balance in the cost benefit analysis between the cost that the animals bear and the benefits to society. Much depends on what animals are used and how they are used.

Mark Ruskell

Have you come across an education or conservation aspect to the work of circuses?

Dr McKeegan

I agree with the Dorning report that such aspects are marginal. I am not sure that anyone goes to a circus to be educated. The report highlighted the negative impacts on perception of wild animals, in that children might regard wild animals as pets or willing participants in activities, when that might not be the case—I agree with Dorning on that, too.

Mark Ruskell

Is the definition of “wild animal” in the bill adequate?

Dr McKeegan

I think so. The definition is quite broad—I believe that it refers to any animal that is not domesticated in the British isles—but I like that. People are more concerned about big cats and other large animals, and large charismatic mammals tend to draw the public’s interest more, but other smaller animals, reptiles and birds are equally capable of suffering and equally deserving of protection. As a result, I would quite like to keep the definition broad.

Mark Ruskell

Finally, what are your views on the provision in the legislation allowing wild animals to be kept and to travel in Scotland as part of a travelling circus? A distinction is being made between keeping an animal and displaying it for entertainment, but I have to say that I do not understand the difference in terms of animal welfare and ethics.

Dr McKeegan

I suppose that, because the grounds of the bill are primarily ethical, the focus is on the performing part, although the welfare of an animal could still be compromised by the travelling part. However, if you do not allow people to keep these animals, that will be at odds with other legislation that allows members of the public to do so, as long as they have a licence under the Dangerous Wild Animals Act 1976, if that is appropriate. I think that the Government is trying to avoid that inconsistency, but I agree that there are definitely potential welfare issues with animals travelling but not performing.

Mark Ruskell

Does the bill adequately capture that?

Dr McKeegan

It would be helpful if it had more of a focus on the travelling part. If the animals were kept at one location, that would be akin to the situation with someone who privately owned such animals.

Mark Ruskell

Right.

Dr McKeegan

Does that make sense?

Mark Ruskell

Yes.

Richard Lyle (Uddingston and Bellshill) (SNP)

First, I refer members to my entry in the register of members’ interests. I am the convener of the cross-party group on the Scottish Showmen’s Guild and an honorary member of the Scottish section of the Showmen’s Guild.

I want to ask you a question that I asked last week about the definition of “circus”, but you might well say that the issue does not fall within your scope. If I had, say, a wild west show that had animals in it, I would think that I would not be covered by this legislation. What do you think?

Dr McKeegan

Are you talking about a show that uses horses instead of wild animals?

Richard Lyle

No. This is the Wild Animals in Travelling Circuses (Scotland) Bill, but what if I had a wild west show? I might say, “I have a wild west show, not a circus.” What is your definition of “circus”?

Dr McKeegan

I am sorry, but I am not sure that I am equipped to answer that. However, I would suspect that, if it was a circus-type event and if people considered it to be a circus, it would be a circus.

Richard Lyle

On Sunday, I attended a very good show at Blair Drummond safari park that featured seals and so on. That sort of thing will not be covered by this legislation, because it is static, but what is your definition of “wild animal”? What if I were a trainer who had brought up and trained cubs and I said, “These are not wild animals”? What would your view be?

Dr McKeegan

I think that they would still be wild animals, because they would still have very strong inherent and instinctive behavioural, physiological and psychological needs that would have been slightly altered but not completely removed by hand rearing. Such needs are not just down to the environment that the animal is in; these are behavioural needs and expressions that are consistent across a species, regardless of how the animal has been reared. I think that those cubs would still be wild animals.

Richard Lyle

Finally, is there anything missing from the bill?

Dr McKeegan

No. Again, I am not a policy maker, but I think that it does what it is supposed to do.

Richard Lyle

Thank you.

The Convener

Going back to Mr Lyle’s point about animals that have been reared from cubs, would you still hold the same view about the fourth or fifth generation of animals that had been reared in the circus system?

Dr McKeegan

Yes, I would. The domestication of animals is not just about captive breeding and sometimes hand rearing but about the behavioural and genetic modification of the animal away from its wild progenitor. That is not going to happen with rearing generation after generation of animals in captivity. These are still wild animals.

The Convener

If you had a blank sheet of paper and were left to design a system that addressed concerns about the use of wild animals in circuses, would you have come roughly to this conclusion? In other words, are you content that this is the best way of tackling the issue?

Dr McKeegan

I think that it is—for now. However, there is an issue and a gap with regard to mobile zoos, where I think there are very close parallels in terms of ethical concerns and welfare issues. I am sure that it is too late now, but some kind of combined approach might have been more efficient. Nevertheless, as far as the specific requirements are concerned, I think that the bill is reasonable. Again, I am not a policy maker, but that is my best understanding of it.

The Convener

I am not sure whether you are qualified to answer this question, but I will ask it anyway. Do you see any potential impact on local economies as a result of this legislation?

Dr McKeegan

I do not think that I am qualified to comment on that, although I believe that very few of these circuses visit Scotland. Obviously it will have an impact on the people involved, and that will have to be considered, but I do not think that I can comment any further.

The Convener

As members have no more questions, I thank Dr McKeegan for her time and her very useful evidence.

I suspend the meeting for a couple of minutes to change over witnesses.

10:25 Meeting suspended.  



10:27 On resuming—  



The Convener

We will now take evidence on the Wild Animals in Travelling Circuses (Scotland) Bill from the second of today’s panels. I welcome to the meeting David Kerr, senior animal health and welfare officer, Argyll and Bute Council; and Andrew Mitchell, regulatory services manager, City of Edinburgh Council. Emma Harper will start the questions.

Emma Harper

I am interested in the consultation process for the bill. What has been your engagement in the bill’s development?

Andrew Mitchell (City of Edinburgh Council)

Not much, from my point of view. I am aware of the evidence that a Scottish Government official gave to the committee a couple of weeks ago, and I think that the Convention of Scottish Local Authorities has been involved. However, when I checked with the Society of Chief Officers of Environmental Health in Scotland and trading standards, both of which are likely to have to enforce the legislation if it comes into force, they were largely unaware of the bill.

David Kerr (Argyll and Bute Council)

I am a little concerned to hear that they were largely unaware of it, because there has been input from local authorities through the Scottish animal health and welfare advisory group. I know that Helen O’Neill of COSLA brought together the consultation responses from the local authorities that responded, so there will have been some feedback from chief officers, perhaps indirectly, through the advisory group.

Andrew Mitchell

That is what I would expect, and it is merely an indication that engagement has taken place at quite a technical level. At the more senior levels of local government, which will have to resource the legislation and make policy decisions in relation to it, and certainly at my level, there is much less awareness. The issue has been around for some time, but I think that consultation has been at a very technical level.

David Kerr

I am sure that you are right.

The Convener

I call Richard Lyle.

Richard Lyle

If you will bear with me, convener, I want to tease something out. I was a councillor for 36 years and I found that councils in different authorities interpreted the rules and regulations on everything differently. Have your councils banned circuses from council land?

Andrew Mitchell

Historically, the City of Edinburgh Council tried to use the licensing provisions in the Civic Government (Scotland) Act 1982 as a way of banning circuses, but that was overturned by a court decision in the late 1980s, which still stands. The council then adopted the position of not allowing any of its land or property to be leased to anybody who uses performing animals, whether or not they are wild animals as defined in this bill. The practical effect of the council’s position is that, in Edinburgh, a circus of this type can be located on only one or two private sites, which would mean approaching private landowners as opposed to the council.

10:30  



Richard Lyle

Would they also need to get a licence under the 1982 act?

Andrew Mitchell

Not necessarily. I am conscious that the Scottish Parliament information centre briefing paper on the bill refers to the powers under section 41 of the 1982 act, but those powers are entirely discretionary. Section 9 of the 1982 act requires local authorities first to adopt a resolution with regard to section 41, and then to agree to include circuses or something similar within the resolution. It is therefore quite possible that different local authorities around the country might not include circuses in their resolution or could at some point choose to take circuses out of their resolution.

Richard Lyle

Mr Kerr, has Argyll and Bute Council banned circuses?

David Kerr

Historically, Argyll and Bute Council has taken very much the same line as Edinburgh on circuses. There was a sort of hiatus in that position after 1996 when some of what had been Dunbartonshire, which did not have the same policy, was added to Argyll and Bute. Until the policy of Argyll and Bute Council was realigned, Roberts’s circus operated on private ground in the area. The circus did not display performing wild animals, but it did have non-domesticated animals, which were accompanied by a rather celebrated elephant.

Richard Lyle

As I have said, I just wanted to tease out the current policy in your councils.

My question is whether the bill’s provisions can be circumvented. Its title refers to wild animals in circuses. You probably heard my question to the previous witness on this matter, but if I stated that my show was a wild west show but it had wild animals in it, how would your council respond to an application for a licence for it?

Andrew Mitchell

It would require a public entertainment licence. Personally, I think that the absence of a definition of “circus” in the bill is not helpful. For those of us who might have to enforce the legislation on the ground, there is a lack of clarity about what a circus is, and that could mean our spending a tremendous amount of time and energy on ensuring that what was being presented to us met the legislative provisions. If the legislation is not clear, we will have to spend tremendous amounts of time proving to the procurator fiscal that something is a circus and trying to persuade them to take the case up.

Richard Lyle

Do you think that the bill as drafted misses a trick?

Andrew Mitchell

With regard to the aspect that we have been discussing and a couple of other matters, the provisions in the bill could be fuller in order to achieve the policy intention. For example, I cannot imagine trying to enforce the legislation without involving a vet. With what would be defined as banned animals, I would generally expect us to engage a vet, who could give evidence to a court and satisfy it that the animals involved were not normally domesticated in the United Kingdom.

The Convener

Surely that sort of thing could be covered in the guidance that accompanied the legislation.

Andrew Mitchell

Perhaps so, if the guidance had a statutory basis. When I read the bill, though, I saw no reference to guidance accompanying the legislation.

Richard Lyle

How would you define a circus? As I remember it, a circus has acrobats, horses, lions, tigers, bears—I am sorry for using that term; it makes it sound like one of these other shows—and clowns. Is that your definition of a circus?

Andrew Mitchell

That is certainly something that I can relate to and would be familiar with. However, my concern is that operators might seek to miss out a few of those elements, put the event in a different environment—say, without a marquee—and then argue that it was not a circus. That would present a challenge for those of us enforcing the legislation.

Richard Lyle

So I could call my show “Joe Bloggs’s Wild West Show” if it had wild animals but no acrobats.

Andrew Mitchell

That is a good example of what could be a grey area and where things could be made difficult for us. As for the policy intent, that is a matter for Scottish Government officials. It strikes me, having read the bill and listened to the evidence so far, that it will perhaps not be as easy to enforce as has been suggested.

Richard Lyle

Just to finish off, Mr Kerr, you have heard the City of Edinburgh Council’s view. Does Argyll and Bute Council hold a similar view?

David Kerr

I share a lot of the concerns. All the legislation that I work under is criminal law, such as the Animal Health and Welfare (Scotland) Act 2006 and the Animal Health Act 1981, in which definitions are crucial. Anything that blurs the definitions brings in some element of reasonable doubt—or, if the person has a good defence, perhaps not particularly reasonable doubt. For us to enforce legislation effectively, we need clear definitions to help us. Given current business practices, it is very unlikely that we will be confronted with an actual circus. It appears much more likely that there will be issues with people trying to circumvent legislation or with other operations that are similar to circuses being reported to us, but we really could do with a definition that is as clear as possible.

Richard Lyle referred to a travelling show involving animals that are not normally domesticated. That would probably be covered by the definitions in the bill, but I agree with my colleague that veterinary input would be needed. I support some of Dr McKeegan’s views in that respect. All the legislation that I currently enforce is science based, which is in some ways easier to deal with than legislation that is ethics based. If there is an issue with a zoo licence, I can go to very specialist, skilled, highly respected veterinary surgeons who can support me in what I am doing. Moving things to an ethical basis could be very profitable for defence teams, because what we need when we enforce legislation is a clear definition. We tend to say that the definition is common sense and obvious, which is true, but in a court of law one has to define things to the nth degree, and that can take a lot of time.

If there is great complexity in enforcing legislation, the Procurator Fiscal Service will look askance at taking the cases, because they are very intelligent and well-educated men and women who do not want to embark on prosecutions that are likely to fail. Ladies and gentlemen, all I can say is that the better you can define the legislation and the subject of it, the easier it will be to enforce it effectively.

Richard Lyle

Thank you, gentlemen, for confirming my original thought. We need better definitions.

Finlay Carson

On the back of that, I note for the record that you have both confirmed that the definitions of “circus” and “wild animal” could cause problems in the bill as drafted.

How do you currently cope with events at, say, an agricultural show, where there might be wild birds—for example, in falconry displays—or a show involving llamas arriving at the show ground and jumping hurdles, going through hoops or carrying things? How does the council cope with such events, which might not be strictly defined as travelling circuses?

David Kerr

Such events are primarily dealt with through public entertainment licences, usually on the environmental health side of the business. However, I see where you are going with your point. If the legislation has not been drafted well, people who have a strong interest in animal rights may elide the legislation to cover something like what you have just described. As a result, the terms will have to be defined, unless the Scottish Government decides in due course to deal with such events in the same way. You are absolutely right to highlight a blurring of the edges in that respect.

When I read some of the preliminary papers, I saw that Andrew Voas, on the veterinary side, made it clear to the committee that he felt that there should be clear differentiation in the legislation so that it does not cover that type of show. Finding out how precisely you would do that in law, though, would give your draftsmen a very busy time.

Mark Ruskell

Following on from that, are there things in the bill that should not be in it, or are there things that have been left out of its scope but which should be in it?

Andrew Mitchell

I share my colleague’s concern that, at the margins, local authorities will come under intense pressure from groups who have concerns in this area and who will seek to blur the lines and push local authorities into using the legislation to get into areas that Parliament perhaps did not intend them to get into.

A second point is that the enforcement powers are probably not the greatest. In reality, if a travelling circus turns up, we will be able to investigate and report the matter to the procurator fiscal but there is nothing to enable us to stop the circus continuing to operate in the meantime. Powers to issue fixed-penalty notices and to require the circus to stop are missing from the bill.

Somebody gave the example of zoos displaying animals. We can clearly see that there will be an argument over whether the bill goes far enough in covering that kind of thing. My personal view is that, if the Parliament is going to regulate in this area, it would be helpful to cover it in its entirety, not just one aspect of it.

David Kerr

It would be useful if legislation on dangerous wild animals, zoo licensing and circuses contained common definitions, as that would assist the local authorities, which are the enforcing bodies for all of those things. Unfortunately, when people have strongly held and passionate views or a tendency to wish to evade the law, they look for the margins and for confusion and blurring to get a handhold.

Mark Ruskell

The Government has committed to consulting on those wider forms of animal entertainment. Do you not have confidence in that process?

David Kerr

I am sure that everyone will contribute to the best of their abilities. As we perceive it, though, the proposed legislation stands almost in isolation but its edges are blurred. For instance, I believe that, under the bill in its current form, a local authority would not have a statutory duty to enforce it. That has to be taken into account, particularly when local authorities are very short of resources and skilled specialist manpower. Let me put it like this: a local authority would be very cruel if it gave a new recruit the job of trying to take action against a travelling circus.

Andrew Mitchell

If the bill were to be passed, we would have that legislation and, failing that, the public entertainment licensing system. If that is not available, the local authority would be reliant on the Performing Animals (Regulation) Act 1925. If you are looking for a coherent approach, it is worth bearing it in mind that that antiquated and out-of-date act has been scheduled for repeal for the past 10 years but is still on the statute book.

Mark Ruskell

I want to return to the definition issues around the terms “circus” and “wild animal”. There is a proposed definition that comes from the “Oxford English Dictionary”, and other definitions exist in an act from the 1970s and the 1925 act. Which definitions would you like to be used in the bill, for clarity?

David Kerr

That is not for me to decide. I should say that, with another hat on, I am chairman of the Scottish animal health and welfare panel, so I represent the ground troops of animal health and welfare in local authorities. We need something that is clearly defined so that we know that, if something is on one side of the definition, it is a circus and, if it is on the other side, it is not a circus. It is up to more knowledgeable and legally trained minds than ours to make that definition. However, I assure the committee that, if the definition is blurred, enforcement will be shaky and blurred as well, and none of us wants that.

Mark Ruskell

Last week, a Scottish Government official said that they do not expect people “to overthink” the definition of a circus.

David Kerr

I agree with that, and it is a very fine aspiration, but I am reminded of a comment by Colin McKay, who was a sheriff in Oban and who is now Lord McKay. After a very elaborate and flamboyant defence had been put to him, he said, “Very interesting, but let us see what the law says.” Ultimately, we deal with what the law says and not with intentions or what people want to happen. If you want something to happen, you will have to write it in precisely, and then we on the ground will carry out your wishes. Intentions and what you hope will happen are not considered in a court of law; I have been in enough of them to know that.

10:45  



Mark Ruskell

I am not entirely sure that I understand your point about wild animals. Is it not clear what a wild animal is because of its species? If that is the case, why would a vet need to step in to help with the definition? Either something is a domesticated species or it is not—unless, of course, you accept the argument that, over many generations, it could become domesticated.

David Kerr

I would not for a minute dispute Dr McKeegan’s expertise in that regard, but when I started out shepherding in the Cheviot hills many decades ago, farms had cattle, sheep, pigs, poultry and horses; now, they might well have camelids and ostriches—I believe that there are even crocodile farms in the south. It is an elastic definition, because what is normally domesticated can change. The most extreme example of that is in the far east, where there are Chinese-medicine tiger farms. The definition needs to be thought out, because what we have on farms nowadays has changed out of all recognition even from when I was a shepherd some years ago.

The Convener

If we agree that the aim of the bill is a goal that we want to achieve, what would be the best way to achieve it? Would it be to amend the bill to address some of your concerns, or could a different approach be taken to get us to where we want to be?

David Kerr

I believe that Dr McKeegan pointed the way. The Dorning report is very good, and I think that the emphasis should be heavily on welfare. If the approach is based on welfare, we can draw in the Animal Health and Welfare (Scotland) Act 2006, which is a highly effective piece of legislation that offers totally different support.

I believe that the choice to use ethical reasoning is perfectly understandable, and Dr McKeegan offered a sound defence of it, but welfare is much easier for us to prove, with skilled veterinary assistance. If I were drafting the legislation, I would lean on the welfare side of things, which I think is much more to the point. Dr McKeegan is absolutely right—the five freedoms underpin all animal health and welfare legislation in the UK, and they have been taken on strongly by the Scottish Parliament, so we have a good grounding.

Andrew Mitchell

I would not disagree with what my colleague has said. In fact, I would go further: from local government’s perspective, a piecemeal approach being taken is not helpful. If the Scottish Government wants to improve how we deal with performing animals across the piece by regulating or banning the practice, that should be done in one piece of legislation. It is not helpful to have some elements of the issue dealt with by a relatively modern piece of legislation and to have to fall back on—if the definition in that legislation is not met—the Performing Animals (Regulation) Act 1925, which is well past its useful purpose. My suggestion is that the subject should be looked at in its entirety.

Angus MacDonald

We know that schedule 1 to the bill makes provision for local authorities or the Scottish ministers to appoint inspectors for the purpose of enforcement. Ultimately, local authority inspectors will be accountable to their own local authorities.

You have mentioned some areas in which the bill is lacking; according to Mr Kerr, enforcement will be “blurred” and “shaky”. Do you have any further concerns about the proposed enforcement approach?

Andrew Mitchell

The definition of “circus operator” seems to be quite remote from the reality. I think that it would be helpful if the definition said that the person who is in day-to-day control of what appears to be a circus would be liable.

Generally speaking, the powers in the bill are quite different from most environmental health and trading standards powers—principally, in respect of the need to obtain a warrant. The bill says that if obtaining a warrant is not reasonable, it is possible just to carry on. Other legislation does not have that caveat.

I am particularly interested in the power to obtain records, which is one of the most important tools when it comes to proving an offence and enforcing legislation. We need to be able to ask for records from the operator to prove what animals they have, where they have come from and what the business is. The fact that a warrant would normally have to be sought would make enforcement more difficult. I urge the committee to look at moving that power into the group of powers that officers can use if they have reasonable cause to suspect or believe that an offence has taken place.

Again, I make the point that there is no immediate power to stop such events happening, even if we detect an offence. It is entirely possible that we could investigate and report a matter to the procurator fiscal, yet the circus would continue to operate.

Angus MacDonald

Mr Kerr, do you have anything to add?

David Kerr

I fully support those remarks. Perhaps we should be looking at a full suite of enforcement powers, which is something that we have been working towards in relation to other animal welfare legislation. Fixed penalty notices are one possibility, and another is the power to serve notice, which buys time and is very effective. Environmental health officers use it routinely for dealing with situations in which we think that there is an on-going hazard or something like that.

Serving notice simplifies the legal procedure. If somebody breaches the notice, that is an offence, which means that the burden of proof is much more clearly defined. The power to serve notice would allow us to act proactively and to prevent a person from committing the offence. If somebody reported a circus that was travelling and had wild animals that could be performing, we could go to the circus and say, “That cannot happen. You can carry on with the rest of your business, but you’re not doing that.” The circus could challenge that in a court, but we would have actually taken action to stop something that everybody who contributed to the bill clearly feels is wrong.

At the same time, we can stop criminalising people and take a graded enforcement approach. It is possible that a person could slip up and innocently think that they are not breaching the legislation. If we become aware of such a person operating in breach of the legislation, we would serve notice and they would comply. As my colleague said, as things stand, our only recourse currently would be to take the person to court. I do not know whether any of you have been involved in court cases recently, but the courts are heavily clogged up. Taking a case to court is not a quick process; a circus that is not based in the United Kingdom could complete its entire tour and be back on mainland Europe before the case got anywhere near a court.

The Convener

How could someone unwittingly breach the legislation? It would be pretty obvious what they were doing, would it not?

David Kerr

We may think so, but a circus operator who is not from the UK could have linguistic problems and could fail to understand the legislation. I cannot speculate as to why they would not understand it. When you deal with science and law, it is best to prove that something is wrong or can be wrong. I can see what somebody’s action is, but I cannot guess what is in their mind, and it is not my business to do so, as an enforcer.

I agree that if an established UK-based circus arrived with animals that were going to perform, we would have to be very doubtful about the innocence of the person who was responsible for that, but everyone is innocent until they are proved guilty.

The Convener

The idea that someone would unwittingly breach the legislation by bringing a circus here from elsewhere in Europe when they were aware that we had legislation of this type seems to be a bit unlikely, does it not?

Richard Lyle

It seems to be unlikely, but I have met a lot of unlikely things in my time.

Angus MacDonald

Assuming that a fixed penalty is introduced when the act comes into force, there is a provision in schedule 1 for someone who commits an offence under section 1 to be liable to a maximum fine “not exceeding level 5”, which is currently £5,000. Do you have any views on that maximum fine level?

David Kerr

It is appropriate in similar legislation. Would you agree, Andrew?

Andrew Mitchell

The penalty is certainly similar to what is in existing legislation. However, someone who has a large tent that holds 500 people who pay £10 a ticket will already have made that amount. In the economics of operating such things, a person could quite quickly generate more income than would be needed to pay the fine.

The Convener

Do you want the fine to be increased?

David Kerr

Like my colleague, I would prefer there to be a power to prevent the offence from being committed because the criminal courts should be the last resort.

Angus MacDonald

Bear it in mind that it could be deemed that a particular travelling circus has more than one operator.

You touched on the fact that there will be resource implications for local authorities in enforcing the legislation. For example, you have already mentioned the possibility that you may need to engage a vet. Do you have concerns about the overall resource implications?

Andrew Mitchell

I will just make some general points. I cannot imagine enforcing the act without the involvement of a vet to give evidence. The bill comes in a context of diminishing resources for local authorities. I entirely agree with my colleague that there is no statutory duty to enforce the act on local authorities; it would be discretionary. Each local authority would have to balance existing resources against the new duty.

I will give a practical example from my environmental health teams, which ensure standards. Because no new resources come with the bill, I would probably have to take somebody away from food health and safety or from consumer protection in order to investigate a case.

Angus MacDonald

Okay. I presume that the situation would be similar in Argyll and Bute.

David Kerr

I think that it would be similar. On the face of it, on the evidence that has been presented to us in the course of developing the legislation, it is very unlikely that we will be dealing with conventional circuses; I do not think that such travelling circuses have visited Scotland in the past two years, or possibly longer. We are more likely to get problems when something that is deemed to be circus-like becomes the subject of the legislation. That would consume significant resources and time.

The Convener

Gentlemen, thank you very much for your time this morning. You have certainly provided a useful perspective on our deliberations. If we have any further questions, we will write to you.

I suspend the meeting: we will observe a minute’s silence during the suspension.

10:56 Meeting suspended.  



11:01 On resuming—  



The Convener

Welcome back. We will now hear evidence from our third panel on the Wild Animals in Travelling Circuses (Scotland) Bill. We are joined by Anthony Beckwith, the proprietor of An Evening With Lions and Tigers; Rona Brown, the Government liaison officer for the Circus Guild of Great Britain, on behalf of Peter Jolly’s circus and the European Circus Association; Martin Burton, the chairman of the Association of Circus Proprietors of Great Britain; and Carol MacManus, an animal trainer with Circus Mondao. Good morning to you all.

Emma Harper

I want to talk again about the consultation. A lot of evidence was submitted to the Scottish Government’s consultation but, since it, the Welsh Government has published a study, the Dorning review, which states:

“The available scientific evidence indicates that captive wild animals in circuses and other travelling animal shows do not achieve their optimal welfare requirements, as set out under the Animal Welfare Act 2006, and the evidence would therefore support a ban on using wild animals in travelling circuses and mobile zoos on animal welfare grounds.”

What are panel members’ views on the rationale that the Scottish Government has set out for banning the use of wild animals, which is based on ethical rather than welfare issues? What are your views on the purpose and the policy objective of the bill?

Anthony Beckwith (An Evening with Lions and Tigers)

The scientific data that is available that has involved first-hand studies of circus animals has come out to the contrary: it shows that circuses can and do provide a level of welfare that is equal to that in any other captive environment and, in some cases, is better. Stress and anxiety levels tend to be lower in circus animals due to the additional mental stimuli that are available to them.

The studies go back over the past 30 years—the most recent one was in 2011 and the earliest one was in the late 1980s—and the results have all been quite consistent. They were first-hand studies involving scientific data collection, cortisol tests to test stress levels in animals and monitoring of animals while travelling and in training. They were done across Europe, in the United Kingdom and in America and all the results have been consistent with the fact that the welfare of animals in circuses is not compromised.

The Convener

I should be clear that panel members do not have to answer every question if they do not feel that they have a locus. Rona Brown wants to come in next.

Rona Brown (Circus Guild of Great Britain)

Could you indulge me and turn the sound up a bit, please?

The Convener

Absolutely. We have had difficulty with that this morning.

Rona Brown

Or if not, people could speak a bit louder.

The Convener

I think that turning up the sound will benefit us all, to be honest. Do you wish to respond to Emma Harper’s question?

Rona Brown

Yes. I am concerned about what you are now calling the Dorning report but which is actually the Harris et al report. Back in 2014, it was dismissed by the British Government as a collection of other people’s views. Professor Harris then put it together again with Jo Dorning and the other lady whose name I forget; and he is now trawling it all over Europe and the circuses there, but it is having no more impact than it had back in 2014. In fact, the reason why a lot of the stuff that is quoted relates to ethics is that everyone has gone through and exhausted the animal welfare issue and cannot prove anything one way or the other.

Let us not beat around the bush: there have been and there are hiccups with animals in circuses, but the current view of most people—scientists and, I have to say, the English Government—is that there are no welfare issues concerning wild animals in circuses in the UK. That is in circuses as they stand now, not as they stood 50 or even 20 years ago. What I find unethical—if you like—is the use of things such as the Harris report and what other people are saying about the welfare or ethics being wrong. I would bet that not one of you around this table has ever been to the two circuses that are licensed, to see things for yourselves—and neither has Professor Harris or Jo Dorning. They just do not want to see the truth.

The Convener

With respect, these are all views: they have expressed a view, and you are expressing your view. The problem, though, is that they are opinions, and what we have to try to do is to get beyond them and look at the facts, as far as we can ascertain them.

Anthony Beckwith

Professor Harris’s report was actually a literature review and a scientific opinion of other people’s studies, as I have previously said. The authors of the original studies have joined me in launching with Bristol university a complaint against Professor Harris for research misconduct. Indeed, Professor Ted Friend of Texas university believes that his work was misrepresented by Professor Harris.

Moreover, in areas other than circuses, Professor Harris has presented some complications with regard to animal welfare issues. For example, he was the impartial witness in fox hunting cases; unfortunately, legal action was taken against him and he was proven not to be impartial but to be affiliated with animal rights groups. There is a fundamental difference between animal welfare and animal rights, and he is no longer considered an impartial witness in fox hunting or other hunting cases.

The Convener

People obviously have opinions about that particular review, but that is not what we are looking at today. I need to move things on and focus on what we are here to do.

Does anyone want to come in on the original question?

Martin Burton (Association of Circus Proprietors of Great Britain)

Would you repeat the original question, please?

The Convener

Essentially, my colleague was asking for your views on the Scottish Government’s rationale for banning the use of wild animals in travelling circuses in Scotland. If no one wishes to respond, I will move on.

Claudia Beamish

If I picked her up right, Rona Brown said that the current view of welfare issues in circuses is different from that highlighted in evidence. Briefly, will you point us in the direction of those current views so that we can take a careful look at them?

Rona Brown

The witnesses who can provide the main evidence of good animal welfare in travelling circuses are the veterinarians who belong to the Department for Environment, Food and Rural Affairs. The four inspectors are independent vets and inspect the licensed circuses three times a year. The circuses also need to undergo four other inspections by their own lead vet, and if he cannot do it, he has to nominate somebody else. Their reports are the evidence that there is no problem. Yes, there are hiccups—bits and pieces—and circuses receive accusations, as Jolly’s did when its ankole cow died. The cow was 32 years old and had long outlived zoo ankoles, but people said that it died because of bad welfare. That is just not fair and was not true.

Claudia Beamish

Thank you. It is helpful to get that point clarified.

Richard Lyle

In case anyone missed it earlier, I refer people to my entry in the register of members’ interests: I am the convener of the cross-party group on the Scottish Showmen’s Guild, and an honorary member of the Showmen’s Guild’s Scottish section.

The panel might have heard my questions to the council officials. I was a councillor for 36 years and found that the council sometimes misinterpreted the law. What are your views on the scope of the bill? Does it make sense to you, in what it covers and does not cover? Let me put that question to Mr Beckwith first, because he has said that he thinks that his animals would not be covered by the bill.

Anthony Beckwith

Exactly. Under the definition in the bill, my show is not a circus.

Richard Lyle

What is your show?

Anthony Beckwith

It is called “An Evening with Lions and Tigers”, and it is a travelling educational animal training display, which features lions and tigers. There are no clowns, acrobats, trapeze artists, ring masters or flashing lights. It is zoo-type entertainment; people wear safari outfits and operate inside a jungle-themed tent. We talk about welfare and conservation, we do training displays with the big cats, we talk about the training methods that are used in film, television and circus, and we have questions and answers at the end. The show travels around in a big top, and there are big cats, but there is no circus involved.

The Convener

I understand that you are in the process of applying for a circus licence in England. If you are successful in securing such a licence, will not that bring you within the scope of the bill?

Anthony Beckwith

The definition in the bill is different from the Department for Environment, Food and Rural Affairs definition. There was some confusion about whether we needed a licence from DEFRA; we could not get an answer, so we opted to go with this approach. We operate in a similar way to a travelling reptile or bird of prey show. A bird of prey in a circus is covered by circus licensing, but a stand-alone bird of prey show does not come under the regulations. Given the sensitivity around our being the only people who travel the United Kingdom with big cats, we volunteered to opt into the licensing system, to create transparency and to give us a level of credibility.

The Convener

Do you get my point, though? If you secure a circus licence in England, it could be argued that you will fall within the scope of the bill.

Anthony Beckwith

It could, but that is open to interpretation. The definition that is being used for the purposes of the bill, according to Andrew Voas, is the “Oxford English Dictionary” one, which defines a circus as a variety performance featuring acrobats, clowns and animals. That is not what our show is, by any means—there is none of that. There is no variety; it is purely big cats in an animal training display. It is like a sea lion show at the zoo or a bird of prey show, but with big cats.

The Convener

I just wanted to explore the issue. I will bring in the other witnesses to respond to Richard Lyle’s question.

Richard Lyle

Mr Beckwith, you said in your submission:

“there was no clear definition of what constitutes as travelling circus by the definition set out by Andrew Voas, the Scottish government’s Veterinary Adviser ... our show does not fall under this definition of a travelling circus and Andrew was unable to clarify if my show would even be banned under this legislation and we may be able to tour Scotland with our big cats freely.”

Anthony Beckwith

Given what my show is, I asked Andrew Voas to clarify whether it would be covered under the definition, and he responded, “I don’t know.”

Richard Lyle

He responded, “I don’t know.”

Anthony Beckwith

Yes.

Richard Lyle

Let me put a question to Rona Brown and Martin Burton. When was the last time that we had a travelling circus with wild animals in Scotland?

Martin Burton

There has not been a travelling circus with wild animals in Scotland for a very long time, which leads us to ask why the Government is bothering to do this. The circuses that come to Scotland are fairly well known; the same group of circuses comes to Scotland every summer, and none of them has wild animals.

Richard Lyle

I have seen notices for travelling circuses in Edinburgh, and there has been a circus at Hamilton racecourse in my constituency. As I remember from seeing the travelling circus when I was younger—

Martin Burton

No circuses with wild animals have visited Scotland in recent times.

11:15  



Richard Lyle

Rona Brown was correct before—I have not been at a circus recently, so I apologise.

What do the circuses that now come to Scotland have in them? Are there acrobats and clowns? Is it a bit of laugh—a bit of fun?

Martin Burton

Zippos Circus has horses and sometimes dogs. Last year, it had domestic cats. All the animals are domestic animals—there are no wild animals in circuses that have visited Scotland in recent times.

Richard Lyle

I have a question that I did not get to ask the witnesses from local authorities. Would you class a llama or a reindeer as a wild animal?

Martin Burton

That is not for me to answer.

Carol MacManus (Circus Mondao)

A llama is domesticated—that has been the case since 2007 or 2009, if I am correct.

Richard Lyle

What about a reindeer?

Carol MacManus

Some reindeer are domesticated and some are not. The Dangerous Wild Animals Act 1976 is very vague on that.

Richard Lyle

I will finish on this point. If someone turned up at a shopping centre or a local summer fete or show with a couple of reindeer, would that be covered under the bill? Would they be breaking the law?

Carol MacManus

I do not know.

Rona Brown

Both licensed circuses have reindeer, which are licensed to work on the circus under the regulations in England. However, during the winter months, reindeer work as Father Christmas’s reindeer in places all around their home town. We inform DEFRA about where the reindeer are going to go, how long they will be there, what their transport is and who the vet is—everything—and DEFRA comes back to us and says that it is okay. When the animals are safely back on the circus’s home ground, we tell DEFRA that they are home again. That is how it works in England. DEFRA, quite rightly, did not want to kill Father Christmas.

Richard Lyle

I point out that the laws in England that cover show guilds or whatever are different in Scotland. We have the 1982 act, which does not apply in England, to cover those aspects. Am I correct in saying that?

Rona Brown

Yes.

Richard Lyle

Thank you.

Rona Brown

I was telling you what happens because I, along with Jolly’s circus and the European Circus Association, feel that there should be provision for that in the Scottish bill so that circus people can take their reindeer out in Scotland. If you are intent on going for it hell-for-leather and imposing a ban, circus people should still be able to take their reindeer out at Christmas time.

The Convener

I would like to have something clarified. Martin Burton said that the two circuses that are currently based in England do not have wild animals—

Martin Burton

I did not talk about two circuses that are based in England; there are two circuses that have wild animals—

The Convener

But they do not come to Scotland.

Martin Burton

They do not turn up in Scotland.

The Convener

I am glad that you have clarified that.

Are you aware of any plans to introduce additional circuses that might come to Scotland? Are there any examples of circuses that are based in mainland Europe that could potentially come to Scotland with wild animals?

Martin Burton

I am not aware of any circuses in Great Britain that intend to come to Scotland with wild animals. Certainly, none of the members of the Association of Circus Proprietors intend to come to Scotland with wild animals. I am not aware of any circuses from mainland Europe that would come to Britain at all with any form of animal, wild or domestic.

The Convener

Okay—that is fine. I just wanted some clarification on that.

Rona Brown

The two circuses that are licensed in England would very much like to come to Scotland but they have mostly hooved stock and the distance between their home towns and Scotland is more than they are prepared to put their animals through. Since Jolly’s circus went out after Christmas, the furthest it has travelled is 27 miles—they hop 10 miles, 5 miles, 21 miles and so on. To come to Scotland would mean overnights and stopping and getting a vet when they are here, and they would also have to go through the process of applying for a licence up here. That is why Jolly’s circus does not come to Scotland, although it would very much like to.

Finlay Carson

This is a question for Carol MacManus about the definition of a wild animal. Do you believe that the definition is open to challenge in its interpretation given the change in behaviour and life cycle that some animals would undergo to become domesticated for their role in the circus?

Carol MacManus

Two of the animals that I have licensed are domesticated in their own countries. Only the zebra would be considered not to be domesticated, and the zebras that I had in the past were probably more domesticated than the free-range cockerel that we have in the circus, which will attack you. Both my zebras were as sweet as anything. They wandered around freely and anybody could pet them. They never showed any malice, kicked or bit in their lives. One lived to the age of 32 and the other to 26.

What is domesticated and what is wild? My cockerel is wilder than my zebras were. I searched the internet last night, and dromedary and Bactrian camels both came up as domesticated.

Finlay Carson

For the record, do you believe that there could be a legal challenge to the bill’s definition of a wild animal?

Carol MacManus

Yes.

Anthony Beckwith

I might be able to help with a bit of clarification, as there seems to be a lot of confusion about what is wild and what is not.

Taxonomy is the scientific classification of all living things, and that does not change. Every animal falls into a category and, however we perceive it, that category does not change.

As Carol MacManus said, some camels are domesticated. You have to look at the animals’ Latin names. There are three different species of camel, two of which are completely domesticated.

There are four classifications: wild, domesticated, semi-domesticated and feral. Every species falls into one of those categories. A species of the Asian and Indian elephants also falls into the semi-domesticated category, but an African elephant is completely wild.

Among the camels, Camelus dromedarius is domesticated but Camelus ferus is wild, and they are different species. They fall into a category. People might perceive them as being wild or use them as domesticated animals in different countries but they are globally and scientifically either wild, domesticated, feral or semi-domesticated. That cannot change.

To get down to what would be a legal definition, we would probably go to the taxonomy and whether the species is domesticated—whether or not it is perceived as being domesticated. For example, some animals that are perceived as wild in this country but are domesticated are zebu, water buffalo, yak and camels, and the semi-domesticated ones are elephants, rhea, bison and emu.

If we are going to look at what it is wild and what is domesticated, we need to look at the taxonomy rather than what people think or believe.

Claudia Beamish

I appreciate that you have expressed concern about the ban per se. Has anyone on the panel any suggestions of alternative approaches that could enable the issues that the Scottish Government is seeking to address to be tackled effectively?

Martin Burton

The interesting thing about Scotland—I speak as a man who operates circuses with domestic animals in Scotland—is that it already has the most robust regulatory regime anywhere in the UK. Scotland’s public entertainment licensing is not mirrored in England or Wales, and it ensures very firmly the welfare of the domestic animals that I bring here as well as the safety of the equipment that the public will use—the seats, the tents and the infrastructure.

Given that Scotland’s public entertainment licensing system is, in many respects, ahead of that in the rest of the UK, I am surprised that the Scottish Government feels the need to step into an area that a number of witnesses have told the committee is full of traps. Where will this end? Will this end with no more displays in zoos? Will it end with no more displays at agricultural shows and no more falconry displays? Will it end with no more ownership of animals?

Emma Harper mentioned slavery and emancipation. We all understand that there was a time in the history of the world when certain people were enslaved and needed to be emancipated. The question is: do animals require the same emancipation? Members must think about the issue and decide whether we give animals the same rights as human beings and emancipate them, or whether we take the view that man has dominion over the animals and that we must care for them but not necessarily enshrine their rights.

That brings us to the fundamental issue of animal welfare versus animal rights. I understand the animal rights argument to be that an animal can suffer, so it should not be kept in a field or a house and should not be owned. It can walk across the road and get run down, but it is free. I am an animal welfarist, so I think that an animal should be protected from traffic on the road and from abuse. That protection may mean that I have to keep the animal in a corral, a paddock or a stable and that it is not free. The question is: are you emancipating animals and giving them freedom but taking away from them the welfare that I believe it is our duty to give them?

Claudia Beamish

Thank you for that helpful contribution. Do you have any comment specifically on the travelling aspect? I will then go on to address other points.

Martin Burton

Rona Brown can give you better evidence on that than I can. There is no evidence that animals suffer stress while travelling in a circus any more than they do anywhere else. I will tell you what we do with our horses. Like the other circuses with animals, we do not travel vast distances—we try to keep the travel times to under eight hours. The horses will be the last thing to be loaded, the first thing off the field and the first thing unloaded, fed and watered. They have had heart rate monitors fitted while travelling and there is clearly no stress. We have also observed them when we load and unload them, and there is no stress. There is no difference between moving a horse around Scotland and moving a horse from one racetrack to another.

11:30  



Claudia Beamish

What differences are there between the public entertainment licences in Scotland and those in England? You highlighted that the requirements are more rigorous in Scotland than they are in England.

Martin Burton

There is no such licence in England—that is the difference.

Claudia Beamish

I thought that there was a UK-wide licensing system.

Martin Burton

That is a completely different matter.

Claudia Beamish

Will you set out what the differences are, please?

Martin Burton

Public entertainment licensing in Scotland regulates every aspect of my bringing a circus to Scotland. In England, there is a licensing system for wild animals, which I am not part of. Carol MacManus can tell you more about that because she is part of that system.

The licensing system ensures that the animals are well cared for, and the evidence of that is clear for all to see from constant veterinary checks and reporting back that the animals are always in good condition.

Claudia Beamish

Does Carol MacManus have any comments on that? Do the panelists have suggestions for alternatives to the legislation? That was the initial question.

Carol MacManus

I have a large folder here, and it is thick with the checks that DEFRA has carried out since we started the licensing scheme in 2013. It includes the vet inspection reports from the spot checks that we get. Each year, we have four veterinary inspections by local veterinary officers—they are all lead veterinary inspectors—and three inspections by veterinary officers who are delegated by and working for DEFRA.

This is only one of the folders—each animal has its own folder. Whether or not we are travelling, we must keep a check on everything, including how much water and hay are being used. However, the only thing that has changed is the paperwork, because we were doing all that before anyway.

The Convener

Mr Beckwith, in your written evidence, you say that

“every single manoeuvre or ‘trick’ actioned by our animals is a completely natural movement that their distant wild cousins would carry out”.

I put it to you that sitting on a stool, following commands from a human being, is not what a wild animal would naturally and instinctively do.

Anthony Beckwith

You are referring to the instruction, not the action. The action of sitting up is a completely natural manoeuvre—there is nothing unnatural about that.

One of the arguments against performing animals is that the tricks that they perform are unnatural and can physically harm the animals, but every action that they perform—running, jumping, lying down, rolling over and sitting up—is a natural behaviour that would be imitated in the wild. The difference is that the trainer teaches the animal to carry out that action on command. That is what is different; the action is still natural.

Claudia Beamish

Do the two other panel members—Mr Beckwith and Ms Brown—have any comments to make about what an effective alternative to the proposed legislation might be? I appreciate that you are arguing that there should not be a ban.

Anthony Beckwith

A lot of the ethical concerns that have been raised are welfare concerns. The science and the evidence from Westminster show that the licensing system protects the animals’ welfare, which in turn protects the ethics, because you cannot keep an animal ethically without providing good welfare and you cannot provide good welfare without good ethics; they are two sides of the same coin.

Ethics are covered in the licensing system in England, which protects both the animals and the public interest. Even if the public do not like to see animals perform because that is not to their personal taste, when a licensing system is in place they can rest safe in the knowledge that the animals are being well looked after and well protected. Those who continue to enjoy circuses—which many do—are free to attend performances, and people like me are free to continue to run our business. The licensing system is the only ethical approach to adopt.

There would be ethical concerns were a ban to be introduced. Mexico is the best example of that. There was such overwhelming suffering among circus animals when the ban was introduced there that the courts ended up overturning the ban and replacing it with the system of regulation that is now in place.

Rona Brown

We are not ethicists and we are not philosophers. However, we know right from wrong, and that is basically what it boils down to with ethics.

I want to talk about Jolly’s circus for a moment, because it is about not just what the Jollys do with their animals but how they treat their family and their staff, how they work out the moves and where to go next without causing stress for the animals, how they run their lives and how they bring up their children and treat their grandchildren. All of that involves a huge circle of ethics, and inside that is how the Jollys treat their animals. I do not think that we can separate one from the other. Bad people will beat their kids and their animals—they will probably beat their wives, go to the pub and so on; they are nasty all round.

The two circuses that are licensed are both family businesses. Peter Jolly’s circus has been operating for 46 years and Peter’s wife, Carol, comes from a long line of circus people. Peter and Carol have four children, who all work with the circus, and the children all have little children—the older ones work in the circus in the afternoon. A roving tutor comes to the circus to teach the children although, when they are at winter quarters, the children go to the local school. The roving tutor works with the local school to make sure that they keep to the curriculum. That is all about ethics—what is right and wrong—and at the centre of all that are the Jollys’ beloved animals. That is what they live for; that is what they do.

What we are all really worried about—it affects us all—is that the bill will have a domino effect. If there is a ban up here, Wales will ban. If Wales bans, Northern Ireland will ban and then England will ban. That will be grossly unfair on the people who are doing things correctly, keeping up ethical standards and looking after their families.

It is important that the committee understands that the circuses that have wild animals in the UK are not huge affairs but small affairs. You can go with your granddad or your grandmother, with all your kids and with your aunties and uncles. There are no rude jokes, there is no bare flesh and there are no nasty remarks. It is just family entertainment where people can go and have fun.

What is wrong with entertainment? Why can we not have animals as part of entertainment if they are being looked after properly, they have been inspected and everything is right?

The Convener

I want to follow that up with Anthony Beckwith, because there was some controversy about your cats when they were wintered in Fraserburgh over the winter of 2014-15. In your submission you talk about the circumstances that led to members of the public seeing the cats. Will you talk from an ethical and animal welfare point of view about the conditions in which the cats are kept when they are winter quartered, whether in Fraserburgh or anywhere else?

Anthony Beckwith

We have just finished building brand new enclosures, so things have changed recently in Scotland. The enclosures are covered by strict regulations. Although we are not covered by a circus licence, we are covered under the Dangerous Wild Animals Act 1976, which involves vet inspections, so there must be enrichment, for example. As with a zoo enclosure, our enclosures must be diverse. We do not keep cats in a lorry on the back of a truck, as is often wrongly suggested. We have a truck that makes up a sleeping den, and there is a large built-up enclosure off it, which has platforms, a swimming pool, logs, ropes and that kind of thing. The animals have access to the indoor and outdoor areas, except in severe weather, when they are locked indoors—the same as in the zoo.

The enclosures are adaptable and portable, so that wherever we go the cats can have the full enclosure, and we always have the facility to make an enclosure bigger if required. We now have two separate enclosures—one for the lions and one for the tigers—which have all the same enrichment, including scratching poles and platforms for climbing. Those are the conditions up in Scotland, and they were checked three times by vets during our stay in Scotland, as part of the DWA licensing.

The Convener

Are the enclosures comparable in size to those at Edinburgh zoo or other such facilities?

Anthony Beckwith

It depends on the zoo. I have been to some zoos, such as the Welsh Mountain zoo, where the enclosures are a pretty similar size to ours. In general, enclosures are smaller than those in a zoo, but scientific studies show that size is not the main factor in welfare; it is more about complexity and enrichment. An animal could have a huge enclosure, but if it has no mental stimulation it will become bored and start showing stereotypical behaviours.

Because our enclosure moves all the time, the animals always have new surroundings and terrain, and because they are learning, their mental stimulation is a lot higher. They go from their enclosure into the tent, so they are always in different areas. They still have enough room to run around without hurting themselves. They can run without bashing into anything and they can chase each other, as lions often do, and they can roll around. There is plenty of room for exercise. DEFRA has set out a standard for the minimum size to meet welfare needs, and we surpass that by more than double for each animal.

Angus MacDonald

I turn to enforcement. You will all be aware of section 4, under which individuals will be held responsible when an organisation commits an offence, and you will be aware that more than one person could be deemed to be the operator. You will also be aware of the proposal to have local authority inspectors to enforce the legislation, which we covered with the previous panel. I am keen to hear your views on the proposed enforcement approach. Is the bill clear on what constitutes an offence?

Rona Brown

The bill has to be clear on what constitutes an offence. However, there should be provision whereby you do not ban all circuses in order to deal with some bad circuses. There should be provision whereby circuses are allowed to keep wild animals and travel in Scotland, and the bill should set out what would cause an offence. Therefore, it needs to be written into the bill that people can do certain things and cannot do other things, as with the UK regulations. You could add more provisions.

We helped the Welsh Government to put together its approach to mobile animal exhibits. It wanted to do some test inspections to see how those would work out, so I went to Wales to help with the paperwork. We then allowed officials to come and inspect the two circuses that are licensed. They went to Carol MacManus’s Circus Mondao and to Peter Jolly’s Circus. If you wish, I can send you the reports of those inspections.

It is strange: this is about how things are perceived. Part of what Andrew Voas said to the committee is about how the issue is perceived. When the Welsh first came to me and asked whether I would help them, they said that they wanted to start with circuses because they thought that those would be the most difficult—they had heard that circus people are difficult. I agreed to arrange it all and said, “You don’t have to tell us when you’re coming; just tell us the night before. Whatever you want to do, just come.” After they had done the inspection, we all sat down and they said that they had thought that circuses were going to be difficult and that they were going to find horrendous things that they would not like and which they had heard that circuses do. Andrew Voas talked about beating the animals and dressing them up. Who in this day and age dresses up circus animals? Nobody—it just does not happen.

The bill has to have provision on what is an offence and who commits it, but there must be a provision in it to allow, on a case-by-case basis, circuses with wild animals to travel in Scotland.

Anthony Beckwith

The bill is very unclear. For example, there are four directors involved with running my show—me, Marilyn Chipperfield, Tommy Chipperfield and Thomas Chipperfield. The animals actually belong to Thomas. If our show came to Scotland, who would be liable under the offence? Would it be me, as one of the directors, or would it be all four of us? Would it be Thomas, because he owns the animals? It is not clear.

11:45  



Rona Brown

In the English licensing system, the person who owns the licence is responsible. That could be the circus operator or the person who owns the circus, or it could be delegated to a director or whoever. However, if the man or woman who owns the licence is not there on the ground when the offence is committed, it is the person in charge who has committed the offence, because they have allowed it to be committed.

Angus MacDonald

There are proposals in the bill that either individuals or organisations could be held criminally liable for an offence under the proposed legislation. Do you have a view on that?

Rona Brown

That is probably the right way to go about it. If a person is left in charge of two camels and four zebras and does not stop somebody else from beating the animals or stop some other dreadful thing happening, they should go to prison because they were in charge.

As for associations, I do not know—associations do not travel with the circuses.

Martin Burton

It is very important to remember that most circus acts, whether animal or human, are self-employed contractors. As a circus director, I do not employ any of those people and there is a good reason why I do not. I would not tell a trapeze artist how to swing on her trapeze, because, if I did and she subsequently fell, it would be my fault. She might come to me at the start of the season and say, “This is my act. Do you want to engage it: yes or no?” If I say yes, she is responsible for her own equipment and her own act.

The same applies with animal trainers. If I were to book an animal act and the trainers subsequently abused the animals, the only recourse I would have would be to dismiss them. I would not have the opportunity to say that I was not happy with the way that the animal trainers work. I have to be careful in the first instance about whom I chose to engage but, ultimately, I cannot say, “Don’t do that”. I can only say, “Go away”.

Angus MacDonald

So, just for clarification, in your view would it be the self-employed person and nobody else who would be criminally liable?

Martin Burton

No, that is not my view, because, as the director, I have a bigger responsibility. I am simply pointing out to you that if abuse were to happen, it would start with the trainer and the owner of the animals, not with the director.

Angus MacDonald

There is also the issue of the £5,000 maximum fine. Do you have any views on that?

Martin Burton

I laughed when the people from the local authorities seemed to think that we can happily afford that because we all have 500 seats and charge £10 for them. You would very quickly close a circus if you were to fine it £5,000 once or twice.

Anthony Beckwith

We seat 200 people and charge £8.

Martin Burton

I seat 1,000 people and charge £15, but I would still close down very quickly if you fined me £5,000.

Emma Harper

I want to go back to wild animals. You are talking about herbivores versus carnivores, and herbivores are more easily domesticated. Are we really worried about big cats because they are carnivores? Are you suggesting that they are domesticated? I have seen video evidence in which the lions seem to be a bit perturbed and unwilling to participate. If you engage in training or taming them, do you use positive or negative reinforcement to engage them in a behaviour that you want them to engage in?

Martin Burton

Anthony Beckwith is best qualified to answer your question. I have a question, though. Do you know when that video evidence was filmed? Things have changed. I was part of Mike Radford’s review for the UK Government and we refused to accept video evidence. What we often see, and what we have seen as part of the committee’s process, is talk of dressing up animals, which certainly used to happen. People used to goad lions with wooden chairs, and there would be cracking of whips and the lion would smash the chair to bits. We also used to put children up chimneys to clean them. The world has moved on.

I visit circuses two or three times a week and I cannot tell you the last time I saw an animal dressed up. Forty years ago, people would put a poodle in a dress and even get it to push a pram, but that is not what happens now. We must not forget that the public pay good money to see a circus and they choose not to see that sort of thing. They choose not to see an animal act in which the animal is annoyed; nowadays, instead of a male with a ripped shirt cracking a whip at a lion, they would rather see a female cuddling and kissing the lion. I am afraid that many people do not understand, when they look at video evidence from films that were made 40 or 50 years ago, that we have moved on.

Emma Harper

I do not think that the evidence was from 40 or 50 years ago, but I accept the point that some of the evidence that might be on YouTube—

Martin Burton

The caveat is that I am talking about English training. There are still parts of the world where not everybody has moved into the 21st century.

Anthony Beckwith

As I mentioned earlier, our show is about education. It is a training display in which we demonstrate the training methods that are used. Emma Harper talked about negative and positive reinforcement. Those words are often misused. People think that negative reinforcement is something bad—for example scolding or hitting an animal—and that positive reinforcement is about praising and rewarding it, but that is not the case. In optimum conditions, positive and negative reinforcement mean the addition and removal of stimuli. Offering an animal a reward or stimulus is positive reinforcement, and taking it away is negative reinforcement.

There is also positive and negative punishment. Positive punishment would be abuse of an animal, and hitting it and scolding it, which we do not do. We use the addition and removal of praise and reward.

We have filmed all our training and it is available on our Facebook page, so you can see how it is done. No whips, chairs or pistols are involved, as there would have been in the old days. We use bamboo garden canes with bits of horse or chicken meat on the end, and the animals are encouraged to follow the sticks. They are not chased—we do not run after the animals. We get the animals to follow us. To get a big cat to lie down, we put a stick in front of it and pull it across the floor. Just like a house cat would, it goes after the stick. We then get another stick and give it a bit of meat. It is the same when we get them to jump. It is always about encouraging the animals to follow us; there is no fear or dominance involved. It is a working relationship. As Martin Burton said, the approach is not to fight the animal or have a stand-off with it. Part of our act includes the male lion licking Thomas’s face, which the lion does of his own free will. Thomas does not force the lion’s jaw open and put his head in its mouth, which might have happened 60 or 70 years ago. It is very different now—it is a display of the relationship that man and animal can have, rather than a display of dominance over an animal, as it would have been a long time ago.

Alexander Burnett

I refer to my entry in the register of members’ interests.

My question is for Martin Burton. You said that there have been no wild animals in circuses in Scotland in the past 12 months and only two in the previous five years. What economic impact will the bill have?

Martin Burton

As other witnesses have told the committee, the danger is that the definitions are not clear. Clearly, the economic impact on circuses with wild animals that already do not come to Scotland will be zero. However, the economic impact on animal displays in shopping centres, on hawk and wild bird displays at outdoor shows, on Santa displays that use reindeer and, eventually, on zoos will be massive. That is the direction that the legislation is going in—it will eventually close your zoos.

Rona Brown

I would like to pick up on that point. There is a gentleman who owns camels, and he is great with them—he looks after them extremely well. He travels around county shows, including shows in Scotland. He leaves home with his camels inside a big truck, pulling his living wagon behind him. He also does pig racing. His staff come along with the wagon with the pigs in it, pulling a living wagon behind them, and they have another living wagon that is pulled by a car. He travels in England from one county show to another, throughout the summer months. He gets to the show the night before it opens, because he has to sort out all his camels and make sure that everything is all right. He pulls from the side of his truck a big tent awning that is supported by posts. If the weather is bad, everything is enclosed. He takes his camels out and he ties them to the side of his lorry. He builds the pig fence, and the pigs come out and go into that area.

During the show, that gentleman does camel polo. You can play polo on a camel in a ring—the ring is obviously bigger than a circus ring. He does pig racing in a straight line. He does camel rides in a ring, and camel racing in a straight line. He stays at one show for a couple of days, when he moves to the next one. He might stop on the way if there is a week between the shows. That is what he does during the summer months. Why is that so different from what the circuses do? How can you justify saying that that is not a circus, given that you are saying that a circus is something that uses a tent and has performances in a ring to entertain the public.

The Convener

Your analogy would be dependent on which type of camel was being used, given the evidence that we had earlier.

Rona Brown

I am sorry, but I cannot hear you.

The Convener

In terms of definition, the bill is concerned with wild animals in circuses. Going back to the earlier evidence that Mr Beckwith gave us, whether the legislation applied to those camels would depend on the type of camels that they were.

Rona Brown

He uses the same camels that the circuses use—Bactrian camels.

Anthony Beckwith

All camels in captivity are the domesticated type; there are few wild camels left. The dromedary camel is completely extinct in the wild, and there is only a small population of Bactrian camels left in the wild—it is an endangered species. There is a feral group of camels in Australia, but they are bred from domestic lines. Certainly, all the camels in captivity are domesticated.

The Convener

I recognise the point that Rona Brown is making but, according to that evidence, those camels would not be covered, because they are not wild animals.

Carol MacManus

So can I come here with my wild animals in my circus, once the bill is in force? Are my two camels wild animals?

The Convener

It would depend on the definition.

Rona Brown

Is it just the word “circus” that we have a problem with?

The Convener

No. The bill concerns wild animals in travelling circuses. My point concerns clear definitions. I understand the point that you are trying to make, but the camels that you are talking about would not be covered, because they are not wild animals.

Rona Brown

But then neither are the animals in Peter Jolly’s circus or Carol MacManus’s circus.

Martin Burton

The bill refers to animals that are domesticated in the UK, which does not include camels.

Anthony Beckwith

The definition of “wild animal” that I gave is the scientific definition, but the definition in the bill is an animal that is not usually domesticated in the UK. Those two definitions are completely different. There are animals that are farmed in the UK quite extensively that come under the taxonomy of “wild animal”, such as ostriches, crocodiles and so on—

Rona Brown

Wild buffalo.

Anthony Beckwith

Yes, and the American bison. There are domesticated animals that we would class as wild for the purposes of the bill but which actually are not wild, and there are other animals that are wild but which would not be covered by the definition in the bill, because they are farmed in this country quite extensively. I think that between 10,000 and 15,000 ostriches are farmed in the UK every year but they are classed as wild animals. They are not domesticated, but they are farmed in the UK.

12:00  



Richard Lyle

I have two questions, the first of which is for Martin Burton. I was at Blair Drummond safari park on Sunday with my grandkids. It was excellent, apart from some showers. We went in to see a seal show. Two seals came out, performed tricks and clapped their fins to get people clapping. I have been at the penguin parade at Edinburgh zoo. Could the bill be the start of all those things being done away with because people—

Martin Burton

Well—

Richard Lyle

Let me finish, Martin.

Could it be the start of all those things being done away with because people are concerned about animal welfare? I am for animal welfare. The fact that I am the convener of the cross-party group on the Scottish Showmen’s Guild does not mean that I am on your side, guys. I am on the side of what is best for animals.

Martin Burton

I said at the outset that I am an animal welfarist, too. However, once we start banning things, particularly on ethical grounds, it will clearly spread. If it is not ethically right to have a wild animal in a circus, it is not ethically right to have a wild animal appear at a gala, at a county show, in a shopping centre or in a zoo. That is clearly and logically the only way that an ethical ban can go. You cannot choose your ethics. You will say either that it is ethical or that it is not ethical.

Richard Lyle

My last question is for Rona Brown. Over the past number of years, as the convener of the cross-party group on the Scottish Showmen’s Guild, I have come across showmen. You are not Gypsy Travellers; you have your own ethnicity. Do you see the bill as an infringement of your ethnicity and your right to work?

Rona Brown

Yes, I do. There are several laws that would cover that, such as the right to travel under European Union law, of which it would fall foul.

Incidentally, Peter Jolly Sr is a member of the Showmen’s Guild and has been ever since he started.

The bill would be an infringement of rights, particularly for smaller circuses such as Carol MacManus’s, which is a family circus, and Martin Burton’s. It is like you are saying that it is unethical just because you can. Why ban the use of wild animals in circuses just because you can and without reason, when the circuses are not doing anything wrong? We know right from wrong. We know that it is wrong to beat animals. Why have a ban if the circuses are not doing that or leaving animals out in the cold? If they are doing those things, yes, you should say that they cannot come here and are banned. However, if they are not, it would be an infringement of the workers’ rights.

What will a family like the Jollys do? They do not outsource or buy in acts—not the aerial acts or anything. The whole family does the show; nobody gets hired in. They did outsource once, but it was only once. Everything revolves around the animals. They all take turns with training. They have a little educated pony. The children come in and the ringmaster asks how old they are. He asks their name and asks the pony how old it thinks they are. The pony goes tap, tap, tap with its hoof. That is training. The public love it. They love it when the camels come in. They absolutely love to see the fox on the back of the donkey.

Richard Lyle

Is that a domesticated fox?

Rona Brown

Foxes are indigenous to the UK, but according to DEFRA they are still wild animals and have to be licensed. There is also a macaw—a type of parrot—that talks and does things, and the Jollys also do educational talks in the zoo after the show. When the show finishes, people go out and look at how the animals live and are fed. The Jollys do not talk about elephants in Africa or Asia or whatever people talk about in Deep Sea World or Sea Life; they talk about a little zebu that they have, where it comes from, what it does, how it came to be at the circus and what its background is. The same goes for the fox, the camel and the zebras. That is what these people do. In my opinion, it would be grossly unfair to class all circuses in the same way.

The Convener

Just to wrap this up, I note that Ms Brown mentioned zebras. Given what Carol MacManus told us about her two zebras and the behaviour that they exhibited, can wild animals become domesticated over a period of time?

Carol MacManus

Why not? Three months ago, I took on a young horse. We had to castrate him because he was quite wild; I cracked my ribs unloading him, and another time he kicked someone in the face. We have never had that with our zebras. Which, then, is the wilder—the wild horse that is actually domesticated or the wild zebra that appears to be more domesticated than the horse?

The Convener

On that thoughtful note, I conclude the session by thanking the witnesses from this and our other panels. You have given us a lot of questions to take away with us, and the evidence has been very useful from our point of view. Thank you for your time.

At its next meeting on 13 June, the committee will take further evidence from stakeholders on the Wild Animals in Travelling Circuses (Scotland) Bill, as well as evidence from the Cabinet Secretary for Environment, Climate Change and Land Reform on the draft Prohibited Procedures on Protected Animals (Exemptions) (Scotland) Amendment Regulations 2017, after which we will consider motion S5M-05754.

As agreed, we move into private session. I ask that the public gallery be cleared as the public part of the meeting is closed.

12:07 Meeting continued in private until 12:55.  



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Third meeting transcript

The Convener

Agenda item 2 is an evidence session on the Wild Animals in Travelling Circuses (Scotland) Bill with a panel of stakeholders. I welcome Melissa Donald, the Scottish branch president of the British Veterinary Association; Mike Flynn, the chief superintendent of the Scottish Society for the Prevention of Cruelty to Animals; Nicola O’Brien, the campaigns director for the Captive Animals Protection Society; and Liz Tyson, a consultant with the Born Free Foundation.

Members have a series of questions to put to the panel. Please bear it in mind that matters may arise from the evidence that may require witnesses to get back to us in writing. I thank you for your co-operation and ask Emma Harper to kick things off.

Emma Harper (South Scotland) (SNP)

Good morning, panel. There has been a lot of discussion of the issue of welfare versus ethics as we propose this ban on wild animals in circuses. What are the witnesses’ thoughts on the advantages and disadvantages of pursuing a ban on ethical rather than welfare grounds, and what are your views on the three criteria that are used to propose the ban: the impact on respect for animals, the impact of the travelling environment on an animal’s nature and the ethical costs versus benefits? Also, how clear is the purpose and policy objective of the bill?

Liz Tyson (Born Free Foundation)

The view of the Born Free Foundation is that a ban could have been introduced on welfare grounds. That is equally true for the policy process in England. That said, we do not believe that the two concepts are mutually exclusive; we think that ethics and welfare are inextricably linked. Our concern for welfare is inevitably going to be either based on or informed by ethical decisions.

I saw that one of the questions raised in a previous evidence session was about how the issue of transport fits into the ethical bracket, because that is surely more focused on welfare than on ethics. However, when we talk about respect for wild animals from an ethical perspective and about respecting their natural needs and behaviours, it fits perfectly to say that it would not be ethical to transport lions, tigers or elephants in the backs of lorries, as that frustrates their ability to show their natural behaviours.

We would have liked the ban to be brought in on welfare grounds, partly to see that aspect of the Animal Health and Welfare (Scotland) Act 2006 tested in fulfilling that, but we are happy with the proposal to introduce a ban in the most expedient way possible. If that is via ethical grounds, we agree that the criteria of respect for animals and so on are all really important.

Mike Flynn (Scottish Society for the Prevention of Cruelty to Animals)

We first got involved in the issue in 2007, when a Westminster committee was set up but refused to take anecdotal evidence on the welfare aspect. That is why the ethical aspect came into consideration. I have always thought that wild animals should be banned from travelling circuses. I am happy to say that that should be on welfare grounds, and it is a bit of a no-brainer from the ethical point of view. There is no real benefit in having certain species in circuses other than entertainment.

The Convener

Does it matter what the grounds are for the ban? Is it just that we need a ban?

Nicola O’Brien (Captive Animals Protection Society)

I think so. CAPS has worked on the issue for 60 years, and our interactions with the public show that there is a mixture of reasons for concern. People think that the inherent nature of the travelling and of training and making those animals perform is a welfare concern. Nevertheless, I agree with Liz Tyson that it is also linked to ethics because people feel that it is wrong to do that to animals.

That may stem from the fact that they think that it compromises the welfare of the individual animals but, as the Government itself has pointed out in its policy documents, there is a growing public opinion about how we see animals, and people just do not feel that it is right for us to use animals in that way. However the policy is delivered, it is meeting the need to respond to those viewpoints from the public. That is the priority, and it is also for the good of the animals themselves.

Emma Harper

The last time that we took evidence, the witnesses talked about the five freedoms for animals—the freedom from hunger and thirst, the freedom from pain and discomfort, the freedom from injury, the freedom from fear and distress and the freedom to express normal behaviour. Can animals that are in a circus environment experience the freedom to express normal behaviours?

Liz Tyson

I would say categorically no. They might have freedom from injury and disease, because there is the potential for veterinary care, but in terms of their natural behaviours, natural environment and social groupings and the ability to make choices about their day-to-day life, I would say that they are severely frustrated. In some circumstances, it will be impossible for their needs to be met.

Nicola O’Brien

I agree. We see some stereotypical behaviours in animals in circuses and other facilities. Those are behaviours that animals perform that are unusual, that serve no function and that we would not normally see in animals in the wild, such as a tiger pacing up and down in a small area or shaking its head from side to side. Such behaviours are recognised as an indicator of the impact of captivity on animals, and they are seen in wild animals in circuses, which can show that they are being deprived of the ability to perform the behaviours that they would perform naturally.

Of course, if we compare the environment of a circus and long hours of confinement to what the animals would naturally experience in the wild, we can see why the circus environment may not meet those animals’ needs.

Finlay Carson (Galloway and West Dumfries) (Con)

Given what you have just said, what are your thoughts on the penguin parade at Edinburgh zoo or displays of wild birds of prey at agricultural shows?

Nicola O’Brien

Our organisation is also opposed to the use of animals in those ways, because we think that it does not respect the three reasons that were set out for the bill. We do not think that it fulfils the objective of respect for animals. Parading or displaying animals as a form of entertainment is inappropriate.

Our organisation opposes the use of animals in falconry, as there are similar ethical and welfare concerns about animals being used in that way. However, we are aware that we are here to talk about circuses in particular, and that is the issue on which the public has responded through the consultation.

Melissa Donald (British Veterinary Association)

We fully support the bill as it is drafted. We should note that the penguins at Edinburgh zoo have a permanent enclosure, and for the bulk of their time they are able to exhibit more natural behaviours. Also, falcons and similar birds need to be exercised by flying and, in a sense, the display is a way of exercising them and teaching them to grab food. That is a different matter from the transportation of animals, which is the issue that the bill deals with. Emma Harper referred to the use of the phrase “travelling circuses”. The whole point is that the animals are travelling and space is limited, so species might be kept next to one another inappropriately, which would induce fear.

The Convener

Let us explore that at this point. Your submission talks about the impact of group housing on aggression and normal behaviour. Can you expand on that?

Melissa Donald

When there is only a certain amount of room to transport animals, fear is induced in them, and the first thing that a lot of species do when they are scared is fight or try to appear bigger than they are. They want to dominate the situation in order to tell the other guy, “Hey, don’t mess with me,” even though they feel scared inside.

The Convener

In bullet point 7 on page 6 of your submission, you say:

“We believe that this ban should cover all wild animal species without exception.”

How does that differ from what is proposed?

Melissa Donald

It would ensure that there were no loopholes and that people could not argue that a particular animal is not a wild animal. It would make the ban really clear.

The Convener

How do you propose that that should be done?

Melissa Donald

It would be done through the definitions that are already in the bill.

The Convener

Are there any possible loopholes in the bill as it is drafted?

Melissa Donald

No, not as it is drafted at this point.

Mark Ruskell (Mid Scotland and Fife) (Green)

What are the panel’s views on the general scope of the bill? It does not include static circuses or transportation and keeping of animals that are part of a travelling circus. It also does not cover other forms of animal performance, which have been touched on already.

Mike Flynn

As I said earlier, the reason why the bill has come about is historical. When it was first mooted a decade and a half ago, England and Wales were talking about a total ban on circuses. At that point, one of the most famous circuses, which was based at its winter quarters in Blackpool, tried to buy a site in Kilmarnock to which to relocate.

There is a parallel between the bill and the mink bill that became the Fur Farming (Prohibition) Act 2000. We did not have any mink farms in Scotland, but because it was being proposed that they would be banned down south, we implemented a ban up here so that fur farms could not relocate. The context of the bill has not really changed in 15 years. I see it as a preventative measure.

I hope that the committee understands how circuses have changed over the years. I have been in my job for 30 years and was, for 7 years before that, a keeper at Edinburgh zoo. To return to Finlay Carson’s question, the penguins there are free to come and go on the parade; they are not forced to go out. Thirty years ago, about six travelling circuses used to come to Scotland with elephants, tigers and lions—the Il Florilegio circus even had giraffes, hippos and so on—but that has diminished over the years; I believe that there are now no circuses based in Britain that have any large cats—the last of them went a couple of years ago. You will know the story of Anne the elephant, who was the last elephant to be used in captivity. People are not clamouring to see such performances now, so circuses do not add animals to their collections in order to get people in. Perception of that has changed in the past 15 to 20 years.

Mark Ruskell

If it is a preventative measure, why not add static circuses as well, so that animals will not appear in them?

Mike Flynn

Pass. I do not know. However, there is a better chance of ensuring better conditions for animals in some static circuses, because the bill takes out the travelling aspect. We have visited every circus that has come here in the past 30 years and some of the animal accommodation has been what we class as being suitable for housing and for sleeping, but there is no way that an animal could exhibit any natural behaviour in such situations.

Nicola O’Brien

We have outlined that static circuses could be included in the bill. We interact with the public on that issue all the time; a huge part of our work is to engage with the public, to get people’s opinions and, we hope, to raise awareness. People are concerned that animals are being used to perform in the circus environment, but the travel aspect is also a large part of their concern and it is one of the main arguments that we use for why circuses with animals should be banned.

With regard to the ethical basis for the bill, the issues include the impact on respect for animals and the ethical cost versus benefits. If we are talking about static circuses in the same way as travelling circuses, what people are fundamentally concerned about is using animals by putting them on display and making them perform certain behaviours. I am aware that there are currently no static circuses in Scotland; also, few or none travel to Scotland at present. Therefore, perhaps including static circuses is an option.

10:00  



Mark Ruskell

Do you have evidence of wider public concern about animal performances beyond travelling circuses? The consultation was very much about travelling circuses, and I am struggling to know what public opinion is.

Nicola O’Brien

To my knowledge, no other consultations or polls have asked specifically about that. I am going by our and other organisations’ history, as well as our work with local people. As you are aware, there are council bans on the use of animals in circuses in Scotland and elsewhere in the country. We have engaged a lot with the public, who have supported and rallied for a ban. The conversations that we have are not about one type of circus over another; use of animals in circuses is the concern.

Liz Tyson

Having been part of the advocacy and campaigning in Scotland, England and, to a lesser extent, Ireland over the past seven or eight years, I wonder whether the reason why static circuses are not included in the bill is that everything started on the basis of considering a ban on welfare grounds. England then rejected the idea of a ban based on welfare grounds and invited Scotland to join in proposed legislation on the basis of ethics. When a ban was being considered purely on welfare grounds, travelling was a huge part of the issue. The fact that travelling is still an issue is really a hangover from that, but I agree with Nicola O’Brien that, if we say that it is unethical to use wild animals in circuses, although travelling may impact that, the wider issue is that they should not be used.

That said, to return to what we said before, we are really grateful that Scotland is introducing a ban. We understand that the consultation has been carried out with travelling in mind. That perhaps explains why static circuses have been left out of the bill.

Melissa Donald

The housing environment in static circuses is more permanent and can be better adapted to cater to animals’ welfare needs. As the other witnesses have said, the consultation highlighted that travelling is the main issue.

Mark Ruskell

The Cabinet Secretary for the Environment, Climate Change and Land Reform has put it to us that the Government intends to legislate on other areas of animal performances. However, that is not included in the bill. One of the local authority witnesses last week said that it might be better to have a catch-all approach rather than a piecemeal approach. What is your view on that?

Liz Tyson

In what sense do you mean “a catch-all approach”?

Mark Ruskell

It was put to the committee that the bill could include all the other areas of animal performance. I am interested in your views on targeting circuses specifically, rather than taking a wider approach.

Liz Tyson

That is a difficult one. The Born Free Foundation campaigns for wild animals, works to protect them and opposes their use in captivity. In an ideal world, we would love all those things to be dealt with equally. However, we are aware of the practicalities of the matter.

We were heartened to be told in a meeting with civil servants, which we attended along with a number of the other witnesses who are present, that mobile zoos and reindeer displays, for example, may be looked into soon. We certainly welcome that. I would be reluctant to say that they should be considered now, because I imagine that it would be a huge amount of work and would cause a huge delay, so we could miss the opportunity to introduce the ban, which is incredibly important.

In an ideal world, we would not take a piecemeal approach, but in the practical world, we would rather see the bill being passed and then continue to work with the Government to proceed on other issues.

Nicola O’Brien

In our submission, we have included comments about mobile zoos and similar uses of animals. I will go back to ethics, which is what we are talking about today. Animals in mobile zoos have similar, if not the same, welfare considerations as those in circuses. The report that was commissioned last year by the Welsh Government from Dorning et al has been mentioned. Its remit was expanded from animals in travelling circuses to other forms of travelling entertainment with animals, which included mobile zoos. It came to the same conclusion—that there are grounds for a ban based on animal welfare, which we support.

Our organisation shares Liz Tyson’s view; we are torn. We campaign for a complete end to the use of animals in such ways, but we want the bill to move swiftly so that we can get its measures in place. A bill of this nature is grossly overdue in the United Kingdom; Scotland leading on this would be a fantastic and significant start.

The Convener

Are there any other views on that?

Mike Flynn

It may be down to public perception; the vast majority of the surveys that I have seen are against the use of wild animals in travelling circuses. There is a growth in bird of prey demonstrations and what are classed as mobile zoos. I would call them mobile exhibitions because they are not zoos as such—they are not taking tigers and lions about. Anyone here could hire one for a children’s party or school for £80 or £100; you pick the species that you want—mainly from snakes, small mammals and spiders—and they are all travelled. We have concerns that snakes are being travelled alongside ferrets and other things, which is going down the line towards circus activity.

Nicola O’Brien

Circuses are the priority, given the history, public opinion and the work that has already been done. We included mobile zoos because we want to point out strongly that they need in due course to be taken just as seriously, after the passing of the bill. We have heard a few highlights from the catalogue of issues: the travelling aspects, with many animals in small crates or boxes; social animals being kept singly; animals being on the road for many hours and at events for many more hours; and the handling, that may go beyond circuses, with many animals being passed around by children and adults. Mobile zoos are a relatively new industry, which is only just coming to the attention of authorities such as local authorities, the Government and even non-governmental organisations and animal welfare groups. We wanted to include them, because they are worth the same consideration as circuses, in the future.

The Convener

Is there a counterargument that properly run displays of that type encourage respect for animals and greater understanding? Is there a balance to be struck?

Nicola O’Brien

That argument has been used about circuses in the past. Our organisation has worked on the issue for 60 years—although not me personally. Having read about the campaign, I know that the arguments for circuses in the past were similar—that they were a way for people to view and get close to wild animals, and potentially to learn about them, that they did not have before. As we have pointed out, our attitudes to animals as a nation have changed and there are now ways to achieve knowledge and respect for animals without having them in front of us to handle and to take photos with them.

Richard Lyle (Uddingston and Bellshill) (SNP)

I remind members that I am the convener of the cross-party group for the Showmen’s Guild and an honorary member of the Showmen’s Guild Scottish section. I support the principles of the bill, but I have concerns.

At last week’s committee meeting, Martin Burton, representing the Association of Circus Proprietors of Great Britain, stated his concerns about a lack of clarity regarding definitions in the bill:

“Clearly, the economic impact on circuses with wild animals that already do not come to Scotland will be zero. However, the economic impact on animal displays in shopping centres ... hawk and wild bird displays at outdoor shows ... Santa displays ... reindeer ... and, eventually, on zoos will be massive. That is the direction that the legislation is going in—it will eventually close your zoos.”—[Official Report, Environment, Climate Change and Land Reform Committee, 6 June 2017; c 41.]

Nicola O’Brien alluded to that issue a few minutes ago and Finlay Carson mentioned penguins.

Does the panel agree that the bill relates to travelling circuses and therefore does not cover static circuses and zoos? Do you believe that it covers other animal shows, wild west shows or any show with a different theme, or does it need to be tightened, as per the cabinet secretary’s recent letter?

Liz Tyson

With regard to the definitions, we had a concern about the definition of domesticated animals, but not about the definition of circus.

When legislation of this sort has been introduced in other countries, the idea is often thrown up that it is the thin end of the wedge—that once it is passed, the floodgates will open and suddenly people will not be allowed to have a pet dog or cat.

If we could impact on animal welfare in zoos and in other situations, we would be very happy, but we are also aware that legislation is tightly and narrowly focused—I think that this bill is.

Since 1981, circuses have been excluded from zoo licensing, and that has worked perfectly; the licensing regime in the UK is specifically for circuses. We have not had falconry shows being accidentally captured by that legislation, and it uses exactly the same definition. A travelling circus is a circus that travels. People know what a circus is; they do not confuse a falconry show in a shopping centre or a mobile zoo with a circus—the precedent of the UK legislation already shows that that does not happen. It is not what anybody who is involved in advocacy and lobbying to introduce animal welfare legislation wants. Introducing one piece of legislation certainly does not open the floodgates to suddenly fixing everything else.

The Convener

CAPS has expressed concerns about the definition of a circus, has it not?

Nicola O’Brien

We have. We understand that there is no need to specifically outline what the word “circus” means, given that there is a general understanding of it. We welcome that approach—we are not saying that “circus” definitely needs to be defined—but with caution, given that we do not want some businesses that we think should be classed as circuses to be excluded.

The decision on the definition needs to come from the Government, on the basis of what it wants to ban. We, and probably the other NGOs that are on the panel, would be happy to help with the definition if that was deemed necessary.

The Convener

Will you give an example of the type of business that could get through a loophole?

Nicola O’Brien

There were comments in previous evidence sessions that, for example, an act that travels with big cats might say that it does not subscribe to being classed as a circus because it does not have some of the more traditional aspects of a circus or the image that the word “circus” conjures in the public’s mind. That is our concern, although whether that means that it would be agreed that such an act was not covered by the bill is an open question. We also do not want to narrow the focus too much, in case we end up with the same issue.

Richard Lyle

Anthony Beckwith, who represented An Evening with Lions and Tigers, said that his act was outwith the scope of the bill.

To go back to councils, we have 32 councils in Scotland that all work to the Civic Government (Scotland) Act 1982 but interpret it differently. Andrew Mitchell of the City of Edinburgh Council suggested that, if we want to improve how we deal with performing animals, we had better do it

“in one piece of legislation”

and that

“a piecemeal approach ... is not helpful”.—[Official Report, Environment, Climate Change and Land Reform Committee, 6 June 2017; c 21.]

The person from Argyll and Bute Council agreed with him. What is your view on the councils’ interpretation of the legislation?

Liz Tyson

I am not sure that I understand. Is the person from the City of Edinburgh Council asking for other types of animal use to be brought under the bill?

Richard Lyle

They are looking for clarification. I mentioned Anthony Beckwith. When he sought clarification from someone in the Scottish Government, they said, “I don’t know.”

10:15  



Liz Tyson

Since the introduction of the Zoo Licensing Act 1981, any travelling circus has known that it is not a zoo. Circuses have known that well enough to define themselves as circuses so that they do not fall under the licensing regimes for zoos. “An Evening with Lions and Tigers” certainly defined itself as a circus when it was in England, because it applied for a licence, which was refused.

Local authorities might say, “We don’t know exactly how to define this,” but that wriggle room is given in a lot of legislation. It means that we do not end up with absurd situations where, for example, something that is clearly not a circus is defined as one. As Nicola O’Brien said, we want to make sure that all circuses are captured, and common sense would say that an act that performed in a big top with a group of lions and tigers would be defined as a travelling circus. That is certainly how “An Evening with Lions and Tigers” defined itself in England.

Richard Lyle

A travelling circus is something with clowns and acrobats, if we are considering the definition. That is the grey area that I am concerned about.

I support the bill, but it has been pointed out that there has not been a wild animal travelling in a circus in Scotland for a number of years—I think that Mike Flynn said that. We heard last week that a circus in England hops short distances of up to 27 miles but that travelling more than that would affect the animals. Basically, I think that Melissa Donald agrees with me. I know that the Government wants to stop the use of wild animals in travelling circuses. I am getting research done, but I know that most of the 32 councils have already banned circuses with wild animals from council land.

I will ask my final question. To what extent could the bill’s definition of “wild animal” pose an interpretational challenge?

Liz Tyson

The problem is less the definition of “wild animal” and more the inclusion of the term “domesticated”. The two are mutually exclusive, but the term “domesticated” has been defined in a confusing way, as it could suggest that domestication simply involves breeding animals in a captive environment for a few generations and taming them. That is very different from the process of domestication, which takes place over millennia and changes animals genetically, physically and physiologically. The definition in the bill could lend itself to people making arguments, which I have heard before, that I certainly do not subscribe to. It would be interesting to hear vets’ opinions on the idea that tigers that have been bred for five generations in a circus are now domesticated, which goes against any scientific information that we have.

The definition in the Zoo Licensing Act 1981 of wild animals as

“animals not normally domesticated in Great Britain”

has been used successfully since the early 1980s. That act does not contain a definition of domesticated animals, but the definition of wild animals has served us perfectly well. We therefore suggest removing the reference to domesticated animals from the bill, because it may become confusing.

The Convener

I will bring in Mike Flynn. Given your background in enforcement and investigation, how do you view the definitions in the bill? Are you comfortable with them?

Mike Flynn

Yes. Defining a wild animal as

“an animal other than one of a kind that is commonly domesticated in the British Islands”

means that animals such as camels, which some people would argue have been domesticated in other countries in the world, are seen as wild animals.

The term “circus” is widely known. I do not agree that a circus has to include every aspect that we might think of. The Chinese and Russian state circuses that come here have no animals and have never had animals, but they are still classed as circuses.

I do not have a problem with the definitions. Ultimately, it is the court that decides on this kind of thing. Lots of things that we deal with do not have clear definitions—for example, there is no clear definition of puppy farms in the eyes of the law, but we can still deal with them.

I do not see that that is a problem, but there is a problem with the 32 local authorities having 32 different opinions. That comes across to everyone who is involved in the licensing sector. If someone wants a dangerous wild animal licence in Glasgow, it will cost them £50. In Edinburgh, they will be priced out of the market, so they will be unable to get one. There is no common ground there.

It is great that local authorities have banned such circuses from appearing on their land, but when that rule first applied in Edinburgh, the circuses went to Murrayfield ice rink car park or the Royal Highland showground. If there is a loophole, people will find it. I do not have a problem with the definitions.

The Convener

Does anyone else want to respond to Mr Lyle’s questions? If not, is Mr Lyle content?

Richard Lyle

I have a quick wee question. Are llamas, camels and reindeer domesticated animals?

Liz Tyson

In this country, a llama is classed as domesticated. There has been clear guidance off the back of the 1981 act for some time—there has had to be—and there is a schedule that helps local authorities to understand what is or is not a domesticated animal. Some species of reindeer are considered to be domesticated in some places but not others—I cannot give you the names of the species and subspecies, but they are in the schedule. In the British isles, a camel is never a domesticated animal. There is precedent in the UK statute book on that.

David Stewart (Highlands and Islands) (Lab)

How effective is the UK Government’s licensing system at safeguarding the welfare of wild animals in travelling circuses?

Mike Flynn

I do not think that it has had a material effect; things have not changed over the years, so I have no comment to make on that.

The travelling aspect has always been our biggest concern. I agree with Mr Lyle that, these days, circuses normally go 15 or 20 miles, or whatever. However, it is commonly known in the livestock industry that the biggest problem with transporting animals is loading and unloading them. There is an element of stress, even if the animals are travelling a short distance. It can be easy to physically handle livestock but not tigers and lions.

Liz Tyson

Peter Jolly’s circus, which is one of the two that currently have wild animals, performed for a number of years with the act that is now “An Evening with Lions and Tigers”. That act was licensed as part of Jolly’s circus for, I think, two years, and then broke off, came up to Scotland and was in Fraserburgh over the winter. The weakness that that shows is that the proprietor was able to take his animals out of the licensing regime and move them across the border, so that suddenly his act was subject to no meaningful regulations beyond general animal welfare regulations.

It is very telling that, after that, when Mr Chipperfield and Mr Beckwith applied for a circus licence—I understand that they were using the same lorries and accommodation as they had previously used—they were refused, because they did not meet the required standards. It appears that the standard of accommodation had been licensed for two years and then suddenly the same standard of accommodation could not be licensed. There are discrepancies in how facilities are inspected.

Circus Mondao had its licence suspended after numerous warnings from the Department for Environment, Food and Rural Affairs, which are documented. As I understand it, there had been repeated warnings about, for example, members of the public being allowed to have contact with the reindeer when they were in winter quarters and issues to do with the welfare of one of the camels, and eventually the circus licence was suspended. There were all sorts of issues with getting the paperwork together and so on.

It does not look to us, from the outside, as if the system has done anything substantial to improve animal welfare. To be honest, that does not really surprise us. I think that all the organisations that were consulted—or involved, rather, because we refused to participate in the consultation on the measure—said from the outset, “This isn’t going to work”.

David Stewart

As you know, the Scottish Government rejected the regulatory approach, and one of the arguments for doing that was that there is a lack of scientific data on animal welfare. Do you agree with that assessment?

Liz Tyson

When the Westminster Government introduced the licensing regime, it claimed that the regime would guarantee that high standards of welfare were met—I think that that is what was said, almost word for word. When we asked the Westminster Government what analysis and research it had done to explore how to meet the welfare needs of wild animals in circuses, it responded that it had not done any. Our view is that the approach appeared to be one of setting the benchmark at the best circus standards that can be achieved, but whether those standards ever met animal welfare needs was never confirmed, and we argue very strongly that they cannot do so.

David Stewart

So there is a real issue with the data and enforcement.

Liz Tyson

Yes.

David Stewart

That is very helpful. Do other members of the panel have any observations on that?

Nicola O’Brien

Liz Tyson has covered the examples that I had with regard to Circus Mondao. Our only general comment is that licensing and continuing to allow wild animals in travelling circuses does not address the ethical concerns, which are what the bill is based on.

David Stewart

In earlier answers to my colleagues, you touched on what might be your ideal bill, but if you were to start from scratch to protect wild animals in travelling circuses, would you add aspects that do not appear in the bill or would you basically endorse the bill? Is there anything that you would take away or add?

Liz Tyson

The only substantive thing is that we would remove the domestication definition, for the reasons that we have outlined. We understand that the issue is display, performance and exhibition; banning ownership goes into completely different territory, which could arguably be discriminatory. We support the bill’s aim to ban wild animals in travelling circuses, which we have all worked towards for a long time.

Nicola O’Brien

I agree—we are happy with the bill’s focus on wild animals in travelling circuses. We, too, highlight our concern that the domestication definition could be open to challenge.

Mike Flynn

As I said in our submission, I see the bill as a preventative measure—the intention is to stop the issue before it starts. I have known every circus that has come to Scotland in the past 30 years and the circus community is very law abiding. No one is going to break the law once they know that there is something that they are not supposed to do here. Given that, as Martin Burton said last week, the ban will have no financial impact on the industry, I do not have a problem with it.

Melissa Donald

The BVA supports the bill as it stands—we would not add anything to it.

David Stewart

Thank you. That is very straightforward.

Kate Forbes (Skye, Lochaber and Badenoch) (SNP)

I have some questions about the enforceability of the legislation. David Kerr of Argyll and Bute Council told us:

“Moving things to an ethical basis could be very profitable for defence teams, because what we need when we enforce legislation is a clear definition.”—[Official Report, Environment, Climate Change and Land Reform Committee, 6 June 2017; c 17.]

Are there implications for the enforceability of the bill given that it has an ethical rather than a welfare basis?

Liz Tyson

Mike Flynn is probably better placed to answer that, but I have a small point. As there is strict liability, if someone operates such a circus, they will have breached the regulations—full stop. I do not consider that the background to the bill—whether or not it is on welfare grounds—will have an impact when it comes to enforcing the law. It seems clear to me that if you are operating a circus with wild animals you are in breach of the legislation. I would not necessarily see the basis as an issue.

Mike Flynn

I agree. Although the bill is based on ethical principles, because previous committees said that there was not sufficient evidence to base it on welfare, the offence is black and white—if you operate a travelling circus, you are committing an offence, regardless of whether the bill is ethical or welfare based.

Melissa Donald

I agree.

Kate Forbes

Do you have any thoughts on the proposed enforcement approach and provisions, particularly the discretionary nature of the obligation on local authorities to enforce the bill?

Mike Flynn

That crops up in lots of legislation, such as the Animal Health and Welfare (Scotland) Act 2006, which says that local authorities may enforce the act, not that they shall enforce it. That is common in many aspects of licensing and will not make any difference here.

I am not sitting here banging the Convention of Scottish Local Authorities drum, but one of the problems is that local authorities are vastly underfunded and licensing provisions cost money. I am a big supporter of the idea that any licensing should be self-funding, because local authorities are not going to take money from essential services to provide something that—no disrespect to local authorities—many of them are not trained to do. The inspectors do not know half the species that they are dealing with.

10:30  



Kate Forbes

I am thinking of the powers in the bill. I accept the point about the need for resourcing, but do you have any thoughts about the lack of any provision that would enable local authorities to prevent a circus from operating while they investigate and report the matter to the procurator fiscal or obtain records from the operator?

Mike Flynn

This is in the bill. The local authority has the right, with a warrant, to enter a premises and gain information to send to the procurator fiscal to establish whether an offence has been committed. Other legislation extends to seizing the animal involved, but no one is going to need to seize an exotic animal from a circus, given that we are talking about a law-abiding community. That is why I have said that I do not see that happening.

Kate Forbes

I suppose that the issue is local authorities being able to serve a notice to prevent the activity from going ahead while the investigation is on-going.

Mike Flynn

Technically, if, as soon as the local authority took action and decided to report the issue to the procurator fiscal, the show moved 5 miles down the road and started again, it would be a subsequent offence and so on. I just do not see circus people doing that.

Claudia Beamish (South Scotland) (Lab)

I want to continue the line of questioning in relation to enforcement. Does any member of the panel have views on the proposed maximum fine level, which is level 5? Are you confident that that level of fine will act as an appropriate deterrent to the use of wild animals in travelling circuses in Scotland?

Mike Flynn

I am. In his evidence last week, Martin Burton said that if you fined him £5,000 you would put him out of business. When I was a child it was hard to get into the circus—they were mobbed. These days some of them have very poor attendance and very high overheads. I think that £5,000 is proportionate.

Liz Tyson

It is worth adding that, as Mike Flynn said, once the ban is in place, people are generally likely to abide by it. I do not think that the circus community and circuses with wild animals will try to get round it. They will not be happy about it, but that will be it. We do not have to worry about them trying to breach the ban or get round it in some way.

Claudia Beamish

Thank you.

The Convener

That concludes the evidence from the panel. I thank the witnesses for their useful contribution.

The committee is slightly ahead of schedule, so I suggest that we move into private to take item 5 and resume in public at 11 o’clock, when we will be joined by the cabinet secretary for the next part of the meeting. Do members agree?

Members indicated agreement.

10:33 Meeting continued in private.  



11:02 Meeting continued in public.  



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Fourth meeting transcript

The Convener

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

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

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

Kate Forbes (Skye, Lochaber and Badenoch) (SNP)

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

The Cabinet Secretary for Environment, Climate Change and Land Reform (Roseanna Cunningham)

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

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

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

Kate Forbes

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

Roseanna Cunningham

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

Kate Forbes

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

Roseanna Cunningham

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

10:00  



Richard Lyle (Uddingston and Bellshill) (SNP)

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

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

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

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

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

Roseanna Cunningham

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

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

Richard Lyle

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

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

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

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

Roseanna Cunningham

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

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

The Convener

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

Roseanna Cunningham

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

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

Angela Lawson (Scottish Government)

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

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

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

Mark Ruskell (Mid Scotland and Fife) (Green)

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

Roseanna Cunningham

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

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

The Convener

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

Andrew Voas (Scottish Government)

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

Richard Lyle

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

Andrew Voas

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

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

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

Richard Lyle

Thank you.

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

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

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

Roseanna Cunningham

No.

Richard Lyle

Thank you.

The Convener

That was short and sharp.

Emma Harper (South Scotland) (SNP)

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

Roseanna Cunningham

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

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

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

10:15  



Emma Harper

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

Roseanna Cunningham

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

Finlay Carson (Galloway and West Dumfries) (Con)

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

Roseanna Cunningham

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

Finlay Carson

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

Roseanna Cunningham

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

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

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

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

The Convener

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

Roseanna Cunningham

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

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

Finlay Carson

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

Roseanna Cunningham

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

Finlay Carson

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

Roseanna Cunningham

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

Peter Chapman (North East Scotland) (Con)

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

Roseanna Cunningham

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

Mark Ruskell

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

Roseanna Cunningham

I am sorry—what do you mean?

Mark Ruskell

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

Roseanna Cunningham

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

Mark Ruskell

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

Roseanna Cunningham

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

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

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

Mark Ruskell

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

Roseanna Cunningham

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

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

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

Mark Ruskell

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

Roseanna Cunningham

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

The Convener

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

Roseanna Cunningham

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

The Convener

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

10:30  



Roseanna Cunningham

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

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

The Convener

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

Roseanna Cunningham

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

Claudia Beamish (South Scotland) (Lab)

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

Roseanna Cunningham

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

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

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

I am sorry—does that cover everything?

Claudia Beamish

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

Roseanna Cunningham

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

Angela Lawson

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

Claudia Beamish

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

Angela Lawson

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

Claudia Beamish

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

The Convener

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

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

10:38 Meeting suspended.  



10:44 On resuming—  



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23 May 2017

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6 June 2017

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13 June 2017

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27 June 2017

Environment, Climate Change and Land Reform Committee Committee's Stage 1 report 

What is secondary legislation?

Secondary legislation is sometimes called 'subordinate' or 'delegated' legislation. It can be used to:

  • bring a section or sections of a law that’s already been passed, into force
  • give details of how a law will be applied
  • make changes to the law without a new Act having to be passed

An Act is a Bill that’s been approved by Parliament and given Royal Assent (formally approved).

Delegated Powers and Law Reform committee

This committee looks at the powers of this Bill to allow the Scottish Government or others to create 'secondary legislation' or regulations.

It met to discuss the Bill in public on:

23 May 2017:

12 December 2017:

Read the Stage 1 report by the Delegated Powers and Law Reform committee published on 24 May 2017.

Debate on the Bill

A debate for MSPs to discuss what the Bill aims to do and how it'll do it.

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Stage 1 debate on the Bill transcript

The Deputy Presiding Officer (Christine Grahame)

The next item of business is a debate on motion S5M-08062, in the name of Roseanna Cunningham, on stage 1 of the Wild Animals in Travelling Circuses (Scotland) Bill.

15:03  



The Cabinet Secretary for Environment, Climate Change and Land Reform (Roseanna Cunningham)

I first thank the Environment, Climate Change and Land Reform Committee for its consideration of the bill. The committee took a great deal of evidence from a wide range of stakeholders and produced a very detailed stage 1 report, especially for such a short and concise bill. The Scottish Government has responded to the committee’s recommendations and I would now like to explain what the bill will and—perhaps of equal interest—will not do, and why I am bringing the bill before Parliament.

The bill will, quite simply, make it an offence for a circus operator to cause or permit a wild animal to be used in a travelling circus in Scotland. There has been growing concern for many years about the use of wild animals in circuses. Although such circuses have not recently visited Scotland, they continue to perform in the rest of the United Kingdom and across much of Europe. The bill is a Scottish National Party manifesto commitment. Scottish Labour and the Green Party had similar commitments, as did the United Kingdom Conservative Party.

The bill will address the widespread concerns that led to these commitments by preventing travelling circuses from ever showing wild animals in Scotland in the future. It will also demonstrate to the wider world that Scotland is one of the growing number of countries that no longer condone use of wild animals in that fashion.

Previous concern about wild animals in travelling circuses focused on perceived animal welfare issues. In 2007, the Radford report, which was the product of extensive evidence gathering by a committee that was appointed by the United Kingdom Government, ruled out a ban on welfare grounds. By 2016, the academic Dorning and her colleagues considered that, nearly 10 years on, there was sufficient new evidence on welfare to support a ban. However, such evidence varies greatly according to the type of animal, and much work is focused on a few naturally wide-ranging animals—in particular, tigers and elephants.

However, when the Scottish Government began work on the issue we recognised that there are much wider ethical concerns that apply to use of all wild animals in travelling circuses. The Scottish Government consultation in 2014 therefore asked specific questions about the potential for a ban on purely ethical grounds. The response was overwhelmingly in favour of a ban—98 per cent of respondents supported a ban on performance and 96.4 per cent supported a ban on exhibition. Many responses from individuals and organisations gave detailed replies to the ethical questions that were posed.

The bill seeks to address three main ethical concerns. The first is the impact on respect for animals. Most people now consider it outdated and morally wrong to make wild animals perform tricks that they would not perform naturally, and to display them in an unnatural environment simply to entertain the viewing public, thereby seeing animals as an entertainment commodity rather than as sentient beings.

The results of the 2014 consultation also showed that 89.5 per cent of respondents considered that the performances that are required of wild animals—not just their keeping—compromise respect for the animals concerned. In addition, more than 94 per cent of respondents considered that exposure to such acts has an adverse impact on the development of respectful and responsible attitudes to animals, particularly in children.

I am grateful for the additional engagement with young people that was undertaken by the committee, its clerks and the Scottish Parliament education service, and I welcome the results of the survey of young visitors to the Parliament. That survey showed that, of the 1,045 children and young people who were asked whether it should be an offence to use wild animals in travelling circuses, 81 per cent were in favour of a ban. That work echoes the results of the Scottish Government’s recent survey, which was carried out in conjunction with Young Scot. The clear majority of young people who responded to our survey—80 per cent—were in favour of the prohibition.

The second area of ethical concern is the impact of the travelling circus life on wild animals. In response to the 2014 consultation, more than 90 per cent of respondents considered that the ability of wild animals to undertake natural behaviours is compromised in the travelling circus environment. Many people regard that as morally wrong, regardless of whether it can be proved that the animals suffer, because it compromises the integrity of their wild nature and, therefore, their wellbeing.

The third area of concern is the balance between ethical costs and wider benefits. I know that other types of animal use cause concern about the environment in which the animals are kept, how far they are transported and what acts they are expected to perform. However, despite there being a range of individual views on the ethical challenges of other uses of animals, it is generally accepted that there are clear benefits to be obtained from conservation of exotic species and from food production. Those benefits are generally assumed to balance out the ethical costs.

A query was raised in the committee’s report about why the bill addresses only travelling circuses. I believe that use of wild animals in travelling circuses is unique among all the uses. It is the only situation that raises significant ethical concerns in all three of the areas that I outlined. Other types of animal use could give rise to unease in one or two areas of ethical concern, but not all three.

The bill will not stop use in travelling circuses of domestic animals including dogs and horses, or use of wild animals in displays in static circuses and zoos and at public gatherings. Penguin parades at zoos, birds of prey demonstrations at fairs and reindeer displays will not be affected. The use of wild animals in television and film production will not be affected. The programme for government includes a commitment to develop new licensing requirements to protect the welfare of wild and domesticated animals that are used for public performance or display, which will address a number of those other uses. Those requirements will replace the somewhat dated Performing Animals (Regulation) Act 1925.

I would now like to address some of the issues that are raised in the committee’s report. The committee is concerned about the definition of “wild animal”. However, the definition in the bill is clear and easily understood, and has been at least since the Zoo Licensing Act 1981. The definition includes two parts: a requirement that an animal not be

“of a kind that is domesticated”

and, equally important, a requirement that it is not

“commonly domesticated in the British Islands.”

Even if a circus was to argue that, in its opinion, its lions or tigers had become domesticated across successive generations of use, such animals would still be caught by the ban because they are clearly not

“commonly domesticated in the British Islands.”

Furthermore, I do not believe that including in the bill a definitive list of wild animals that are covered would be either proportionate or effective in addressing the aims of the bill. Nevertheless, I will seek to provide ministers with a power to create secondary legislation that is subject to affirmative procedure in which particular kinds of animals can be classified as wild or commonly domesticated in the British isles, or not, for the purposes of the bill. That power could be used in a targeted manner in any unforeseeable cases of genuine doubt in the future.

The committee has also expressed particular concern about the definition of “circus” in the bill. An ordinary meaning allows for flexibility and common sense at both enforcement and prosecution stages. A specific definition is, by its very nature, frozen in time and risks, because of its rigidity, capturing or excluding unintended enterprises. It could also provide a clear signpost to the potential loopholes that would be caused by that rigidity. We must not be naive: listing the constituent parts would also lay out a path to circumventing the ban.

There is a common public understanding of what “circus” means. In the 2014 consultation, the respondents did not have any difficulty understanding the word, and it is the word that is commonly used in other legislation that covers similar areas. I strongly believe that the approach that we have taken is most likely to achieve the purpose of the bill.

In the meantime, my officials will continue to engage with stakeholders to draft guidance for the bill. That should, I believe, be sufficient to allay unfounded fears about the definition and the danger of it being misinterpreted to include what are clearly not travelling circus activities.

I hope that my opening remarks explain why we are taking forward this important, proportionate and simple bill. It seeks to prohibit a singular practice that is morally objectionable to the people of Scotland: it seeks to do no more and no less. A more detailed Government response is available for people to consider; I think that most committee members will have had it relayed to them earlier today.

I move,

That the Parliament agrees to the general principles of the Wild Animals in Travelling Circuses (Scotland) Bill.

The Deputy Presiding Officer

Thank you, cabinet secretary. I call Graeme Dey, convener of the Environment, Climate Change and Land Reform Committee, to speak on behalf of the committee.

15:13  



Graeme Dey (Angus South) (SNP)

I am delighted to speak in the debate on behalf of the committee. I thank the members of the committee for their efforts in producing the unanimous report on the bill, all the stakeholders who gave evidence, and the clerks to the committee.

The committee recommends to Parliament the general principles of the Wild Animals in Travelling Circuses (Scotland) Bill and is supportive of its aims. However, the committee believes that it will achieve those aims only if several key concerns are addressed. Let me explore the specifics of those concerns and react, in so far as I can do so, to the response to them that we have recently received from the Government.

The most significant of the concerns is about the definitions in the bill. It defines a “wild animal” as

“an animal other than one of a kind that is commonly domesticated in the British Islands.”

It also provides a definition of “domesticated”, stating:

“an animal is of a kind that is domesticated if the behaviour, life cycle or physiology of animals of that kind has been altered as a result of the breeding or living conditions of multiple generations of animals of that kind being under human control.”

The committee believes that it would be helpful if the definition of “wild animal” in section 2 was made clearer. The Scottish Government suggested in evidence to the committee that a flexible definition is appropriate, which was supported by some stakeholders. However, local authorities and circus operators feel that the classification of animals as domesticated or otherwise is open to interpretation.

Local authorities also suggested that there may be circumstances in which veterinary assistance would be required to classify an animal in order to ascertain whether an offence had been committed. Although the committee accepts that flexibility can be helpful in some circumstances, we do not believe that operators and local authorities should be in any doubt as to what would be considered a wild animal.

The definition of domestication was also the subject of debate in the committee’s consideration of the bill. People who oppose the bill suggested that animals living in circus environments could be domesticated—and therefore not covered by the bill—due to changes in their behaviour being developed through their having been reared in captivity, including when it had taken place over several generations.

Similarly, those who support the bill proposed that the definition be removed in order not to suggest that domestication could be achieved from captive breeding and rearing over time. The fact that such views exist persuaded the committee that further consideration might be worth while, in order to nail down what is and what is not a “wild animal”.

The committee also feels that the rationale behind omitting a list of animals that would be covered should be revisited by the Scottish Government. The committee has suggested that such a list would provide clarity and could, if the processes are right, be updated to react to unforeseen circumstances.

I note the cabinet secretary’s comments in her formal response to the committee, which she has repeated this afternoon. I welcome her willingness at least to explore the development of an amendment to provide a regulation-making power to include or exclude animals that become the subject of genuine doubt as to whether they are wild. Members will want to reflect on her wider response on that, in due course.

I will continue with the theme of definitions. Perhaps the biggest elephant in the room—I suspect that will not be last pun we hear this afternoon—was the omission of a definition of “circus”. Although a definition of what constitutes a “travelling circus” is included, it is undermined by the lack of a clear idea of what is meant by “circus”.

The bill has been introduced to address the public’s ethical concerns about the use of wild animals in travelling circuses. The most recent such enterprise to visit Scotland that caused the public to express their views on the subject to the Scottish Government—a display, while they were wintering here, of lions and tigers from a show that contains only lions and tigers—would not, in the view of the committee, be covered by the bill. Similarly, the committee received several representations from stakeholders from both sides of the debate to the effect that any ambiguity would mean that the bill could apply to enterprises beyond those that it is intended will be caught by the bill, in particular due to the application of the ethical arguments for the bill to other animal acts.

The committee believes that the bill should be clear as to what acts will be covered. The committee heard evidence from Scottish Government officials suggesting that the term “circus” would be interpreted by courts using the “Oxford English Dictionary” definition, which includes references to elements such as “a circular arena” and “acrobatic” performances. The committee was also told that the omission of any one of those elements could mean that an act using wild animals would not be considered to be a circus. The ordinary or commonly understood definition was also advocated in evidence to the committee.

Not only does the committee believe that the bill’s reliance on such a definition opens the door to its purpose being undermined, it also considers that approach to legislating to be unsatisfactory. The law should be clear for participants and for enforcers without the need for immediate recourse to legal challenge. Let me pose a scenario: let us say that a show containing only lions and tigers was set up in a non-circular cage inside a major exhibition arena and no horses or acrobats were involved. Would that, beyond doubt, be captured by the bill?

The committee has recommended that a definition of “circus” be included in the bill. However, I welcome—as I am sure will the committee—the commitment to producing accompanying guidance with examples of what constitutes a circus, and to consider amendments that define “circus” without inadvertently capturing the likes of birds of prey displays or festive reindeer, or allowing circus enterprises to modify their offering in order to circumvent the ban.

The committee recommends that the accompanying guidance be ready as soon as the bill is passed so that there is no point at which legislation is in place without local authorities having supporting clarity. I hope that the cabinet secretary will confirm her intention in that respect, in due course.

Evidence to the committee suggested that the definition of “circus operator” should be extended to reflect the everyday hierarchies and employment scenarios that are at work in circuses. Having received the Government’s response to the report only last night, members will want to take time to reflect on its comments on that.

Although definitions occupied most of the evidence that was received on the substance of the bill, local authorities also explored proposals on potential additional enforcement powers. The committee proposed that such powers should be considered by the Scottish Government. The Government has provided a detailed response on that, on which members—individually and, perhaps, collectively—will come to a view.

Representations were also made to the committee on the potential wider impacts of the bill on the entertainment industry. The committee received evidence suggesting that moves to restrict the use of wild animals in travelling circuses could have an impact on, for example, Scotland’s attractiveness as a filming location. The committee has highlighted that evidence in its stage 1 report. The cabinet secretary has helpfully acknowledged the validity of such concerns, in as much as she will issue additional clarifying guidance reiterating that the bill is intended to capture only travelling circuses.

I have focused mainly on the substance of the bill, but I wonder, Presiding Officer, whether by way of conclusion I can turn briefly to the issue of further legislation on performing animals.

The Deputy Presiding Officer

Yes. We have a little time in hand.

Graeme Dey

On the day on which the bill was introduced, the cabinet secretary wrote to the committee to highlight the intention to review the operation of the Performing Animals (Regulation) Act 1925. Although that is welcome, there remain concerns about whether it was best to introduce the bill in isolation instead of including it as a part of more comprehensive approach.

Similarly, we sought assurances that at the end of the process there will be no gaps in clarity on whether the use of wild animals in static circuses is to be addressed. The detail that has been offered in response, indicating that new licensing requirements are planned to protect the welfare of wild and domesticated animals that are used in public performances and displays other than in zoos—which will cover static circuses—is again to be welcomed, as is the confirmation that a consultation will be undertaken and the affirmative procedure used for the subordinate legislation.

Finally, the committee believes that the decision to frame the bill based on an ethical basis has been difficult to justify, particularly in the light of evidence that would have supported a welfare-based approach. The committee does not question the value of the ethical arguments against the use of wild animals in travelling circuses, but it does not consider that they have been well utilised and, as I have stated, believes that the wisdom of what has been described as a “piecemeal” approach should be questioned. However, that does not detract from the fact—

Roseanna Cunningham

Will the member give way?

The Deputy Presiding Officer

I am sorry, cabinet secretary—the member must wind up now. [Interruption.] That is a fearsome look you are giving me, cabinet secretary, but I think that we really must move on. [Interruption.] Excuse me a minute—I am conferring with the clerk.

You may take a brief intervention, Mr Dey, but you will have to wind up very quickly after that.

Roseanna Cunningham

I would just like to ask my colleague whether he would seriously have preferred to have delayed all this for a number of years, because that would be the consequence of what he has just said.

The Deputy Presiding Officer

Briefly, convener.

Graeme Dey

As the cabinet secretary knows, I am reflecting the views of the whole committee, not just my own. I take her point on board, but that view was reached unanimously by the committee.

Regardless of what the report says, it does not detract from the committee’s support for the bill’s aims, and it looks forward to working with the Scottish Government to ensure that the aims can be delivered as effectively as possible.

15:22  



Donald Cameron (Highlands and Islands) (Con)

I commend the committee’s report and the convener’s comments, which we have just heard. The Scottish Conservatives will support the Government’s motion, and I want to reiterate many of the points that the convener has already made.

However, before I do so, I feel it necessary to point out that it is customary for the Government to respond in writing to the committee’s report prior to the stage 1 debate. Such a letter arrived in my email inbox shortly after 9 o’clock this morning, but, with the greatest respect, I think that a 14-page letter containing detailed points and arriving a mere six hours or so before the debate is insufficient. The Government’s failure to give adequate notice of a position that committee members can analyse and scrutinise properly respects neither the committee nor the wider work of the Parliament. Given that the timetable to which we are operating on the bill is being driven by the Government, not the committee, having a stage 1 debate with only the committee report to go on and limited time to digest the Government’s lengthy response means, inevitably, that the debate itself is prejudiced. I, for one, have simply not had enough time in the course of the day to go through the Government’s letter in detail.

That aside, I want, first, to assure the chamber that the Scottish Conservatives are committed to the highest standards of animal welfare. We are clear that those who abuse and inflict cruelty on animals should be punished in accordance with the law. The Scottish Conservatives support a ban on the use of wild animals in travelling circuses on ethical and animal welfare grounds. We do not believe that the majority of the public are either comfortable or satisfied with that on-going practice, albeit that there is no evidence that such a practice is under way in Scotland at this time.

The Wild Animals in Travelling Circuses (Scotland) Bill was discussed at a committee meeting on 27 June. As I did not join the committee until after that date, I was not there in person, but my colleagues Finlay Carson, Maurice Golden and Alexander Burnett were present. At that meeting, the committee’s Conservative members made it clear to the cabinet secretary that, in tackling the welfare of wild animals in travelling circuses, the bill did not go far enough; it needed to tackle the welfare of animals in static ones, too.

Let me move on to the bill. We support the principles behind the bill, but I regret to say that it requires much improvement. Broad criticisms of the bill include that it risks criminalising shows and events that have a good track record of animal welfare. Many examples of such events have been given, but they include reindeer at Christmas markets, falconry displays and llamas at the Royal Highland Show. This issue is a major concern across the country, but particularly for those of us who represent rural areas, where agricultural shows and Highland games are often part of the lifeblood of the summer economy. The cabinet secretary was trenchant in her views about that in committee and again today, but I venture that the bill does not give similar comfort.

I will concentrate on a couple of areas, the first of which is legal definitions. I can almost sense former colleagues in the legal profession rubbing their hands at the prospect of this legislation, given the issues of interpretation that the bill throws up in its present state. Strangely for a bill that is all about circuses, it does not define the word “circus”. As the cabinet secretary said, there is sometimes sense in having a general, flexible definition, but I submit that there is not in this case. The bill defines “travelling circus”, albeit that the word “circus” in that phrase is not defined. “Travelling circus” is currently defined as the public’s perception of a travelling circus, which is vague, open to all sorts of interpretations and risks criminalising people who put on a show or event to which animals have to be transported. That leaves anyone who tries to comprehend the bill in great difficulty.

There is also an issue with the term “wild animal”. The current definition of “wild animal” is an animal that is not “commonly domesticated” in the UK. Where does that leave reindeer from Scandinavia or llamas from South America, which would be classed as wild animals and might therefore be banned from being on show at public events?

Given those issues, I urge the Government to consider whether having a detailed list of defined species, which it could add to or subtract from at will through secondary legislation, would be a more sensible way forward. That might avoid some of the issues that my committee colleagues have mentioned and which I am sure others will go on to mention.

Unlike the Foreign Secretary, I will resist the temptation in closing to make reference to a roaring lion, but let me be clear that we accept that robust legislation must be in place to ensure that wild animals are properly protected. We welcome the creation of the offence and support the overarching principles of the bill, but it needs serious work before it is in a fit state to be enacted.

The Deputy Presiding Officer

Thank you very much, Mr Cameron. I hope that we have run out of animal references, but we probably have not. I call David Stewart to open on behalf of Labour—have I just sabotaged something?

15:27  



David Stewart (Highlands and Islands) (Lab)

Thank you, Presiding Officer. I rise to speak in support of the general principles of the bill. However, a number of recommendations that have been proposed will, in my view as a member of the Environment, Climate Change and Land Reform Committee, improve the bill at stage 2. Like Donald Cameron, I have only just received the cabinet secretary’s response to the committee’s recommendations, so I have not had the opportunity fully to assess the Government’s potential position at stage 2. Nevertheless, other members have referred to a number of key strands, including animal welfare versus ethics, the scope of the bill, definitions and enforcement.

Animal welfare organisations such as the well-respected OneKind believe that there are strong animal welfare justifications for a ban on the use of wild animals in travelling circuses. In its public petition to the Parliament, OneKind stated:

“A travelling circus combines a number of specific characteristics (including extreme confinement, frequent transport and relocation, and training for performance) which create an environment where the needs of wild animals cannot be met. This combination is not found elsewhere, even in zoos where wild animals are kept captive. It increases the risk of stress and, in some cases, ill-treatment of the animals, and makes effective inspection and regulation very difficult.”

Investigations into UK circuses in recent years have documented shocking examples of severe habitual abuse of animals. For example, in 1999, individuals from Chipperfield’s Circus were found guilty of cruelty to a chimpanzee and an elephant, and in 2009, Animal Defenders International filmed the beating of elephants prior to performance at the Great British Circus.

Earlier this year, a further exposé by the same organisation showed an aged arthritic elephant named Anne being repeatedly beaten and abused by a member of staff in the Bobby Roberts Super Circus. Video footage also showed a camel being spat at while tethered in its stall. Both of those animals have now been rehomed. Prior to that, however, they were regularly brought on tour to Scotland. The elephant was too ill to perform traditional tricks but was used for photographs in the circus ring, and the camel was also exhibited after performances.

Around half of Scottish local authorities have a policy of not letting public land to circuses with wild animals. However, the same circuses were shown to have used wild animals in defiance of specific licensing or a licence condition that was imposed by some councils.

Since the time of the public petition, an authoritative review of the animal welfare issues—by Jo Dorning and others—has been published by the Welsh Government, and was referred to several times during evidence that was given to our committee.

In its 2014 consultation, the Scottish Government acknowledged the strength of public concern about animal welfare and the strong body of opinion that the animals’ five welfare needs, as set out in the Animal Health and Welfare (Scotland) Act 2006, could not be catered for in relation to wild animals in a travelling circus environment.

Other members have talked about definitions, and I want to say a little about that issue as well. The Scottish Government’s position is that anyone enforcing the legislation would know what a circus was and that the courts would be well placed to interpret that if there should be any doubt. However, I note the points that were made by local authorities regarding enforcement activities, where the court process is only the culmination of the process. Council officers need to have a clear basis for initiating action and must feel confident that the legislation is applicable before they act.

The discussion in the committee referred to the “Oxford English Dictionary” definition. However, that could cause confusion to anyone who was seeking to rely on Scottish Parliament proceedings for an interpretation. Under the circumstances, I endorse what the convener said about the necessity of including in the bill a definition of the word “circus”.

The definition of the term “wild animals” in the Dangerous Wild Animals Act 1974 provides an interesting starting point, but it would require refinement. The bill’s current definition of “wild animal” refers to an animal that is not

“commonly domesticated in the British Islands”,

which accords with the existing definitions in the Animal Health and Welfare (Scotland) Act 2006 and the Zoo Licensing Act 1981. However, the definition of “domesticated” in section 2(2) is unclear and requires amendment. Domestication is a process that takes hundreds or thousands of years, and that is not reflected in the concept of “multiple generations of animals”.

I am conscious of time, so I close by saying that local authorities need to be resourced to deliver on their animal welfare powers or they will not be able to use them effectively.

I believe that the bill is a step in the right direction for animal welfare. I urge the Scottish Government to make improvements to the bill at stage 2, reflecting the recommendations of the Environment, Climate Change and Land Reform Committee. However, I support the general principles of the bill.

The Deputy Presiding Officer

We come to the open debate, and I ask for speeches of four minutes. One member who is due to speak has forgotten to press their request-to-speak button—I will not name them.

15:32  



Emma Harper (South Scotland) (SNP)

I am a member of the Environment, Climate Change and Land Reform Committee, which is responsible for scrutinising the bill, and I thank the members, the clerks and everyone else who has been involved for the work that they have done.

The Scottish Government has put forward an argument for a ban on wild animals in travelling circuses, using ethical grounds. That is outlined in the policy memorandum, and I support the Scottish Government’s bill. Today, I will focus on the ethical arguments.

The three areas that it has been suggested have ethical implications are the impact of travelling environments on an animal’s nature or behaviour; respect for animals; and the ethical costs versus the benefits. There is also the argument that of the five freedoms, which were developed by the Farm Animal Welfare Committee, the fourth and fifth freedoms—the

“Freedom to Express Normal Behaviour”

and the

“Freedom from Fear and Distress”—

are where the ethical concerns lie.

In considering the impact of the travelling component of the circus, we must consider the stress and trauma to the animals of being coerced out of the environment that they are normally in and being loaded into a vehicle, which is a strange, alternative environment, and the further stress and fear of the travelling itself—the movement, the vibration, the noise, the lights and the smells. Mike Flynn of the Scottish Society for the Prevention of Cruelty to Animals stated in evidence to the committee that the loading and unloading of animals was the issue that caused the stress. The requirement to secure animals, especially big cats, to keep the animals safe—and to keep the public safe from any potential escape—is also a concern.

I struggle to see how any of that could satisfy the animal’s need for

“Freedom to Express Normal Behaviour”

and the

“Freedom from Fear and Distress”.

The ethical concern around respect is whether it is right and respectful to coax, coerce, train and tame wild beasts to perform for human entertainment or amusement. It is not normal behaviour for wild animals to perform for humans under the direction of another human.

I asked the cabinet secretary whether it is

“just time that we stopped having wild animals, such as tigers and lions, in circuses”.—[Official Report, Environment, Climate Change and Land Reform Committee, 27 June 2017; c 8.]

That is the third aspect that I will speak about today, with that same question: is it time? There was a time, about 100 years ago, when a wee lass who grew up in Stranraer, like I did, would have no way to see wild animals, such as lions or tigers, except for something like a travelling circus. There was no television or internet; there were no David Attenborough DVDs. That is no longer the case in 2017. I struggle to see the potential educational benefits outweighing the ethical costs.

There is already a history of displays or exhibitions in circuses being stopped on ethical grounds. We no longer display “Siamese twins”—conjoined twins—in circuses. We no longer exhibit “The Wolfman” or “The Bearded Lady”—that is a medical condition called hypertrichosis. We no longer display persons with birth defects such as Joseph Merrick, who was known around the world as the elephant man. There was a time when people like him were displayed in travelling circuses for the amazement, amusement and entertainment of paying customers, but, eventually, the time came when that archaic practice was no longer acceptable ethically.

I welcome the bill—I get the ethical argument and I get the fact that restricting the freedom to exhibit normal behaviour, which is what happens in a travelling circus environment, is not ethical, whether the animal is a lion, tiger, elephant or any other wild animal. Wild animals should not be tamed, trained or otherwise coerced to perform for the amusement of human beings. It is unethical and it is time to stop it. Nineteen countries have already implemented a ban.

The Deputy Presiding Officer

I am afraid that you must conclude now.

Emma Harper

I will conclude, Presiding Officer. Nineteen countries have already banned it, so it is time for Scotland to lead the way for the rest of the UK.

The Deputy Presiding Officer

Sometimes I do not win. [Laughter.]

15:37  



Peter Chapman (North East Scotland) (Con)

The debate is about wild animals, so for once I do not need to declare an interest. [Laughter.] To be honest, when I am in a pen with a newly calved coo, I sometimes think that I would be better off with a lion.

I wonder why the bill is being pushed through Parliament, as Scotland has not seen a travelling circus that uses wild animals for many years; there is no possibility that we will see one any time soon. Nevertheless, I welcome the bill and I support the principle that a circus should not be allowed to use wild animals as performance pieces. However, although I welcome what the bill is trying to do, there are far too many loopholes and a lack of clear definitions. It is poorly drafted and simply not fit for purpose.

One of my main concerns is that the current bill might criminalise shows and events that display animals yet have a good record of animal welfare and are ethically sound—many local businesses might be concerned. The Ythanbank reindeer park at Ellon allows children to visit Santa’s real reindeer during the festive season. In May, alpacas from a farm in Fife travelled to the University of Dundee for students to visit in a destressing exercise to emphasise the importance of maintaining good mental health. Will all those travelling and seasonal events be impacted by the bill? Unless it is amended and more detail and clarity are provided on its poorly defined terms and what a “wild animal” is, all of those events are at risk.

The bill defines a “wild animal” as

“an animal other than one of a kind that is commonly domesticated in the British Islands.”

That is open to interpretation. The Royal Society for the Prevention of Cruelty to Animals defined wild animals used in circuses when it stated:

“Some circuses in Britain currently tour with wild animals, including zebras, lions, snakes, tigers and camels”.

I believe that the Scottish Government has a duty to take note of that and to list the animals that the bill seeks to protect. The bill should not be subject to interpretation. It needs to be much more clearly defined.

The bill provides no clear definition of “travelling circus” either, leaving it open to debate and the public’s and laymen’s perception of a travelling circus. Again, that is not something that should be subject to interpretation. There is no mention of static circuses, which is yet another loophole that would see the bill failing animals if a static circus were set up in Scotland.

The bill fails to address the issue of transportation. There is nothing in it to stop travelling circuses moving through Scotland, as long as they do not perform. For example, they could travel through Scotland to get a ferry to Ireland.

I agree with the committee that the bill as drafted does not fully address the issues that it is supposed to cover and is at risk of capturing animal performances and shows that it might not be intended to capture. It is vital that the Government addresses those issues.

It is the Government’s job to introduce clear legislation that does what it sets out to do, not legislation with loopholes and definitions that are subject to public perception—that is lazy and unacceptable. The Government needs to do better for the clear benefit of the animals that it wishes to protect.

15:41  



Clare Adamson (Motherwell and Wishaw) (SNP)

As an elected parliamentarian and councillor, I have been pleased to make links over the years with the Scottish Showmen’s Guild. On a number of occasions, I have attended their annual lunch to hear about their history, traditions and commitment to the entertainment of our communities. On one occasion, I was thrilled to discover that the grandfather of my host had been a lion tamer in London. I say “thrilled” because it conjured feelings of the unexpected, the bizarre, the amazing and the exotic. As the granddaughter of a steelworker, I was suddenly within touching distance of a romantic, dangerous, alien history and a lifestyle that I knew of only from my story books and imaginings as a child, but which was so real for the families of the Showmen’s Guild. I pictured Mucha-esque billboards with ringmasters in fabulous redder-than-red jackets, cartoon-like strongmen and exotic animal displays—images that are memories of a thankfully bygone era.

At a Showmen’s Guild fair today, someone would not even find a goldfish in a bag as a prize. That was another era, and our values have changed, as my colleague Emma Harper so eloquently outlined. Modern society no longer has a taste or tolerance for the thrills and exhibits of the past. Documentaries such as “Blackfish” have altered our views on the display, captivity and ethical use of animals.

I am not a member of the committee, but I thank it for its substantial work on the bill at stage 1 and I am delighted that it supports the general principles. I would like to drill down into one area that the committee examined, which is the meaning of “wild animal”. It is extremely important that we get that right.

My interest in the area comes from the work of Russian geneticist Dmitry Belyayev. He hypothesised that the anatomical and physiological changes seen in domesticated animals could be the result of selection based on behavioural traits. He conducted an experiment on silver foxes over 40 generations. Animals were selected for the breeding process based on temperament and there was a control group. He rated each fox’s tendency to approach an experimenter standing in front of its home pen, as well as each fox’s tendency to bite or be aggressive towards the experimenters. They were able to breed out aggressive and fearful traits and change the foxes by selecting fewer than one fifth of them for breeding.

There were changes to the appearance and behaviour of the animals that were bred to be domesticated. They wagged their tails and they were happy or excited to see people. Further, their fear response to new people or objects was reduced. The first physiological change detected was in the hypothalamic-pituitary-adrenal axis. That system is responsible for the control of adrenaline, which is a hormone that is produced in response to stress and controls fear-related responses. The domesticated foxes had significantly lower adrenaline levels.

I give that example to the chamber because it explains domestication and informs us about what it—as opposed to training—means. To my mind, genetic and biological changes that took hundreds of thousands of years to make in domesticated breeds such as dogs cannot possibly have been made in animals—such as those held in circuses—that have not been selectively bred from a very small group. They are wild animals, and should be considered as such.

15:45  



Colin Smyth (South Scotland) (Lab)

Presiding Officer, as your deputy on the cross-party group on animal welfare, it is a privilege to speak in a debate that I hope will take Scotland a step forward in ending the cruelty and distress that are inflicted on animals in travelling circuses. Later today, I hope that we will be unanimous in our vote to approve the principles of the bill, so that we can progress to more detailed consideration and—crucially—amendment.

This week saw the birthday of one of the greatest practitioners of non-violence: Mahatma Gandhi. He did not distinguish who he included in that non-violence, and he once said:

“The greatness of a nation and its moral progress can be judged by the way its animals are treated.”

There is nothing great about the treatment of animals in a travelling circus, from either an ethical or an animal welfare point of view. The animals are faced with cramped and restrictive accommodation, without the space to recreate their natural behaviour, to explore, to socialise and to find food as they would in the wild. From stress, to ligament damage, to disease, the behavioural, psychological and physical impacts that such conditions have on the animals are clear, as is the impact of the work that they are forced to do in order to perform. So-called tricks are learned through intensive training and there are many well-documented instances of trainers using abuse and negative reinforcement.

The performances themselves, in the presence of human audiences, often cause distress to the animals. I am sure that we are all aware of examples of that in our constituencies and regions, and—I say this for the benefit of Peter Chapman—not that long ago. Although I did not attend, I remember the Bobby Roberts Super Circus touring Dumfries and Galloway with its aged, arthritic elephant, named Anne, who was mentioned earlier by David Stewart. Having been taken from the wild in Sri Lanka, Anne was used for entertainment for more than 50 years, right up until 2011, when her last trick was to stand and pose for photographs with audience members for £5 a time, before she was eventually rehomed after protests at the appalling treatment that she received. That example shows that existing regulation or monitoring of the industry did not and does not work and that, without a full ban, the mistreatment of animals such as Anne is inevitable.

That is a view that appears to have overwhelming support. Public consultation on the bill showed that 98 per cent of respondents supported a ban on travelling circuses keeping wild animals for performance and 96 per cent believed that a ban is the only way to end such cruelty. Respondents were clear in their comments about the physical and psychological cruelty to which animals are subjected, describing it as “archaic” and “barbaric”.

The bill is a positive step towards relegating that cruelty to the history books. However, I very much commend the work of the Environment, Climate Change and Land Reform Committee in highlighting problematic definitions, potential loopholes and, ultimately, the need for the bill to be strengthened, and I welcome the 20 recommendations in its report. In particular, I echo the committee’s calls for the bill to include a list, which can be easily updated and amended, of animals covered by the legislation, to ensure that ambiguity over the distinction between domesticated and wild animals does not prevent the bill from working as intended.

I also reiterate the importance of not only making enforcement of the bill statutory, but taking steps to ensure that local authorities have the resources to enforce it. Council officials expressed to the committee their concerns about the practicality of enforcement, and Mike Flynn of the SSPCA expressed his doubt over whether enforcement powers would be used. The discretionary aspect of enforcement should be removed, but if the burden of enforcement is to be devolved to local authorities, they must also receive the necessary resources.

I hope that the Scottish Government will accept the changes to the bill that the committee has proposed, so that we will have a thorough and robust ban. I understand that the Government has now responded to the committee, but that that was only a few hours ago. I point out to members who are not members of the committee that we have not yet seen that response.

The bill is a step in the right direction for animal welfare but, in all sincerity, it is one that is badly needed. The failure of the Government to ban electronic shock devices or to consult on a ban on snaring, and its recent decision to reintroduce tail docking, together with concerns that it will not go beyond Lord Bonomy’s recommendations and ensure a proper ban on hunting, all seriously undermine its credibility when it comes to animal welfare. We badly need steps such as the bill if our “moral progress” as a nation is indeed to be judged in a positive light.

15:49  



Mark Ruskell (Mid Scotland and Fife) (Green)

As a member of the Environment, Climate Change and Land Reform Committee, I join the convener in thanking all the stakeholders who gave evidence and the clerks, who did a great job in herding the evidence into another excellent report for the committee.

This should be a victorious moment, because banning wild animals in travelling circuses is absolutely the right thing to do on both ethical and animal welfare grounds. Emma Harper really nailed the ethical argument in her speech. Green MSPs will back the bill at stage 1.

I moved an amendment to the Animal Health and Welfare (Scotland) Bill more than a decade ago that would have introduced a ban but, at the time, it was supported only—curiously—by SNP members. A ban is long needed and long overdue.

However, what should be a moment of celebration about the Wild Animals in Travelling Circuses (Scotland) Bill feels more like a headache because of some of the poor drafting. Many of us on the committee who started with very different positions on the bill have ended up sharing some of the same grounds for concern.

Let us take two of the most fundamental definitions. What is a “circus”? What is a “wild animal”? In evidence to the committee, the Scottish Government officials said that if it looks like a circus, walks like a circus and talks like a circus, then it is a circus. They also said that we should not expect people to “overthink” the definition of a circus—except, of course, that there are people who are paid exactly to do that, called lawyers.

We heard from a witness with a performance act with lions and tigers. He certainly talked like a circus when he gave evidence to the committee, but no one can tell him whether he would be a circus under the bill because he does not have a tent or clowns. Simply leaving it for the courts to decide is not good enough.

On the definition of “wild animal”, again, there needs to be much more clarity. The word “domesticated” is unhelpful and could be used by circus operators to argue that animals that have evolved over millions of years in the world are actually domesticated because they have lived in captive training environments for several generations. Certainly the taxonomy required to add a list of wild animals to the bill would not be too hard—a list would not have to name every individual wild animal on planet earth.

Given that more than a decade has passed since the wild animals in circuses issue was raised, I am perplexed about why the Scottish Government has not followed the Welsh Government route of updating legislation for all animal performances—of which travelling circuses are just one type—at the same time. That would have addressed the problem that the bill has in targeting the plight of wild animals in travelling circuses while simply ignoring those in static circuses.

We heard contradictory evidence from the cabinet secretary about the importance of the travelling environment being an ethical concern rather than an animal welfare issue, which had us, quite frankly, chasing our tails. Surely it would have been better to bring in a proper framework that places animal performances into categories that see them banned, regulated further or left alone.

The ethical basis for the bill was based on circuses being the top public concern, but no consultation or polling was conducted to understand the public’s view on greyhound racing, for example; yet those and many other types of animal performances raise ethical and welfare questions of varying degrees that need to be addressed.

The Government has much to do to make the bill look like a ban, walk like a ban and talk like a ban. I look forward to amendments being introduced at stage 2.

15:53  



Liam McArthur (Orkney Islands) (LD)

I thank Graeme Dey and his colleagues on the Environment, Climate Change and Land Reform Committee for the work that they have done.

I recognise the overwhelming support in favour of a ban on the use of wild animals in circuses, and the Liberal Democrats will gladly support the bill’s general principles later today. We welcome the bill but, as many others have identified, we believe that there is room and considerable scope for improvement of it. The committee has helpfully highlighted a number of those areas.

The cabinet secretary reiterated the ethical basis for the ban. There are clearly ethical reasons for such a ban, but the committee is right to raise awareness of the shortcomings of that approach. Furthermore, the ethical basis is difficult to justify in the light of the evidence, which supports a welfare-based approach.

The British Veterinary Association has reminded us that the welfare of animals in circuses is emblematic of how we treat all animals that are under the care of humans. At stage 2, when the detailed scrutiny of legislation gets under way in earnest, considerable work has to be done in that regard. Similarly, notwithstanding the points in the cabinet secretary’s speech, more work is needed to address the ethical and welfare considerations that arise from the use of wild animals in static circuses—Mark Ruskell and others picked up that point.

The Scottish Government relied on the premise that ethical objections to the use of wild animals in travelling circuses do not apply to the same extent to other types of animal performance or display. The cabinet secretary may be justified in that assertion but, to date, not enough evidence has been set out clearly or compellingly.

The problem to which colleagues on the committee have drawn the most attention, as anyone who reads the committee’s report will see, is with the definitions of “circus”, “circus operator” and “wild animals”. In her opening speech, the cabinet secretary sought to offer reassurance on those definitions again but, at the moment, it looks as if the bill will open up a bit of a paradise for lawyers rather than provide suitable and appropriate protection for animals in circuses.

It is critical that we get the definitions right, not least—as David Stewart and others emphasised—because we need to ensure that local authorities, which will be left to enforce the new restrictions, have the clarity that they require. We do not want decisions to be challenged in court, and the matter will fall to local authorities in the first instance. Whether the issues should be dealt with in the bill or in subsequent guidance, most of the work that needs to be done at stage 2 will focus on them.

The bill and the proposals that it seeks to introduce are welcome. They reflect our values as a society and the importance that we attach to the high standards of animal welfare that we want to see. I look forward to supporting the bill’s general principles at decision time.

15:56  



Angus MacDonald (Falkirk East) (SNP)

As a member of the ECCLR Committee, I am pleased to contribute to the debate, not least because it is a further step towards Scotland leading the way for the rest of the UK in tackling the important ethical issue of the use of wild animals in travelling circuses. It is also welcome because the use of wild animals in circuses has been the subject of deliberation by campaigners for decades, with part of the existing framework dating back to the Performing Animals (Regulation) Act 1925.

The cabinet secretary alluded to this but, for the record, it should be noted that the UK Government announced in March 2012 that it would

“bring forward primary legislation at the earliest opportunity to ban circuses from using wild animals on ethical grounds.”

However, as of this year—more than three years after the initial offer of a joint UK bill—no date had been set for a bill to be introduced in the UK Parliament, so the issue seems to have gone off the UK Government’s radar.

We have heard contributions from members that covered a number of issues, including the need to tighten definitions—particularly the definitions of “travelling circus” and “wild animals”. The ethical and welfare arguments have also been well aired. I will concentrate on enforcement and the need to support local authorities in their enforcement duties.

In its stage 1 report, the committee expressed the view that enforcement powers in the bill could go further, particularly given the evidence that we took from local authorities, which called for additional powers to intervene to prevent shows from taking place. The bill does not make it a statutory duty for local authorities to enforce the powers, so enforcement will, in effect, be discretionary.

I have some difficulty with that, and I wonder what the point of introducing the bill is if it will not remove the discretionary element of the local authority enforcement powers. However, I welcome the assurance that the cabinet secretary gave in evidence to the committee that any non-enforcement of the bill by local authorities could be solved by ministers appointing their own inspectors. As she told the committee,

“The bill also allows Scottish ministers some flexibility to appoint inspectors, so it will not be up to local authorities alone to do that. There is a power in the bill for ministers to appoint an alternative inspector if we think that certain local authorities are not enforcing this legislation.”—[Official Report, Environment, Climate Change and Land Reform Committee, 27 June 2017; c 13-14.]

That would be fine if we were not dealing with travelling circuses but, as it says on the tin, they travel, so there is every possibility that, by the time a Scottish Government-appointed inspector was alerted to a local authority’s non-enforcement, the travelling circus could have moved on. I therefore urge the cabinet secretary to re-examine the issue and consider removing the discretionary element of the local authority enforcement powers.

In addition, guidance is proposed to support local authorities in their enforcement duties. Given the importance of that document for interpretation, the committee considers that it should be available to councils as soon as the bill is enacted, if it is passed.

I look forward to further consideration of the bill at stage 2 in the hope that we can get it right by the time it reaches stage 3, so that, once enacted, it will enable the ban on wild animals in travelling circuses to be put into effect immediately. Implementation of the ban should be accompanied by the issuing of the appropriate guidance, which the committee has called for.

16:00  



John Scott (Ayr) (Con)

I declare an interest as an honorary member of the British Veterinary Association.

The Scottish Conservative Party and I welcome the bill’s general principles. I know that the British Veterinary Association, OneKind and others have campaigned for a ban on the use of wild animals in travelling circuses for many years, as they and we believe that the needs of non-domesticated wild animals—in particular, their accommodation needs and their need to express normal behaviour—cannot be met in a travelling circus.

For the time being, Scotland’s legislative benchmark is the Animal Health and Welfare (Scotland) Act 2006 and the five welfare needs of animals that it details. In this stage 1 debate, we seek to build on that position. That said, we note the 2007 review by the Department for Environment, Food and Rural Affairs, which found that there was a lack of evidence to support a science-based ban on the use of wild animals in travelling circuses. On the other hand, we note the scientific review that was carried out for the Welsh Government post-2007, which concluded that

“captive wild animals in circuses and other travelling animal shows do not achieve their optimal welfare requirements”.

Although it is surprising that we in Scotland are relying on work that has been carried out elsewhere in the United Kingdom to support the bill, that is probably because no wild animals in travelling circuses are visiting Scotland at the moment and none is likely to do so in the foreseeable future.

The ethical case for the bill has, at best, been poorly made by the Scottish Government, notwithstanding Emma Harper’s valiant attempts to make it. It is much easier to make the case for such a ban on animal welfare grounds, and the Government’s response to paragraph 130 of the stage 1 report tacitly acknowledges that it would be much more sensible to take forward the bill on welfare grounds.

We must seek to improve the bill to make it fit for purpose, which it currently is not. As others have said, the term “travelling circus” must be properly defined, and I welcome the Government’s intention to provide a guidance note for the bill that will

“include guidance and examples around the definition of circus.”

I also welcome the Government’s willingness to consider appropriate amendments of the definition, although I might leave that possibility to finer legal minds than mine, given the parameters that the Government has set for its acceptance of such amendments.

In addition, a list of wild animals should be provided in the bill. It need not be exhaustive, but it should be indicative and it should be able to be added to or subtracted from by statutory instrument, as appropriate, over time. I note and welcome the Government’s response to that suggestion, but I nonetheless urge it to lodge an appropriate stage 2 amendment to create a list of wild animals.

When there is an opportunity for principles, policy and definition to be expressed clearly in any bill—not just this one—the opportunity should be taken and as little as possible should be left to subordinate legislation. My recollection is that the cabinet secretary adheres to that view.

Local authorities need clear guidance on the enforcement duties that will be expected of them under the bill, so I welcome the Government’s response to paragraphs 315 and 320 of the report. In particular—unlike my colleague Angus MacDonald—I welcome the level of discretion that it is intended will be given to local authorities and I welcome the intention not to overburden local authorities with potential extra expenses.

We support the general principles of the bill, but there is still much work to do to make it fit for purpose. The Scottish Conservative and Unionist Party will, of course, work constructively with the Scottish Government and others towards that goal.

16:05  



Kate Forbes (Skye, Lochaber and Badenoch) (SNP)

It is great to have this debate in the chamber after lengthy discussions in committee. We spent a number of hours taking evidence on and discussing the bill—I can only presume that those who watched the live stream were tempted to whistle a mash-up of “Old MacDonald Had a Farm” and “In the Jungle” as we talked about sheep, cows, reindeer, llamas, camels and even, courtesy of Emma Harper, ligers.

To move on to the serious matter of the debate, it is clear that there was in the committee and continues to be in the chamber unanimous support for the principles of the bill. When the bill is passed, Scotland will lead the way for the rest of the UK in tackling the important ethical issue of the use of wild animals in travelling circuses.

I am pleased to follow a number of excellent speeches. In highlighting their support for the bill and noting areas where they feel that it could be strengthened—particularly around definitions—others have said much of what I might have said. To avoid going over the same ground, I will go back to basics and, as the last speaker in the open part of the debate, remind members why we are here in the first place.

I recognise the work of Mark Ruskell and others when a similar ban was proposed 10 years ago, and I agree with Liam McArthur that a ban on the use of animals in travelling circuses and our discussions around the issue reflect our values as a society.

The unanimity in the chamber reflects the broad consensus among the public around a ban on the use of wild animals in travelling circuses. In early 2014, the Scottish Government conducted a public consultation on the use of wild animals in travelling circuses in Scotland in order to identify ethical concerns and gauge public support for—or opposition to—a Scottish ban.

It is probably fair to say that the use of wild animals in travelling circuses has caused discomfort to many people for many years, including those who actively fight for animal welfare and those who have respect for animals. The majority of respondents to the consultation supported a ban: 98 per cent supported a ban on performances by wild animals, and 96 per cent supported a ban on the exhibition of wild animals.

However, I accept that the consultation is not the main reason why the bill is before us today. I remind members of the three ethical arguments for introducing the bill. The first is the impact on our respect for animals that are forced to do unnatural tricks and acts for public entertainment that cause them harm. The second is the impact on wild animals of travelling environments, in which they are kept in temporary mobile accommodation for long periods and transported over long distances. Finally, there are the ethical costs and benefits—in other words, the weighing up of whether the ethical challenges, which are probably fairly obvious to us, had any benefit. When the benefit was seen to be minimal, it was deemed that we should introduce legislation to bring in a complete ban.

It is also important that we assure circuses, other shows and events more generally that the bill should not be a threat to their work or to entertainment services. I have been contacted by constituents—they know who they are—seeking confirmation that the bill will not affect the good work that they do. It is vital that we assure those who do not display wild animals and whose work does not constitute a travelling circus that they can continue to provide excellent entertainment services.

I am delighted that the bill will see Scotland leading the way in tackling the important ethical issue of the use of wild animals in travelling circuses.

16:09  



Claudia Beamish (South Scotland) (Lab)

Yesterday was world animal welfare day. As we have heard this afternoon, we should all work together to sharpen the bill and to develop further protections for the future.

OneKind reminds us that bans have already been introduced in at least 34 countries around the world, including 19 European Union member states. It says that banning the use of wild animals in travelling circuses in Scotland is a forward-looking and progressive act that will lead the way for the rest of the United Kingdom, and it urges members to support the bill at stage 1.

Although the ECCLR Committee and Scottish Labour support the bill’s principles, as members have said, its present form has necessitated a significant amount of committee work and consideration, leading to our stage 1 report recommendations to the Scottish Government to make it fit for purpose. It is disappointing that the cabinet secretary’s response to our report was only available this morning, meaning that there has been little time to consider it.

I intend to focus on three issues: static circuses, definitions—about which I will make a brief comment—and enforcement.

When they gave evidence, the cabinet secretary and a Scottish Government official noted that the travelling aspect of the use of wild animals in travelling circuses was not a primary concern. It therefore seems illogical not to re-examine the use of wild animals in static circuses, too. I acknowledge that a stage 2 amendment would be inappropriate as that issue has not been consulted on in relation to the bill, but I ask the Scottish Government to seriously consider the issue as soon as possible.

In relation to the definition of “wild animal”, it is positive that in her response to our report, the cabinet secretary stated:

“I would be willing to explore a possible amendment giving a regulation-making power to exclude or include specific animals as ‘wild animals’ that might be used in cases of real doubt in future. Regulations could be used when necessary following the coming into force of the Bill to remove doubt in particular cases where there is uncertainty as to which category a particular kind of animal falls into. That could be either to include or exclude an animal as ‘wild’.”

Like a number of members, I still think that a list in regulations, at least, that could be added to and amended is the best way forward. I am also of the opinion that the removal of references to domesticated animals in the bill would bring clarity as we go forward.

As Angus MacDonald mentioned, the committee considers that the enforcement powers in the bill could go further and supports evidence that was received from local authorities calling for additional powers to intervene to prevent shows from taking place. David Kerr of Argyll and Bute Council said:

“as things stand, our only recourse currently would be to take the person to court. I do not know whether any of you have been involved in court cases recently”—

I hope that none of us has—

“but”

taking

“a case to court is not a quick process”.—[Official Report, Environment, Climate Change and Land Reform Committee, 6 June 2017; c 22.]

The committee recommendation is that the Scottish Government adopts that suggestion from local authorities and gives them powers to serve notices, to issue fixed-penalty notices and to obtain records.

I understand the argument in the cabinet secretary’s response that

“the only question is whether or not the circus operator has caused or permitted a wild animal to be used in the travelling circus. All other activities ... are outwith the ambit of the Bill”.

However, I ask her to look very carefully at whether a stop notice would be as disproportionate as she said that it would be, or whether it would be possible to find a way forward on that issue to provide clarity.

I thank the clerks, and I reflect again on how well the committee appears to have worked together on this complex issue; it was perhaps more complex than it would have been if there had been more clarity in the bill at an early stage.

We support the principles of the bill and we will continue to support them and many other welfare and ethical issues involving animals in the future.

The Deputy Presiding Officer

I call Finlay Carson. You can have a generous six minutes, Mr Carson—but not too generous.

16:13  



Finlay Carson (Galloway and West Dumfries) (Con)

Today’s debate has been constructive with many valid and important points made about the bill. The committee convener addressed concerns over definitions, which raises the first question: is Graeme Dey a tame wild politician or a wild domesticated politician? Has his domestication taken place in this semi-circus over the many years that he has been here?

Graeme Dey mentioned the elephant in the room, and I wondered whether he was referring to Donald Cameron’s wonderful elephant design tie. We were also almost treated to some songs by Kate Forbes.

Although there have been plenty of puns during the debate, that should in no way detract from the seriousness with which the committee and my colleagues on the Conservative benches treat the subject of animal welfare. As my colleagues Donald Cameron, Peter Chapman and John Scott have eloquently set out during the debate, the Scottish Conservatives support the general principles of the bill. That support reflects my colleagues’ commitment to the highest standards of animal welfare. We support a ban on the use of wild animals in travelling circuses on ethical and welfare grounds through the delivery of robust legislation.

However, as we have heard today and in the committee, members of all parties have a range of concerns about the current drafting of the bill. I hope that the cabinet secretary takes those concerns on board.

We on the Conservative benches support the findings and recommendations in the Environment, Climate Change and Land Reform Committee’s stage 1 report, which I take this opportunity to commend.

Why the rush? There are concerns that the apparent need to rush the bill through will result in yet another piece of weak legislation from the Scottish Government that will fall down or be ineffective in the courts. Angus MacDonald said that Scotland would be leading the way. That is all very well, but we need to show that legislation passed by this Parliament is good and robust. Such legislation might address Mr MacDonald’s concern about councils’ confidence in taking action in future.

As the committee’s report sets out, and as many of my colleagues have reiterated in the debate, travelling circuses that use wild animals in the circumstances covered by the bill have not visited Scotland for many years, and there is no indication that they are likely to do so any time soon. Therefore, is there any need to rush the bill through?

I cannot speak for other colleagues but, before the bill was introduced, I had not heard anything from anybody about wild animals in travelling circuses. I suggest that, unlike puppy trafficking and other animal welfare issues, it is not necessarily a hot topic. I understand that the cabinet secretary, in a rather late response received by the committee last night, disputes that point. Nevertheless, my point still stands. Why are we rushing the legislation? Why not hold off and introduce a bill in a broader context—a bill that takes account of static circuses and other animal welfare issues, as suggested by my colleague Mark Ruskell? Surely it would make more sense to introduce a cohesive, well-balanced and comprehensive piece of animal welfare legislation later on in this session of Parliament. Liam McArthur rightly suggests that the current draft of the bill would be a paradise for lawyers.

As a number of members pointed out, the bill does not define “circus” and inadequately defines “travelling circus”—although that is the entire premise of the bill. The concern is that the vague definitions risk criminalising those who put on a show or event that animals have to be transported to. That must be clarified.

Peter Chapman is quite right when he highlights the further concerns about the definition of “wild animal”. The vague nature of the definition leaves far too much room for interpretation. I echo colleagues from across the chamber in asking the cabinet secretary to seriously consider including a list of the animals that the bill seeks to protect.

We agree with the committee’s view that the current draft of the bill does not fully address the issues that it proposes to cover and is at serious risk of capturing animal performances and shows that it may not have intended to capture.

Unlike Emma Harper, Colin Smyth and Clare Adamson, I have not spent any time exploring the use of the ethical argument or justifications behind the bill. That is because, across the chamber, we believe that public performance by wild animals is no longer acceptable. As Liam McArthur said, the bill reflects our values as a society. The majority of the arguments that have been made in the chamber this afternoon have involved concerns over the bill’s poor drafting, and its potential to fail in what it sets out to achieve.

There is plenty for the Scottish Government to take away from stage 1, and I hope that it will consider all our concerns inclusively and constructively. Members on the Conservative benches support the general principles of the bill and look forward to the Scottish Government bringing forward a much more robust, comprehensive and carefully drafted bill following stage 2.

The Deputy Presiding Officer

I call Roseanna Cunningham to close the debate. Can you take us up to our 4.30 decision time please, Ms Cunningham?

16:19  



Roseanna Cunningham

I will do my best.

I begin by thanking all the members who contributed to the debate, not only today or in the committee’s considerations but in the wider considerations of Parliament. Once again I am struck not only by the depth of insight afforded but by the passion and genuine commitment shown here to ensuring that Scotland continues to be seen as a country that considers its animals with respect and compassion.

I thank members and stakeholders, especially those from animal welfare organisations—[Interruption.] Presiding Officer, the vagaries of the iPad will slow me down. I thank members and stakeholders for being pragmatic about the bill and what it will achieve. I might return to some issues to do with that, because some of the interventions that were made today run the risk of losing sight of that pragmatism.

The bill is not a complex piece of legislation. It is a short, focused bill that will address a distinct and particular ethical concern in the most timely way possible, making the most efficient and proportionate use of parliamentary time possible. The Parliament’s commitment to tackling the issue head on has drawn praise from across the world and it would truly be a shame if we were to falter because of misunderstandings or technicalities that can be resolved.

I will remind members briefly of some of the key points that I made earlier. The bill will not interfere with the ownership, keeping or transport of wild animals by a travelling circus, as long as the animals are not performing or being displayed or exhibited. It will have no impact on the use of wild animals, whether they are sourced from a circus or otherwise, in film and TV production.

What the bill will do is ban the use, performance and display of wild animals in travelling circuses, reflecting the strong and clear mandate that the Scottish people gave us in our consultation on this matter.

I very much welcome the contributions that were made to the debate and the consensus from across the chamber that we should be at the forefront of this important issue.

I will now respond to some of the particular contributions that were made. Quite a few members, such as Graeme Dey, want to discuss issues with the various definitions, or, in their view, the lack of definitions. I repeat for the record that the definition of, for example, “wild animals” is consistent with the Welfare of Wild Animals in Travelling Circuses (England) Regulations 2012, the Animal Health and Welfare (Scotland) Act 2006, the Zoo Licensing Act 1981 and the Animals Act 1971.

There has been quite a lot of discussion about listing wild animals. I understand the desire to see such a list, but I truly caution members as to where we could go with that in the bill. I think that Mark Ruskell suggested that we should have a list of wild animals because taxonomy is straightforward. I am advised that taxonomy is not straightforward, that it is constantly changing and that people make scientific careers out of it. There is even further complexity when we consider hybrids and sub-species and so on. If we started to list wild animals that cannot be used in this fashion, such a list would never be comprehensive and it would need constantly to be reviewed and updated.

One can imagine that the list would constantly be subject to the imaginative use of animals that were not on it. Currently, we do not have performing tapirs. Would a list that we produced of wild animals in travelling circuses include a tapir? It would probably not, because we would not think of it as a standard animal to use in that fashion. However, if an animal is not on the list, the likelihood is that we would begin to see it being used in that way. That is my concern about starting to list animals.

Mark Ruskell

The cabinet secretary said that there are people out there who make their careers in taxonomy—in making these kinds of lists. Why cannot the Scottish Government just ask them to produce a list?

Roseanna Cunningham

Ultimately, I suppose that it would be possible to have a list of every wild animal in the world, but there would always be some animals of which we are not currently aware. What I am trying to do is to caution people as to the unintended consequences of producing a list that then, by definition, excludes other wild animals because they are not on it. That is the problem that I want people to consider.

David Stewart

Will the cabinet secretary take an intervention?

Roseanna Cunningham

I will, as I have a generous amount of time, although it is not unlimited.

David Stewart

I understand the technical point that the cabinet secretary is making, but I presume that it would be easy to have a list of wild animals and a provision that ministers may use secondary legislation—the statutory instrument process—to add any exemptions that come to mind.

Roseanna Cunningham

As I have already said, the term “wild animal” is already widely used in legislation. What I propose as a concession is that we have the capacity to make specific reference if, perhaps, the use of unexpected wild animals suddenly pops up. I am making a point about what happens with legislation once it is in black and white.

I made clear in my opening speech why I believe that the word “circus” should be left to ordinary interpretation. It is already in use in the Welfare of Wild Animals in Travelling Circuses (England) Regulations 2012. If someone believes that they can come up with a perfect definition that has previously been unavailable to legislators, we will of course look at it, but I am not sure that it is as easy as people think it is, and we already have the use of the word “circus” in legislation in the UK.

Understandably, many members, such as David Stewart and Peter Chapman, talked about the balance between welfare and ethics, and I get that point—I understand it. However, I remind people that welfare evidence tends to be species specific, so the welfare requirements of one species are not the same as those of another, whereas ethical arguments apply across the board. Many members veered from welfare concerns to ethical concerns and back again.

I just want to remind people of the timeline. The situation in 2014, when we consulted on the matter, was that the 2007 Radford report had ruled out a welfare-based approach, so we consulted on an ethics-based approach instead. Two years after that came the Dorning report, which is the Welsh report that members mentioned. It provided more up-to-date evidence on welfare concerns for particular species in travelling circuses and other mobile animal exhibits but, as I said, that does not necessarily support a complete prohibition of those uses for all conceivable types of wild animals on welfare grounds alone.

If wide-ranging, accurate, detailed and robust welfare evidence had been available when we started working on the issue—I have to push back a little on the notion that the bill has somehow come out of the blue and we are rushing it through, as we consulted on the matter in 2014—perhaps we would have taken things forward on the basis of secondary legislation under the Animal Health and Welfare (Scotland) Act 2006. We could perhaps have followed that slightly different route if the welfare approach had not become too complicated because of the different species that are involved. However, I do not detect any desire on the part of stakeholders to delay a ban any further, and I do not believe that there is any need to do that, as the ethical arguments that have been put forward in support of the ban are valid.

I will conclude, Presiding Officer, to be on the safe side with you. We have seen successive Westminster Governments commit to a ban such as this and then be unable to see it through, for whatever reason. Perhaps that addresses some of the concerns that have been raised today. I am proud of the work that this Parliament has done to progress the issue this far.

I am conscious that I have not covered all the points that members raised. Some talked about the late arrival of our response, but I point out to members that we did not receive the final report until 22 September, so we have had to turn it round in quite a short timeframe.

In all truth, the practical impact of the bill will be minimal. There are no travelling circuses with wild animals based in Scotland, none has visited for some time and none is likely to visit in the future. The bill lays down an important and symbolic marker on how we value and treat all our animals. I commend the bill to the Scottish Parliament.

Liam McArthur

On a point of order, Presiding Officer, like John Scott, I should have declared that I am an honorary member of the British Veterinary Association. It was an oversight for which I apologise, not least because I quoted the BVA in my remarks.

The Presiding Officer (Ken Macintosh)

Thank you for that helpful clarification.

Vote at Stage 1

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Vote at Stage 1 transcript

The Presiding Officer (Ken Macintosh)

There is one question to be put as a result of today’s business. The question is, that motion S5M-08062, in the name of Roseanna Cunningham, on stage 1 of the Wild Animals in Travelling Circuses (Scotland) Bill, be agreed to.

Motion agreed to,

That the Parliament agrees to the general principles of the Wild Animals in Travelling Circuses (Scotland) Bill.

The Presiding Officer

That concludes our business. I wish members a productive recess.

Meeting closed at 16:30.  



MSPs agreed that this Bill could continue

Stage 2 - Changes to detail 

MSPs can propose changes to the Bill. The changes are considered and then voted on by the committee.

Changes to the Bill

MSPs can propose changes to a Bill  these are called 'amendments'. The changes are considered then voted on by the lead committee.

The lists of proposed changes are known as a 'marshalled list'. There's a separate list for each week that the committee is looking at proposed changes.

The 'groupings' document groups amendments together based on their subject matter. It shows the order in which the amendments will be debated by the committee and in the Chamber. This is to avoid repetition in the debates.

How is it decided whether the changes go into the Bill?

When MSPs want to make a change to a Bill, they propose an 'amendment'. This sets out the changes they want to make to a specific part of the Bill.

The group of MSPs that is examining the Bill (lead committee) votes on whether it thinks each amendment should be accepted or not.

Depending on the number of amendments, this can be done during one or more meetings.

First meeting on amendments

Documents with the amendments considered at this meeting held on 21 November 2017:

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First meeting on amendments transcript

The Convener

Agenda item 8 is consideration of the Wild Animals in Travelling Circuses (Scotland) Bill at stage 2. I again welcome the Cabinet Secretary for Environment, Climate Change and Land Reform. I also welcome her officials from the Scottish Government, who are Andrew Voas, veterinary head of animal welfare and bill team leader; Beverley Williams, bill team manager with the animal welfare team; Angela Lawson, solicitor with the legal directorate; and David McLeish, parliamentary counsel. Members should note that officials are not allowed to speak on the record in these proceedings.

As this is the committee’s first stage 2 bill consideration in the current session of Parliament, members might welcome my laying out the process on the record, with apologies to those who have been through this before.

Everyone should have with them a copy of the bill as introduced; the marshalled list of amendments, which sets out the amendments in the order in which they will be disposed of; and the groupings. There will be one debate for each of the four groups of amendments. I will call the member who lodged the first amendment in the group to speak to and move that amendment and to speak to all the other amendments in the group. I will then call any other members who have lodged amendments in that group to speak to their amendments and to any other amendments in the group but I will not, at that time, ask them to move their amendments.

Members who have not lodged amendments in the group should indicate to me or the clerk if they wish to speak. If the cabinet secretary has not already spoken on the group, I will invite her to contribute to the debate before we move to the winding-up speech. At times, I may allow a little more flexibility for members to come back on points of clarity that have arisen in the debate.

I will conclude the debate on each group by inviting the member who moved the first amendment in the group to wind up. Following the debate on the group, I will check whether the member who moved the first amendment in the group wishes to press it to a vote or to withdraw it. If the member wishes to press it, I will put the question on the amendment. If the member wishes to withdraw it, I will check whether any other member objects. If any member objects, the amendment is not withdrawn and the committee must immediately move to vote on it.

If any member does not wish to move their amendment when it is called, they should say, “Not moved”, and they should do so audibly. Any other member present may move such an amendment. However, if no one moves the amendment, I will immediately call the next amendment on the marshalled list.

Only committee members are allowed to vote. Voting on any division is by a show of hands. It is important that members keep their hands clearly raised until the clerks have recorded the vote.

The committee is also required to indicate formally that it has considered and agreed to each section of the bill, and I will therefore put a question on each section at the appropriate point.

I hope that that is all clear to everybody.

Richard Lyle (Uddingston and Bellshill) (SNP)

Convener, before we move on, can I refer members to my entry in the register of interests? I am the convener of the cross-party group on the Scottish Showmen’s Guild and an honorary member of the Scottish Showmen’s Guild.

The Convener

It was remiss of me not to give you that opportunity. Does any other member have interests to declare?

John Scott

I should declare an interest as an honorary member of the British Veterinary Association.

Mark Ruskell (Mid Scotland and Fife) (Green)

I should also declare an interest as an honorary member of the BVA.

Section 1—Wild animals in travelling circuses: offence

The Convener

Amendment 4, in the name of David Stewart, is in a group on its own.

David Stewart (Highlands and Islands) (Lab)

The bill’s long title states that it is

“An Act of the Scottish Parliament to make it an offence to use wild animals in travelling circuses”,

and the explanatory notes refer to

“The offence of using a wild animal in a travelling circus”.

However, OneKind notes that section 1(1) as drafted does not refer to using a wild animal in a travelling circus, but rather to someone who

“causes or permits a wild animal to be used”.

It might be argued that using a wild animal is included in causing or permitting a wild animal to be used, but it would be helpful to make that much clearer in the bill. If we do not do so, it is conceivable that a sole operator who trains and performs with his animals could argue that he is not causing or permitting use, as no other person is involved. Amendment 4 would add useful clarity and is consistent with the drafting of other measures such as the UK Government’s draft wild animals in circuses bill, published by the Department for Environment, Food and Rural Affairs in 2013, and the new Irish regulations prohibiting the use of wild animals in circuses, which will come into force on 1 January 2018 and which state:

“A person shall not use, or cause or permit another person to use, a wild animal in a circus.”

Amendment 4 is reasonable and uncontroversial.

I move amendment 4.

John Scott

I support what Mr Stewart has said. It is a reasonable amendment, which we should consider.

Roseanna Cunningham

I thank David Stewart for lodging his amendment, the effect of which would be to make it clearer that a circus operator who uses a wild animal in a travelling circus is guilty of the offence. The provision in section 1 as introduced would have covered that scenario, since circus operators directly using a wild animal are in effect causing its use. However, the amendment removes any doubt and, therefore, we are prepared to support it.

David Stewart

I appreciate the support of members and the cabinet secretary.

Amendment 4 agreed to.

The Convener

Amendment 5, in the name of the cabinet secretary, is grouped with amendments 6 and 7.

Roseanna Cunningham

I will outline the thinking behind amendments 5 to 7. The committee’s stage 1 report raised concerns regarding the effectiveness of section 1 in introducing a ban on the use of wild animals in travelling circuses in Scotland. In particular, the committee noted that the use of the word “purpose” in section 1(2) could be interpreted to mean that, if a wild animal was transported with no intended use in mind but was subsequently used in a travelling circus, no offence would have been committed.

I thank the committee for its close scrutiny of section 1. The intended effect of the section is a ban on the use of wild animals in travelling circuses. The purpose, intention or manner of transport of the travelling circus in transporting a wild animal should not be the focus of the offence. We certainly want to avoid any loophole that would mean, for example, that a circus could claim that a wild animal is a pet and so was not transported specifically for the purpose of use. We also do not wish to inadvertently capture within the offence the movement of wild animals that does not mirror the movement of the travelling circus—for example, movement for veterinary treatment.

My officials have considered the drafting further, and I have lodged amendments to section 1 to address the issues that were raised. The amendments remove the reliance of the offence on the intention or purpose of the transportation by removing the requirement to establish intent. They adjust the wording to refer to an animal that is transported to a place where it is used, which establishes a factual situation that may be verified more easily. The amendments also adjust the wording to tie the offence to a particular rather than generic travelling circus by providing that the offence may be committed

“in relation to a travelling circus”,

and making further changes so that references to “a travelling circus” become references to “the travelling circus”.

The amendments mirror the new drafting that is proposed for the definition of travelling circus in Scottish Government amendment 8, which we presume will be agreed to, so that the offence is committed only if the wild animal is transported

“whether regularly or irregularly, from one place to another”.

The changes fully address the committee’s concerns about the effect of the offence.

I move amendment 5.

Stewart Stevenson

Can the cabinet secretary confirm that, in changing the wording from “a travelling circus” to “the travelling circus”—from a generality to specificity—that does not introduce a danger in relation to someone who transports in one context for use in another context and that we would not disconnect the transport from the circus in a way that defeated our objectives?

Roseanna Cunningham

That is not our view. The amendments were drafted to try to ensure that we do not capture the wrong things or exclude other things. The new drafting tightens up the bill and ensures that parallel transportation does not get caught in a situation in which we are talking about a travelling circus. It should be remembered that this is about committing offences. The clarity makes the issue a lot more straightforward in considering any offence.

The Convener

As no other member wishes to contribute, does the cabinet secretary wish to wind up?

Roseanna Cunningham

There is not anything extra that I need to add. I simply reiterate that the amendments are to tighten up the bill so that the nature of the offence becomes even clearer.

Amendment 5 agreed to.

Amendments 6 and 7 moved—[Roseanna Cunningham]—and agreed to.

Section 1, as amended, agreed to.

Section 2—Meaning of wild animal

The Convener

Amendment 1, in the name of John Scott, is grouped with amendments 14 to 16, 2, 17, 18, 3, 20 and 12.

11:15  



John Scott

Amendments 1 and 2 seek to create a list of wild animals that are not to be used in travelling circuses. Amendment 1 details where lists of such wild animals might be found and seeks to place such information in the bill. Amendment 2 would allow ministers to specify by regulation a species or kind of animal that is to be regarded as included in or excluded from such a list. The negative procedure would be the process for doing that. Amendment 3 is consequential to amendments 1 and 2.

All my amendments respond to the view that was expressed in the committee report and during the stage 1 debate that a list of wild animals that might perform in travelling circuses should be placed in the bill. The amendments would usefully enhance the clarity of the bill, but they can also be regarded as probing amendments. I welcome the fact that the cabinet secretary has lodged amendment 12 in response to my amendments and Mark Ruskell’s amendments 14 to 18.

I note Mark Ruskell’s intention to create a list of domestic animals. That seeks to achieve the same objective as my list but approaches the end point from a different direction. I believe that Mr Ruskell’s list, even at a cursory glance, has some omissions, most notably that of reindeer, which were much discussed by the committee and which are much in service at this time of year. Perhaps Mr Ruskell’s list highlights the point that has been made regarding the difficulty of providing exhaustive lists in the bill.

On the cabinet secretary’s amendment 12, I welcome the Government’s further consideration of the need for greater clarity and I look forward to the cabinet secretary’s explanation of what additional clarity the amendment will provide. I note the use of “may” in subsections (1) and (3) of the proposed new section introduced by the amendment. I wonder whether “may” should be substituted with “will” in order to take matters forward.

I look forward to hearing members’ comments.

I move amendment 1.

Mark Ruskell

We have a definition of domestication in the bill. However, at the end of stage 1, we came to the conclusion that there were problems with it: that it was interpretable in different ways, particularly with regard to wild animals that have come from captive breeding stock and have been tamed over a number of generations. The definition creates a loophole in the bill that could result in certain wild birds, reptiles and small mammals being used in circuses, even though they are wild species.

The question in this grouping is about how to close that loophole. I appreciate John Scott’s amendments. I was initially on the same page as John in wanting to define “wild animal” and create a negative list. However, there are problems with that, and the definition that John Scott has provided results in significant omissions including that of raccoon dogs, which I gather are increasingly used in performances and circuses.

The cabinet secretary’s amendment 12 is welcome on one level, but it does not effectively deal with the issue in the bill. The approach is to put in a regulation-making power that can be used at the Government’s discretion when a particular problem arises. However, we have time now, during the passage of the bill, to get a much clearer definition. Whether that is a list that includes or does not include reindeer, raccoon dogs or whatever, let us bottom that out now, rather than leave it to the courts to decide or for future regulation to be required at a later date as a result of a legal action.

In essence, I am presenting the committee with two options, both of which would provide the clarity of a list of domestic animals. That would be a positive and much shorter list of domestic animals that could be used in circuses, which would be introduced before section 1 comes into force.

The first option, which is set out in amendments 14 and 20, is to provide a list and a way of updating that list over time. The list has been drawn up on the basis of the culture of how animals are used in circuses in this country, and is also based on other countries’ lists. It acknowledges that some animals have a long history of use and breeding and are fundamentally altered from the wild type. The second option is to create a power to introduce a list. I would go a little further than the cabinet secretary and would suggest that that needs to happen before section 1 is implemented.

We need that clarity. Whether there is a list in the bill, which is approved at this point, or a list that must be generated before section 1 comes into force, that clarity is important.

Roseanna Cunningham

I will come to amendment 12 after I have spoken to the other amendments in the group. That would make more logical sense.

This debate is about the committee’s concerns regarding clarity in the definition of a “wild animal”. I understand the committee’s recommendations about including a list. I understand the motivation and why people would think that a good thing. However, that kind of definition in legislation often becomes incredibly problematic, which is why it does not happen in general terms.

I thank the committee for its consideration of the issue, and I will deal with the amendments, starting with those in the name of John Scott. His idea is to refer to existing lists of wild animals under the habitats directive and the Dangerous Wild Animals Act 1976 to help define the kinds of animals that are and are not considered wild. He is taking a similar approach to mine in proposing, in addition, to provide a power for the Scottish ministers to specify whether a species or a kind of animal is wild or not. However, I rather fear that the approach that has been taken in John Scott’s three amendments would render the bill ineffective without extensive secondary legislation. In its current form, the approach would automatically exclude any wild animals that are not considered dangerous wild animals or animals of particular conservation importance in Europe. In particular, it would exclude foxes and raccoons, which are currently used in one particular circus. It would also exclude other animals that might conceivably be used, including woolly lemurs, tamarins, guanacos, vicuñas, night monkeys, squirrel monkeys and all the other different kinds of monkeys that are and can become popular in circuses.

Secondary legislation listing a wide range of animals would indeed be required immediately the act came into effect, but it would be difficult to provide and keep up to date. It would have to be exhaustive, and it is difficult to see how it could be an exhaustive list. It would have to include not just wild animals but the hybrids that a travelling circus might possibly use. It would create constant problems, as we would constantly have to monitor the animals used.

Mark Ruskell’s amendments lie on the other side of the coin. Mark Ruskell is trying to list the domesticated animals that can be used, as opposed to the wild animals that cannot be used. Listing domestic animals may seem simpler than listing wild animals, but that would still require debate on and updates to legislation, should the status of certain animals in the British islands change—not least as the offence would be triggered with the use of any animal that was not listed.

Many of the animals listed in amendment 20 are clearly commonly domesticated animals, and there is little need to list them, as such animals will already be exempt from the ban under section 2(2) of the bill. However, some of the animals included in the list in amendment 20 are not commonly domesticated. They are what we would consider to be wild: for example, Pallas’s cats, sand cats and the Scottish wildcat.

Furthermore, many commonly domestic animals are missing from the list in amendment 20, including llamas and alpacas, which are examples of changing culture around animals. I guess that, 20 or 30 years ago, we would not have regarded llamas and alpacas as commonly domesticated in the UK, but most of us recognise that they are now. Also missing are various small animals commonly kept as pets.

If the list is not absolutely accurate, some travelling circus operators could conceivably be prosecuted for using a kind of animal that is indeed commonly domesticated in the British islands, while others might legally use what are in reality wild animals.

In a sense, it comes back to the issue of lists. I stand by my previous advice that a list of animals by species, subspecies and hybrids would not be practical because it would be difficult to ensure that it was exhaustive and anything not on the list would remain legal to use, which would provide a way for travelling circuses to keep using wild animals by constantly adjusting the kind of animal that they use. There would also be a requirement for frequent updates to the list, with each update no doubt causing significant debate among stakeholders. Listing domestic animals that are not to be covered by the ban would simply give rise to the same problems, because it would be difficult to ensure that the list was exhaustive, any wild animals inadvertently captured by the list would remain legal to use and circus operators who used clearly commonly domesticated animals that were not caught by the list would then be open to prosecution.

To summarise my views on amendments 1 to 3, I see no advantage in restricting the tried and tested meaning of “wild animal” in the bill by referring to lists in other legislation, such as the habitats directive or the Dangerous Wild Animals Act 1976. In regard to amendments 14 to 18, and 20, I consider that the risks to law-abiding travelling circus operators would be too great if a list of domestic animals was adopted. Ensuring that any such list was comprehensive and up to date would be critical and difficult, with potentially serious consequences if that was not achieved.

Those examples illustrate clearly the dangers of trying to construct a list of animals that are or are not wild for the purposes of the bill and underline why the definitions in the bill provide what we consider to be the correct approach.

I move on to amendment 12. I understand the committee’s concerns regarding the need for clarity on this matter and I fully accept that there might be occasional cases of genuine doubt as to whether a type of animal is of a kind that is commonly domesticated in the British islands or is wild, since where a type of animal sits in those two categories is not fixed but can change over time, as I have indicated with the obvious examples of alpacas and llamas. I have therefore lodged amendment 12, which would provide the Scottish ministers with a power to make regulations to include or exclude specific kinds of animals as wild animals for the purpose of the legislation. As I stated at the stage 1 debate, the regulations would be subject to the affirmative procedure, which is consistent with the procedure that is used for other animal welfare secondary legislation and would allow full consideration of any future regulation by the committee.

We would use the power in cases of genuine doubt. That approach would have the advantage of retaining the tried and tested definition of “wild animal” that is currently used in the Animal Health and Welfare (Scotland) Act 2006, the equivalent Zoo Licensing Act 1981 in England and the more recent Welfare of Wild Animals in Travelling Circuses (England) Regulations 2012, thereby keeping consistency. However, the approach would go further by allowing the Scottish ministers to exclude or include specific kinds of animals as wild animals in a targeted manner to remove any doubt in particular cases where there was uncertainty. I think that amendment 12 addresses the committee’s concerns about definitions, without bringing in the difficulties that would arise with the alternative approaches that have been proposed. I therefore respectfully ask John Scott and Mark Ruskell not to move or press their amendments and ask the committee to agree to amendment 12.

Stewart Stevenson

I have come to this matter quite late, but I have had an intensive weekend of study on it. The cabinet secretary has slightly pre-empted me in that I have identified that I have llamas 3 miles from my home and there are vicuñas and alpacas 10 miles from where I live. Those species are not covered in any lists and I think that they now might be regarded as commonly domesticated in the British islands.

There is perhaps a bigger issue with regard to feral animals. For example, the dingo, which is now regarded as a wild dog in Australia, is in fact descended from and genetically linked to the dogs that are still here in the UK. One could have an interesting debate as to whether a dingo imported into the UK was commonly domesticated, because genetically it might be a very close cousin. I just give that as an example.

There are also examples such as the wild horses on Exmoor, which could be brought to Scotland—although they are semi-domesticated in some ways, I think—and there are colonies of wild goats and sheep, and cats that go feral. There is a range of ambiguities.

11:30  



Roseanna Cunningham

And, indeed, there are wallabies.

Stewart Stevenson

The cabinet secretary says wallabies—my experience is comprehensive, but not total. I have not yet met any wallabies.

One could even consider rabbits, which are actually domestic animals that were introduced by the Romans 2,000 years ago but are now regarded as wild animals. There are ambiguities associated with the production of lists—which, of their very nature, cannot be comprehensive in their coverage—but, more fundamentally, they create loopholes and enable circuses to exploit omissions from the lists.

I support what the cabinet secretary has said and the approach that she has taken, while understanding and sympathising with the underlying motivation of John Scott and Mark Ruskell. In particular, amendment 20 is a safety net for that which we cannot currently know and may only discover in the future.

Richard Lyle

I agree with the comments that Stewart Stevenson just made, and also with what the cabinet secretary said. I can see where Mark Ruskell and John Scott are coming from, but I think that a list would set the whole thing back. Remember that we have 32 councils that will have to make the legislation work, and 32 different council officers who may have differing views. I am reminded that there are some domesticated camels and also wild camels. We could go through every species and say which are wild and which are domesticated and, before we know it, the list will be endless and it will need to be reviewed. We will also have circus owners who will sit with a list and say, “Oh—I can have a circus with that animal because it ain’t on the list.” As far as I am concerned, a list is wrong and I will not be supporting any of those amendments.

Claudia Beamish

I find this issue quite complicated, if I am open about it. Lists often have their dangers and, although I was keen to support the possibility of a list of wild animals, as set out in John Scott’s amendment, in order to provide strong clarification, in view of what the cabinet secretary said I now have concerns about that and will not be supporting John Scott’s position.

I have had concerns right the way through about supporting an alternative list for domestic animals, which would further complicate matters. Although I understand the sentiment behind Mark Ruskell’s amendments, and it is very important that we are as clear as possible, I am not clear myself that those amendments would clarify what is or is not a domestic animal, so I will not be supporting his amendments at this stage either.

It may well be necessary to revisit the idea of lists, although not in the bill because of the difficulty of changing them. However, I would not rule out consideration of the idea at stage 3 after further clarification. At this stage I am keen to support amendment 12, which leads to further clarity.

Mark Ruskell

I listened carefully to what the cabinet secretary said. I would like clarification over amendment 12, because it enables ministers to make a regulation about a kind of animal that is regarded as wild and a kind of animal that is not. Does that, in effect, draw up a list of those animals that are wild and those that are commonly domesticated? If it does, there still has to be consideration of where to draw the line—when it is acceptable to have an animal performing in a circus, based on the three ethical considerations that are at the heart of this bill.

I want to briefly go back to the issue of frequent updating of lists or consideration. It is the nature of domestication that it happens over multiple generations; indeed, the cabinet secretary mentioned the changing use of alpacas and llamas. Given that that has occurred over at least a human generation—in other words, 30 years or so—the updating of any kind of list yearly, whether under amendment 12 or under the other amendments in the group, simply would not happen. Domestication happens over a very long period of time, as does the culture of how we use animals, so I do not believe that this issue needs to be revisited all the time. That said, I seek some clarification from the cabinet secretary on how the Scottish Government might bring in regulations and where one draws the line in a list of species.

Roseanna Cunningham

I think that there is a slight misunderstanding here. Most of us will agree on pretty much all the animals that are domesticated and all those that are wild; what we are talking about is the small number of animals where there might be real dubiety or an animal that no one has heard of or met before or which is not normally used here in these circumstances. As a result, we might have a slightly ambiguous situation in which there is real doubt as to whether an animal is domesticated or wild.

The expectation, therefore, is that the regulations would come into play only if we were confronted with that real doubt. They would not come into play if a lion, say, or a dog was being used, as one is clearly wild and the other clearly domesticated. They would apply only in the situation that I highlighted. I made a joking comment about wallabies earlier, but there actually are wallabies in Scotland; they got free and have now colonised a small part of the Loch Lomond and the Trossachs national park. I do not know whether wallabies have been domesticated by now in Australia, but you can understand how we might get confronted from time to time by that kind of anomaly—in other words, an animal that we had not previously thought of as being an animal that lives in Scotland. It is those anomalies that we would look to the regulations to deal with, not the widely understood categories of domesticated and wild. The vast majority of the animals that John Scott and Mark Ruskell have listed are clearly what they are defined as, but you can see straight away that the minute you listed specific animals, the people at this table and in this room would be highlighting examples of animals that had been left off those lists. If we can bring up such examples, you can bet your boots that everyone else will be able to as well.

We are using the common understanding of wild and domesticated animals. Mark Ruskell is quite right to point out that the regulations would not be used every six months or every year; they would be used only when a very particular anomaly arose and when there was real doubt as to whether a particular animal fell into a particular category. It would involve consideration of that particular animal, about which we would get evidence and information.

Stewart Stevenson

It strikes me that paragraph (a) of subsection (2) of the proposed new section in amendment 12 makes it very clear that the generality of the phrase “commonly domesticated” and other parts of section 2 is in no way undermined or replaced by any list that might be created in secondary legislation. That is perhaps the most important part of amendment 12: it protects the generality, even though at some point in the future it might produce what I suspect will be quite a short list. It complements but does not replace the generality.

The Convener

It is worth nothing that the amendments lodged by John Scott and Mark Ruskell are constructive and well intentioned in what they set out to achieve but, as we have heard, they immediately throw up difficulties. I think that that reflects the committee’s wisdom in handing the matter back to the Scottish Government in its stage 1 report and asking it to reflect on the issue of lists, although I know that some members have kindly attempted to assist in that process. On that basis and having reflected on the matter, I cannot support the amendments lodged by Mr Scott and Mr Ruskell, although I stress again that I think they were offered in a constructive spirit.

John Scott

I thank the cabinet secretary for her explanation of the apparent weaknesses of my three amendments, which I think has convinced me of the dangers of seeking to create lists. Indeed, she named species that I was certainly not aware of. My intention was to include, not exclude, animals and definitions. Moreover, I would not wish to foist the burden of frequent updates through subordinate legislation on future generations of parliamentarians.

I welcome the fact that the cabinet secretary has lodged amendment 12 and that it will be subject to affirmative procedure. I believe that the probing amendments that Mark Ruskell and I have lodged have served their purpose of encouraging the Government to refine its approach, and I welcome the cabinet secretary’s explanation of how amendment 12 will work.

Although I share some of Mark Ruskell’s remaining concerns, I will, with the committee’s permission, seek to withdraw amendment 1, given that the view of the committee is, I believe, to support amendment 12 instead.

Amendment 1, by agreement, withdrawn.

Amendments 14 to 16, 2, 17, 18 and 3 not moved.

Section 2 agreed to.

Before schedule 1

Amendment 20 not moved.

Section 3—Meaning of other key terms

The Convener

Amendment 19, in the name of David Stewart, is grouped with amendments 8 to 11 and 13.

David Stewart

Although OneKind initially took the view that the Scottish courts would be well able to interpret the word “circus” in any proceedings under the new legislation, it accepts the point made at stage 1 that it is not particularly practical for enforcement agencies to have to wait for a judicial definition when addressing possible breaches of the legislation. Cases in court are the tip of the enforcement iceberg, and the local authority needs to be able to act quickly and work with clear and comprehensive legislation at all times. Understanding of the word “circus” was complicated by discussions that the committee had at stage 1—and which are set out in detail in section 3 of the committee’s stage 1 report—and I therefore believe it essential to have a clear definition on the face of the bill. Amendment 19 reflects the previous discussion, covers the necessary elements and will aid interpretation of the legislation at all stages from consideration of enforcement through to the court process.

I move amendment 19.

11:45  



Roseanna Cunningham

The bill’s definition of “travelling circus” has been the subject of some conversation and deliberation. The committee considered that the term “place to place” could inadvertently capture wild animal use in a static circus that relocates. Part of the concern raised by the committee regarding what constitutes a travelling circus related to parallel concerns about the bill’s lack of a definition of the word “circus”.

I will speak to amendments 8 to 11, dealing with the wider definition of a travelling circus first, and then come back to amendments 13 and 19, dealing with the more complex topic of defining the word “circus”.

Amendments 8 to 11 in my name amend section 3 in relation to travelling circuses to clearly target the ban on travelling circuses, so that static circuses and any other enterprises that are not considered to be travelling circuses are not caught by the ban.

I thank the committee for its close scrutiny of section 3 and for raising members’ concerns. The amendments address the committee’s concerns that the phrase “from place to place” could inadvertently capture enterprises that are not travelling circuses by replacing it with the phrase

“from one place to another”.

The amendments provide more clarity on the type of travel that is necessary to make a circus a travelling circus under the bill by describing travel as being

“regularly or irregularly, from one place to another”

for the purposes of providing entertainment. They also specifically mention a relocated static circus as an example of what would not be included in the definition of a travelling circus. The changes go a significant way towards addressing the committee’s concerns about the definition of a travelling circus.

I move on to the topic of defining the word “circus” and will outline why I recommend that the committee supports Graeme Dey’s amendment 13 and why I cannot recommend that it supports David Stewart’s amendment 19. The committee’s stage 1 report recommended that the Scottish Government should include a definition of a circus in the bill. The committee’s view was that such a definition is crucial to the correct targeting of the ban and that, without it, the legislation would be difficult to enforce. That view came through strongly in the stage 1 debate.

I understand the concerns about the targeting of the bill and the intention is to ensure that the ban on the use of wild animals is effectively focused on travelling circuses. However, a specific definition in the bill such as that which would be provided by amendment 19 would be frozen. I remain concerned that such an approach would risk the unintended consequence of capturing or excluding certain enterprises precisely because of its rigidity.

A narrow definition would provide travelling circuses with a clear blueprint for how to avoid the ban by making adjustments to their shows, rather than by stopping using wild animals. That could inadvertently provide travelling circuses with a continuing opportunity to bring wild animal acts to Scotland and use them in performances or displays. Conversely, a wide definition could capture the use of wild animals in many sectors that it is not intended to ban.

I therefore thank David Stewart for lodging his amendment 19, but I am concerned that the wide definition that he proposes would ban the use of wild animals in a much broader range of activity than just travelling circuses. It could capture wild animal use in many sectors where it is not intended for the ban to have any effect. For example, filming, bird of prey exhibitions and festive reindeer could be said to involve animals

“performing tricks or manoeuvres”

or

“being displayed or exhibited”.

However, I recognise that the committee and some stakeholders remain concerned by the issue and I also acknowledge that there might be occasions when enforcement authorities will need to consider carefully whether a particular enterprise is a travelling circus and should be included under the ban. I expect the guidance that we will issue to local authorities will assist with making such decisions, but amendment 13, which we will deal with later, provides powers to address such concerns conclusively in cases of doubt, and we would provide a power to make regulations to include or exclude

“a particular type of undertaking, act, entertainment or similar thing”

within the meaning of travelling circuses

“for the purposes of this Act.”

Convener, I appreciate that you will be coming back to amendment 13.

The Convener

Can you do it now?

Roseanna Cunningham

Okay. The regulations will be subject to the affirmative procedure, consistent with the procedure used for other animal welfare secondary legislation, to allow the committee to fully consider individual cases. Again, that power would be used only in the case of genuine doubt.

Amendment 13 does that while avoiding the significant challenges that would accompany a requirement for a complete list of all the types of undertakings, acts, entertainments or other similar things that are to be included or excluded from the definition of travelling circus. Any such list is unlikely ever to be comprehensive, and it is highly likely that some types of enterprise would be omitted. Amendment 13 also avoids the overly wide net that would be provided by the definition in amendment 19. The adoption of amendment 13 would mean that, in the majority of cases, the bill would rely on the commonly understood meaning of circus and on section 3 to define a travelling circus, which we believe is a strategy that is already working well for other legislation. However, in cases of genuine doubt about a particular kind of enterprise, we would have the power to come back and revisit it.

Amendment 13 is the more effective way of addressing the committee’s concerns and I am grateful to the committee for its work in considering the issue and to Mr Dey for lodging the amendment.

I need to add one small but important note about amendment 19, which is that we have doubts about its legislative competence. I feel that I ought to draw that to the committee’s notice. We feel that it is outwith legislative competence and may put the whole bill in jeopardy. I can expand on that if you want me to at this point.

The Convener

I see heads nodding. That would be useful.

Roseanna Cunningham

The definition in David Stewart’s amendment 19 widens the type of activity that is caught by the offence to include any peripatetic or travelling animal display activity. That could include, as I indicated before, festive reindeer displays or birds of prey displays. The Scottish Government position is that there is insufficient evidence of moral opprobrium or welfare concerns associated with all travelling animal display activities such as to justify a complete ban on the use of wild animals in such ventures. Without evidence of a legitimate justification for such a ban, there could be a risk of acting incompatibly with rights under the European convention on human rights or European Union law.

The Convener

I will speak to my amendment 13. In our stage 1 report, the committee raised concerns about the bill’s lack of a definition of a circus and how that could impact on what might or might not be viewed as a travelling circus. In responding to the stage 1 report, the cabinet secretary indicated a willingness to consider any amendment aimed at bringing clarity, provided that it did not have unintended or unwanted consequences. Amendment 13, complemented by clarifying guidance, will get us as far as we can reasonably go towards addressing the committee’s concerns, while not creating wriggle room to allow either activities that should be captured by the scope of the bill to escape it, or acts or entertainments that were never intended to be captured by the bill to be caught by it. I hope that the amendment addresses the unanimous concerns expressed by the committee.

In essence, amendment 13 would give ministers a power to introduce regulations either to define an activity that was contending that it was not a travelling circus, when it was indeed intended to be subject to the bill, or to define an activity that was never intended to be captured but which might become the subject of efforts to contend that it was. I am thinking of such things as reindeer visiting shopping centres or wild bird shows. The amendment calls for such regulations to be introduced under the affirmative procedure, which would afford this committee, or any relevant successor committee, the opportunity to properly interrogate them. Clearly, we would wish that there was never a need for those powers to be exercised, but if amendment 13 is accepted and if the accompanying guidance is as clear as possible, we can get where we need to go.

Stewart Stevenson

I have no particular difficulty with what David Stewart intends with amendment 19, which addresses recommendation 8 in the committee’s report, but the wording blows the whole thing wide open. The amendment says:

“in relation to which animals are kept or introduced wholly or mainly for the purpose of—”

How would I get around that provision? I would simply get my animals by leasing them from a zoo for no more than 182 days per year. Therefore they would be in the zoo for 183 days per year and so would be mainly zoo animals and only subsidiarily circus animals.

Secondly, there is the wording “kept or introduced”. I am not quite sure what “introduced” means in this context, but as for “kept”, if the animals are normally kept by another enterprise that is not the circus, such as a commercial zoo—and there are commercial zoos—then again, the whole thing would escape.

I am sure that further examination could find other ways in which the particular words that are used can be got around; that is an issue that the member might consider further. Because of the quite straightforward ways that we can see someone getting around the particular words that we have before us, I think that it would be extremely unwise for us to accept and agree this amendment.

Donald Cameron (Highlands and Islands) (Con)

I have two points, the first of which is on legislative competence. I am interested to know what provisions of European Union law or the ECHR the cabinet secretary has in mind when she says that amendment 19 is “outwith legislative competence”.

My second question is also in relation to David Stewart’s proposed amendment 19. I take on board what the cabinet secretary said about various issues with the wording of the amendment, and I therefore find it difficult to support, but the principle of defining the word “circus” is worthy of further consideration. This bill goes to great trouble in section 3 to define not just “travelling circus” but the phrase “circus operator”. The “circus operator”, we are told, means

“the owner of the circus”,

and we are then told that it is

“any person ... with overall responsibility for the operation of the circus”.

Does the cabinet secretary think that it is sustainable to pass legislation regarding wild animals in travelling circuses without defining the very word “circus”?

The Convener

We will come back to that point. I want to let Kate Forbes come in.

Kate Forbes (Skye, Lochaber and Badenoch) (SNP)

It is a very brief comment. I understand the intention of David Stewart’s amendment. My main concern is that it would mean that the legislation went beyond its intention. One of the main concerns raised during the course of evidence was that the legislation would capture, for example, travelling reindeer. However, I see the temptation to define “circus”.

The Convener

Do any other members wish to speak?

Mark Ruskell

Amendment 13 is a constructive amendment to lodge, but perhaps it falls into the same trap as amendment 12, which we have already debated, on the definition a wild versus a domestic animal.

The cabinet secretary says that there may well be situations where there is genuine doubt with regard to the definition of a wild animal or of a travelling circus. Amendment 13 seems to be drafted in a very similar way to amendment 12 in that it relies upon the generality of a definition that is already in the bill—a generality that this committee has already had concerns is not tight enough.

I have the same lingering concerns that we just had in the previous debate. In a way, amendment 13 pushes the issue into the future. It says that if there is a legal challenge over a definition, we will come back and regulate it at that point. I would expect the definitions of a wild animal and a travelling circus to come back at some point, possibly through the courts, and possibly then through further regulation by this committee.

I do not know whether that is the most appropriate way to deal with the concerns. If there are tighter, more accurate, relevant definitions of both terms that could be included in the bill, why not do so now and enable them to be changed over time, if evidence arises that they need to change?

12:00  



The Convener

If no other member wants to comment, I will bring in the cabinet secretary again, to answer questions.

Roseanna Cunningham

I do not want to be drawn into the broader discussion about definitions in legislation. The issue is not specific to this bill; in the context of almost any legislation we hear arguments being played out about definitions and the likelihood of challenges.

We accept that, in future, there might from time to time be a determination to try to challenge the bill, but the bill is no different from any other legislation in that regard. I cannot think of any legislation in relation to which there is no hypothetical possibility of challenge in future. The fact of that being a possibility is not a reason for going into the kind of contortions that would be necessary—I think that committee members can already see what kind of contortions we get into when we try to make definitions in legislation work in practice.

I am content that where we are at the moment does not freeze a definition of circus, the common understanding of which might change over time, as happens in many cases, any more than our current approach freezes the definitions of a wild animal and a domesticated animal. There is a need to future-proof legislation, and that is what we are doing. I am not saying that what we do here will absolutely guarantee that there will never be a challenge—one can never say that—but we are trying to ensure that we capture the right things in the right way.

That takes me back to the very start. Members need to remember that the legislation is predicated on not welfare but ethical grounds, so we need to make our arguments on ethical grounds, and in future the legislation will be looked at on ethical grounds. If it were welfare legislation, it would look and sound rather different.

On Donald Cameron’s point, I indicated that we had doubts about legislative competence—I do not know whether David Stewart has had conversations about that. Under EU law, there is the freedom to provide services; members should remember that we are interfering with businesses, so we must have regard to that and to ECHR article 1, protocol 1, on the right to property. We have concerns, which can be overcome by making the arguments—and that takes me back to the point about reminding ourselves that the basis for the bill is ethics and not welfare. [Interruption.]

I am being reminded that clear guidance to local authorities is to be provided on the back of the bill. The guidance will come to the committee, I presume, so the committee will be able to consider whether it is sufficient before it goes out to local authorities.

David Stewart

The objective of amendment 19 was to improve the bill. At stage 1 we heard criticisms about the vagueness of the definition. I was particularly concerned—as I think were other members—to ensure that we did not just wait for a definition to come through a court process and various test cases and that advice and guidance would immediately be given to the 32 local authorities.

However, I understand the points that other members and the cabinet secretary made. On that basis, I will not press amendment 19.

Amendment 19, by agreement, withdrawn.

Amendments 8 to 11 moved—[Roseanna Cunningham]—and agreed to.

Section 3, as amended, agreed to.

After section 3

Amendment 12 moved—[Roseanna Cunningham].

The Convener

The question is, that amendment 12 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Stewart, David (Highlands and Islands) (Lab)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Scott, John (Ayr) (Con)
MacDonald, Angus (Falkirk East) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Dey, Graeme (Angus South) (SNP)
Carson, Finlay (Galloway and West Dumfries) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Beamish, Claudia (South Scotland) (Lab)

Abstentions

Ruskell, Mark (Mid Scotland and Fife) (Green)

The Convener

The result of the division is: For 10, Against 0, Abstentions 1.

Amendment 12 agreed to.

Amendment 13 moved—[Graeme Dey].

The Convener

The question is, that amendment 13 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Stewart, David (Highlands and Islands) (Lab)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Scott, John (Ayr) (Con)
MacDonald, Angus (Falkirk East) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Dey, Graeme (Angus South) (SNP)
Carson, Finlay (Galloway and West Dumfries) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Beamish, Claudia (South Scotland) (Lab)

Abstentions

Ruskell, Mark (Mid Scotland and Fife) (Green)

The Convener

The result of the division is: For 10, Against 0, Abstentions 1.

Amendment 13 agreed to.

Sections 4 and 5 agreed to.

Schedules 1 and 2 agreed to.

Sections 6 to 8 agreed to.

Long title agreed to.

The Convener

That ends stage 2 consideration of the bill.

At our next meeting, which is on 28 November, the committee expects to take evidence ahead of the Scottish Government’s draft budget for 2018-19.

Meeting closed at 12:07.  



Wild Animals in Travelling Circuses (Scotland) Bill as amended at Stage 2 

Additional related information from the Scottish Government on the Bill

More information on the powers the Scottish Parliament is giving Scottish Ministers to make secondary legislation related to this Bill (Supplementary Delegated Powers Memorandum)

Stage 3 - Final amendments and vote

MSPs can propose further amendments to the Bill and then vote on each of these. Finally, they vote on whether the Bill should become law.

Final debate on the Bill

Once they've debated the amendments, the MSPs discuss the final version of the Bill.

Video Thumbnail Preview PNG

Final debate transcript

The Deputy Presiding Officer (Christine Grahame)

The next item of business is a debate on motion S5M-09648, in the name of Roseanna Cunningham, on the Wild Animals in Travelling Circuses (Scotland) Bill at stage 3.

Before the debate begins, I remind members that the Presiding Officer is required under standing orders to decide whether, in his view, any provision of the bill relates to a protected subject matter. Put briefly, that is whether it modifies the electoral system and franchise for Scottish parliamentary elections. If it does, the motion to pass the bill will require support from a supermajority of members: that is, a two-thirds majority, which is 86 members. In the case of this bill, the Presiding Officer has decided that, in his view, no provision of the Wild Animals in Travelling Circuses (Scotland) Bill relates to a protected subject matter. Therefore, the bill does not require a supermajority to be passed at stage 3.

15:43  



The Cabinet Secretary for Environment, Climate Change and Land Reform (Roseanna Cunningham)

I am pleased to open this brief debate. At the outset, I thank all stakeholders who provided evidence and the committee members involved for their detailed and constructive consideration of the issues raised.

First, I deal with a very formal matter. I advise the Parliament, for the purposes of rule 9.11 of the standing orders, that Her Majesty, having been informed of the purport of the Wild Animals in Travelling Circuses (Scotland) Bill, has consented to place her prerogative and interests, so far as they are affected by the bill, at the disposal of the Parliament for the purposes of the bill. It turned out that the bill required Crown consent.

The principle of a ban on wild animals in travelling circuses has had cross-party support for many years, although such circuses rarely visit Scotland now. The bill is therefore a preventative measure, based on ethical concerns about the use of animals in travelling circuses in general. It makes a clear statement to the world that the Scottish people respect the innate character of wild animals and will not tolerate their being subjected to a nomadic lifestyle in order to provide a spectacle for entertainment.

The Environment, Climate Change and Land Reform Committee raised some concerns about the bill’s wording in its stage 1 report. I responded by explaining the reasoning behind the wording and supporting some changes to the bill at stage 2, when the definitions of “wild animals” and “travelling circuses” in particular were debated vigorously and also, on occasion, humorously. Suitable amendments were, however, agreed, to avoid requiring lists of types of animal or characteristics of a circus in the bill.

I do not have much time, so I will deal with one substantive issue that has arisen more recently and subsequent to my appearances at committee. I believe that the Delegated Powers and Law Reform Committee regarded as unusual the new powers to specify whether a kind of animal is or is not wild and whether a kind of undertaking is or is not a travelling circus. The scenarios covered by the powers are themselves unusual. Guidance on the meaning of “wild animal” and of “travelling circus” and how those phrases should be applied in practice will, of course, be provided. However, the Environment, Climate Change and Land Reform Committee felt that guidance alone was insufficient, given the crucial role of the definitions in the bill. There is a huge variety of forms of entertainments using wild animals and of kinds of wild animals. Although the bill’s definitions will be sufficient in the majority of cases, the additional powers provide a mechanism to provide clarity in marginal cases where there is uncertainty, confusion or disagreement about whether or not particular kinds of animals or undertakings fall within the definitions.

The powers in the bill to specify a kind of animal as wild or not and an undertaking as a travelling circus or not are for the purposes of the bill. It is expected that a court would, in the case of that animal or undertaking, apply the act on the basis that the specified animal is a wild animal and the specified undertaking is a travelling circus. The regulations specifying what is a wild animal or a travelling circus are, however, expressly without prejudice to the general definitions in sections 2 and 3 of the bill. It is possible that, after regulations came into force, difficult issues could arise in a specific case because, for example, circumstances relating to that status of the animal have changed; for example, we often refer to that happening in our lifetime for llamas and alpacas. We therefore accept that a court would have to construe the act on the basis that sections 2 and 3 have determinative effect and regardless of what previously had been specified by regulations. In that sense, we accept that the regulations would have been indicative only.

Those powers, and specifically the way in which they were drafted to protect the generality of the definitions in the bill, were supported by Environment, Climate Change and Land Reform Committee members at stage 2. The powers would be used only after looking at the evidence case by case and would be subject to the affirmative procedure after consideration by a parliamentary committee.

I believe that those powers, backed up by the clear guidance that we will issue, will ensure that we have a robust bill that is practical and easy to enforce. Again, I thank all those who have been involved in the bill process and those who tested the notion of having a list one way or the other in terms of wild or domesticated animals and who came to the same conclusion that we did, which is that it is extremely difficult to do that.

John Scott (Ayr) (Con)

Will the cabinet secretary take an intervention?

The Deputy Presiding Officer

It has to be very brief, Mr Scott, as the cabinet secretary is over her time.

John Scott

Thank you. Will the guidance be issued timeously?

Roseanna Cunningham

Yes, it will.

I move,

That the Parliament agrees that the Wild Animals in Travelling Circuses (Scotland) Bill be passed.

15:48  



Donald Cameron (Highlands and Islands) (Con)

Here we are again, ringside, at stage 3 of the bill. In sincerity, I am delighted that, as we reach the end of what has been an eventful year in politics, we are here today to discuss legislation that will protect many wild animals and prohibit their use in Scotland within the realm of a travelling circus. With the bill likely to receive royal assent, we are catching up with the 18 other European countries that presently have restrictions on the use of wild animals in circuses; and it appears that United Kingdom Government legislation on the matter will be forthcoming.

I think that we have all agreed, on both animal welfare and ethical grounds, that it is correct that we now ban the use of wild animals in travelling circuses. Although there is no evidence that such circuses have recently operated in Scotland, I think that everyone acknowledges that it remains imperative that we pass legislation to ban their using wild animals.

This is a bill in which the Environment, Climate Change and Land Reform Committee has played an important role, and although it cannot be said that it is a landmark bill, it is one that highlights the necessity of our committee system and the rigour and scrutiny that it provides.

When this bill was first discussed at stage 1, we collectively raised a variety of concerns about legal definitions, which were primarily concerns of the many and varied industries that potentially could have been affected by such legislation. At the time, we raised the fact that the bill risked criminalising some shows and events that have high standards of animal welfare, such as llama displays at the Royal Highland Show or organisations in my region of the Highlands and Islands, such as the Cairngorm reindeer centre.

We raised the fact that there was a problem around the definitions of the terms “circus” and “travelling circus” and a lack of clarity about what constituted a “wild animal”.

All in all, those areas presented many legal issues with the bill as it stood. However, it is a testimony to the Environment, Climate Change and Land Reform Committee that it was able to listen to the evidence and work with the Scottish Government to implement needed changes. I would like to thank my colleagues John Scott, Mark Ruskell, David Stewart and the convener, Graeme Dey, who I hope will not mind being described as veterans of the system and who helped guide us novices through the intricacies of stage 2 and the amendments that were lodged either to improve the definitions or to provide assurances of one kind or another.

Although several amendments were not moved in their original form, it is clear that they prompted a response from the Scottish Government. I thank the cabinet secretary for the clarity that she has provided both today and on past occasions.

I should also comment on the input of the Delegated Powers and Law Reform Committee, which raised several points last week around similar issues. I again thank the cabinet secretary for clarifying, today and on the record, those issues in relation to definitions and accompanying guidance. Those matters are not just of arcane legal interest to lawyers such as herself and me; they are very important and I am glad that they have been taken on board.

It is abundantly clear, Presiding Officer, that the Environment, Climate Change and Land Reform Committee has played an important role in ensuring that the bill is fit for purpose and in addressing many of the concerns that operators had with the initial wording of the bill. As a result, the Scottish Conservatives are satisfied that the bill will deliver what it sets out to achieve and we will vote for it at decision time. It will ensure that shows and exhibitions that adhere to the high standards that are presently set out will be able to continue operating, while it ensures that the exploitation of wild animals in the arena of travelling circuses is now at an end.

As a result of the passage of this historic bill on to the statute book, we will in Scotland, finally and at last, truly be able to say:

“Nellie the elephant has packed her trunk and said goodbye to the circus.”

The Deputy Presiding Officer

I know that there is more of that to come.

15:52  



David Stewart (Highlands and Islands) (Lab)

Labour will support the Wild Animals in Travelling Circuses (Scotland) Bill at decision time.

As a member of the Environment, Climate Change and Land Reform Committee and a strong supporter of a number of animal welfare organisations such as OneKind, I moved a number of amendments that I felt would have improved the bill. I am grateful to the cabinet secretary and the committee for supporting my amendment on the offence ground.

At one level, one could argue that we are attempting to restrict something that does not happen, as we have no travelling circuses in Scotland. However, once passed, the bill will futureproof that position as it will be introduced on ethical rather than welfare grounds.

As the Scottish Parliament information centre paper makes clear, “circus” is Latin for a circle or a ring. One of the first major entertainment complexes in ancient Rome was the circus maximus, which held up to 300,000 spectators. Moving to more modern times, in 2014 the Scottish Government public consultation received more than 2,000 responses. A strong majority of 98 per cent were in favour of the ban, while 96 per cent were opposed to the performance or exhibition of wild animals.

As we have heard, the bill proposes to prohibit the performance, display or exhibition of wild animals in travelling circuses. The policy memorandum lists the Scottish Government’s view of the ethical challenges to society of using wild animals in travelling circuses, which are basically the impact on people’s respect for animals, the impact of travelling environments on the animals, and the ethical costs versus the benefits of such animal use.

On a technical point, the bill does not seek to prohibit circuses from travelling with wild animals but seeks to create a criminal offence of travelling with or transporting such animals for the purposes of performance, display or exhibition. The offender is liable, on summary conviction, to a fine not exceeding level 5, which is currently £5,000.

Enforcement will be by local authorities, but the philosophical underpinning is based on the five freedoms that were set out by the Farm Animal Welfare Council in 1979, which are basic freedoms relating to environment, diet, normal behaviour, housing with or apart from other animals, and protection from suffering, injury or disease.

As I said during the stage 1 debate, animal welfare organisations such as OneKind believe that there are strong animal welfare justifications for a ban on the use of wild animals in travelling circuses. OneKind’s excellent petition to the Public Petitions Committee said:

“A travelling circus combines a number of specific characteristics (including extreme confinement, frequent transport and relocation, and training for performance) which create an environment where the needs of wild animals cannot be met. This combination is not found elsewhere, even in zoos where wild animals are kept captive. It increases the risk of stress and, in some cases, ill-treatment of the animals, and makes effective inspection and regulation very difficult.”

Investigations into United Kingdom circuses in recent years have documented shocking examples of severe habitual abuse of animals. For example, in 1999, individuals from Chipperfield’s circus were found guilty of cruelty to a chimpanzee and an elephant and, in 2009, the beating of elephants prior to performance was filmed in the Great British Circus by Animal Defenders International. Earlier this year, a further exposé by Animal Defenders International showed an arthritic elephant named Anne being repeatedly beaten and abused by a member of staff in the Bobby Roberts circus.

As OneKind has argued, it is crucial that, in the future, there are no gaps in legislation covering performance, display or exhibition of animals in Scotland. The Scottish Government has announced its intention to develop new licensing requirements to protect the welfare of wild and domesticated animals in areas that are not covered by legislation.

I am pleased to support and endorse the bill.

15:56  



Graeme Dey (Angus South) (SNP)

The road to the point at which, in less than a couple of hours, we will, I hope, pass the bill has been long, to say the least. It was 13 years ago that the Scottish Executive consulted on the Animal Health and Welfare (Scotland) Bill and, in the process, identified significant concerns regarding the use of wild animals in travelling circuses, and it will be three years next month since the Scottish Government launched its consultation on introducing a ban. However, we are here now and rightly so. As children, many of us will have attended travelling circuses and marvelled at the lions, tigers and elephants, but times change and so does society’s view on what is and is not ethically or morally justifiable.

The scrutiny process that the Environment, Climate Change and Land Reform Committee undertook highlighted a number of issues, and I want to reflect on some of those. Criticisms were made about the justification for the bill, including its assertion that it was harmful to young people to see animals being used in such a way. It was pointed out that the opinion of children and young people had not actually been sought. Helpfully, however, in parallel with the committee’s consideration, the Scottish Parliament’s education service used the bill as a live example of the passage of legislation and asked school groups visiting Holyrood for their views on whether wild animals in travelling circuses should be banned. Of over 1,000 votes cast by nine to 13-year-olds, 81 per cent were in favour of introducing a ban.

As we head into the year of young people, the Parliament might do well to consider how we ought to more formally build on that sort of engagement. Young people have opinions—very often considered, valid and well-formed opinions—and we as MSPs ought to take those on board as we consider legislative change. I am pleased that the bill is widely supported by the next generation.

As we have heard, definitions were perhaps the main concern for the committee. We considered definitions to make clear what is and is not a circus and what therefore, when travelling, would or would not be captured by the bill, and what is and is not a wild or indeed a domesticated animal. In the absence of such definitions being offered by the Government in response to the committee’s stage 1 report, a number of members lodged amendments at stage 2. The amendments that were lodged by David Stewart, John Scott and Mark Ruskell were entirely constructive and well intentioned and they sought, in line with the committee’s stage 1 report, to secure helpful clarity. Unfortunately, as the stage 2 process unfolded, it became clear that none of them would achieve their laudable intentions and overcome the challenges that are involved in seeking to define circuses, wild animals or domesticated animals.

The exchanges on those matters were splendidly and humorously captured in a Holyrood magazine sketch that was penned by Liam Kirkaldy. If members have not read it, I highly recommend getting online and doing so. The discussions on the omissions of raccoon dogs, woolly lemurs, tamarins, vicuñas, night monkeys and squirrel monkeys and on the ambiguities surrounding wallabies in the context of John Scott and Mark Ruskell’s amendments were quite amusing at the time, and are even more so when wrapped up in a superbly written piece.

Of course, there is a serious side to the issue. Where possible, we needed to find some mechanism of addressing the legitimate concerns that had been highlighted. In the case of the definition of a circus at least, I appreciated the support of colleagues and of the cabinet secretary in backing a stage 2 amendment that I lodged, which affords ministers a power to bring forward regulations, either to define an activity that was perhaps contending that it was not a travelling circus, when it was indeed intended to be subject to the bill, or similarly, to define an activity that was never intended to be captured but might become the subject of efforts to contend that it was.

In moving the amendment, I made the point that, if accompanied by clear guidance, it would go some way to addressing the committee’s concerns and would not create wriggle room either to allow activities that should be captured by the scope of the bill to escape it, or to allow what might be described as acts or entertainments that were never intended to be captured to be caught.

I understand the concerns that were raised by the Delegated Powers and Law Reform Committee, but I hope that the cabinet secretary has addressed those in her comments.

In conclusion, Presiding Officer, let me acknowledge, as others have, the contribution made by a raft of individuals and organisations in getting us to the point that we are at today, and I welcome the cross-party support that it appears the bill will command at decision time.

16:00  



Finlay Carson (Galloway and West Dumfries) (Con)

In the stage 1 debate there were plenty of puns. My contribution will certainly not be as slick as Donald Cameron’s, but I ask members to bear with me, as it will certainly not be irrelephant. Perhaps the Labour group should have been leading today’s debate, with the bill going through Parliament at a time when the only circus to look forward to is the next Labour leadership election. Since Kezia Dugdale’s trip to visit the wild animals in the jungle, she certainly has the koalafications.

However, as I have said previously, the light-hearted manner in which members across the chamber have approached this and previous debates in no way reflects the serious manner with which we have dealt with the bill, or indeed the importance with which the committee and my colleagues treat any subject relating to animal welfare.

The Scottish Conservatives supported the general principles of the bill at stage 1 and lodged amendments at stage 2, reflecting the commitment that my colleagues and I have to ensuring we have good laws to secure the highest standard of animal welfare. We support a ban on the use of wild animals in travelling circuses on ethical and welfare grounds by delivering robust legislation.

Across the chamber, we have heard of a number of concerns over the drafting of the bill, which we now believe the cabinet secretary has taken on board. Those concerns were chiefly around definitions of a wild animal and a travelling circus. Our concerns have always been founded on the desire to see the most effective legislation without either leaving wriggle room for those who would seek to continue to use wild animals in this type of activity or outlawing other types of activity that were never intended to be covered by the bill, including llamas and raptors at country fairs or even sheepdog trials. Vague definitions risked criminalising those who put on a show or event where animals have to be transported to the event, and that needed to be clarified.

The committee’s view was that the bill as introduced did not fully address the issues that it set out to cover and that it was at serious risk of capturing animal performances and shows that it may not have been intended to cover. The bill as amended should now not result in another piece of weak legislation from the Scottish Government that will fall down or be ineffective in the courts.

The fact that little time was spent exploring the use of the ethical argument behind the bill indicates that right across the chamber, whether on welfare or ethical grounds, we believe that public performances by wild animals are no longer acceptable. The debate surrounding the bill has largely centred on poor drafting and fears that it had the potential to fail in what it sets out to achieve. We on these benches believe that significant progress has been made and we will be supporting the bill this evening.

16:03  



Colin Smyth (South Scotland) (Lab)

I am pleased to have the opportunity to contribute to what I hope will be the next step in ending cruelty and distress inflicted on animals in travelling circuses. Like you, Presiding Officer, I am a deputy convener of the cross-party group on animal welfare, so I was delighted that we unanimously agreed the principles of the bill when it was previously debated. I am sure that today we will also unanimously make it clear that the days of exploiting wild animals for human gratification in Scotland will soon be nothing more than a shameful memory, sending a welcome, powerful message about the value that we place on animal welfare.

The use of wild animals in travelling circuses is fundamentally cruel, and a full ban is the only way to stop that mistreatment returning to Scotland in future. Highly respected animal welfare charities such as OneKind have rightly made the powerful case that there are strong ethical and animal welfare grounds to ban the practice.

The mobile nature of travelling circuses means that they invariably fail to effectively recreate a wild animal’s natural environment. Animals are often subjected to restrictive conditions and uninteresting surroundings, without the space to recreate their natural behaviour, to explore, to socialise or to find food as they would in the wild. That can have a wide range of serious physical and psychological implications for the animals.

Likewise, the performances and tricks that animals are forced to do require intensive training and can inflict significant amounts of pain and distress on the animals. There is widespread use of negative reinforcement and, in some instances, abusive training techniques. Even in instances of best practice, the very act of forcing wild animals to perform on command alters their natural behaviour and suppresses their natural instincts, which is directly in opposition to their welfare and is fundamentally unethical.

There is a great deal of research into the impact of travelling circuses on the welfare and wellbeing of wild animals that supports that view. The conclusion of research that was undertaken by the Welsh Government was that

“captive wild animals in circuses and other travelling animal shows do not achieve their optimal animal welfare requirements”

and

“the evidence would therefore support a ban”.

Those are not problems that can be fixed through increased regulation or strengthened guidelines; they are inherent to travelling circuses and must be addressed with a full ban.

We now have considerably more insight into the intelligence and sentience of wild animals than we did in the past, yet the appalling use of wild animals for entertainment continues. By reducing wild animals to a source of entertainment at the expense of their wellbeing, travelling circuses contribute to a culture that undervalues the welfare and rights of animals.

The bill as introduced was by no means perfect. I thank the Environment, Climate Change and Land Reform Committee, which has tried to tackle those imperfections and shortcomings through its commendable work on the bill, which has pre-empted many of the potential problems that the bill might have faced. It is vital that the laws that we pass are legally watertight and easily enforceable, and the changes that have been made in line with the committee’s recommendations have significantly improved the bill. The inclusion of more clearly defined terms and the establishment of ministerial powers to clarify those definitions protect against wilful misinterpretation and potential loopholes, although more could have been done to incorporate that message in the bill itself. Likewise, I am pleased that David Stewart’s amendment clarifying what constitutes an offence was also agreed.

However, I am disappointed that the Scottish Government has failed to respond to other points that were raised by the committee and by members during the stage 1 debate. In particular, serious concerns were raised by council officials and the Scottish Society for the Prevention of Cruelty to Animals about the practicalities of enforcement. The discretionary nature of local authorities’ enforcement duty, combined with the continued cuts to their budgets, pose serious questions about the bill’s enforceability. Enforcement on the ground must be closely monitored and the possibility of an inspector appointed by ministers must be revisited should there be any evidence of problems in that regard.

There is also a need to ensure that there are no gaps in legislation covering performance, display or exhibition of animals in Scotland, and I look forward to the Scottish Government coming forward with new licensing requirements to further protect the welfare of all animals that are used for public performances, including those that are not covered by the bill.

The bill is a positive step forward that finally consigns this archaic, outdated cruelty to the history books where it belongs.

16:08  



Mark Ruskell (Mid Scotland and Fife) (Green)

I declare an interest as a member of the British Veterinary Association.

I welcome today’s stage 3 debate, which marks a watershed moment. For years, there have been incremental improvements in welfare legislation to protect key freedoms and place responsibilities on animal keepers, but this is the first time that ethical reasons have been used alongside the welfare evidence to bring about a change, and that is welcome.

The bill fundamentally recognises that meeting basic welfare needs is not enough and that for a wild animal to be unable to display its natural behaviours for its entire life is unethical and unacceptable. The educational benefits of seeing wild animals in a travelling circus and the conservation benefits are non-existent. There might have been educational benefits in an age before the internet or TV, but we live in a different world in which the power and grace of a hunting tiger or the social intelligence of an elephant is displayed on prime-time TV or on the digital whiteboard of a school classroom.

Today, an important precedent is being set for anyone who is concerned about the rights of animals. and it begs the question about where we go next. I welcome the Government’s commitment to review further the regulations of all performance animals. It would have been better to have conducted the full review in advance of the introduction of the bill, as the Welsh Government did, with clear conclusions as to which animal performances to ban, regulate further or leave alone. The use of wild animals in travelling circuses is the starkest example of a practice that needs to be banned, but we should not have closed minds when it comes to reforming how domestic and wild animals are used in other performances, particularly in static circuses.

Although some members might poke fun at the idea of Christmas reindeer or birds of prey displays at garden centres being further regulated, I ask them to look at the evidence with an open mind. If there are welfare issues that need to be answered, why would we not want to regulate further?

I turn to the bill’s consideration at stage 2. It is clear that there were concerns about which animals should be included in the ban and about the definition of a circus. The fact that the cabinet secretary pointed out that there were omissions in John Scott’s amendment and my amendment suggested to me that there probably is a list of animals that the Government considers are captured by the ban but that the Government just does not want to include it in the bill.

However, the committee’s central argument that there needed to be greater definition has been acknowledged, and I welcome the fact that draft guidance has been produced by the Government and a commitment has been given that it will be finalised and introduced at the same time as the act is implemented.

I believe that officials have written out to stakeholders stating that the guidance cannot give a definitive interpretation of the law and that questions of interpretation are ultimately determined by the courts. I hope that we do not get to the point of a court test and that the eventual guidance proves adequate.

The bill is a further step in our journey towards having a society that respects and values animals. There are many more steps to take, but I look forward to approving the bill at decision time tonight.

16:11  



Liam McArthur (Orkney Islands) (LD)

As Mark Ruskell did, I declare that I am an honorary member of the BVA. Unlike most other speakers in the debate, I do not have the benefit of having sat through the committee’s deliberations. Therefore, I am all the more grateful to the ECCLR Committee for its efforts and to all those people who submitted evidence on the bill, which is an important piece of legislation that the Scottish Liberal Democrats strongly support and look forward to voting for later on this afternoon.

The concerns that I outlined at stage 1 were shared by most members. I concentrated on a couple of areas—the decision to pursue an ethical approach rather than a welfare approach, and the definitional problems that others have already articulated. I am pleased that considerable progress appears to have been made on the latter since the stage 1 debate. I think that David Stewart and Graeme Dey have had a hand in that. I acknowledge the movement from the Government in addressing many of those concerns, and I note that OneKind and Animal Defenders International believe that a combination of regulation-making powers and draft guidance have successfully addressed a number of the concerns that they identified at stage 1.

I note that the cabinet secretary has clarified that the ban is targeted at travelling circuses, so that static circuses and any other enterprises that are not considered to be travelling circuses are not caught by the ban, and that the ban applies only when animals are being transported. I know from correspondence that I received from a constituent that there are people who wish the legislation to be extended to cover a far wider range of circumstances, including fixed animal shows involving sea mammals, falconry or other animals. I understand why the Government and the committee were reluctant to go down that route in the context of this bill, but I acknowledge that the Scottish Government has since announced its intention to develop new licensing requirements to protect all wild and domestic animals that are involved in displays or performances that are not addressed by the bill or in those that take place in licensed zoos. I look forward to considering those proposals in due course.

In the meantime, the use of a regulation-making power—which will be subject to the affirmative procedure—to establish and amend the types of animals that will be covered seems to me to be a sensible approach. As the cabinet secretary said, it is also the approach that is taken to secondary legislation on animal welfare. It seems to be a logical approach and one that will allow the committee to scrutinise any such regulation in due course.

As for the debate about whether an ethical or a welfare approach should be taken, the cabinet secretary expressed concern about the lack of evidence that existed for a welfare approach and the fear that the adoption of such an approach could leave the bill open to legal challenge. I am not entirely sure that I know where the committee got to in that debate, but the issue did not seem to present a reason to delay or reject the bill.

In conclusion, the Scottish Liberal Democrats welcome the ban on using wild animals in travelling circuses, which reflects our values as a society and the importance that we attach to the highest standards of animal welfare.

16:15  



Angus MacDonald (Falkirk East) (SNP)

I am sure that I speak for all members of the committee when I say that I am pleased to see the bill finally being put to sleep at the end of stage 3, not least because the issues relating to the use of wild animals in circuses have been the subject of deliberation by campaigners, policy makers and legislators for decades. As we know, part of the existing framework for regulation in this area is covered by the Performing Animals (Regulation) Act 1925, and the issue was raised again in responses during the passage of the Scottish Government’s Animal Health and Welfare (Scotland) Act 2006.

There are some clear reasons why the scope of the bill that we are debating today has been purposely focused on wild animals in travelling circuses, but it is mainly because the use of wild animals in travelling circuses involves animals whose nature is still genetically and behaviourally hardwired; the performance of behaviours or tricks for entertainment that are not natural behaviours; and inadequate temporary or mobile accommodation that does not allow animals to act naturally. It is also because there is little or no educational or conservation value in such animals’ appearance in a travelling circus. All those issues combine to present a cumulative ethical challenge to Scottish society, giving strong ethical reasons for the ban.

I am delighted that Scotland is leading the way on improving animal welfare, not just through this bill but through plans to develop new licensing requirements to protect the welfare of wild and domestic animals that are used for public performances or display in circumstances that are not covered by the bill. I understand that that will be achieved through a Scottish statutory instrument under the 2006 act, which will require further consultation and an affirmative resolution. There is more work to do, although that legislation is intended to apply to all wild and domestic animal displays or performances except for those that are already banned under the bill or those taking place in zoos that are already licensed under zoo legislation. Hopefully, that means that there will be no gaps once the legislation is introduced.

At the start of the passage of this bill, concerns were voiced by those who felt that a more comprehensive approach would be preferable to what they saw as the piecemeal approach that was being taken. Andrew Mitchell from the City of Edinburgh Council called for there to be one piece of legislation. However, it was acknowledged, not least by Nicola O’Brien of the Captive Animals Protection Society, that a comprehensive review of legislation would be a lengthy process, and that taking action now would have more immediate impact. I am content that the so-called piecemeal action is delivering the desired outcome much more quickly than would otherwise have been the case. The bill will enable the ban to be put in place immediately.

Colin Smyth raised the issue of inspections and enforcement. Earlier in the process, I had concerns about that, but I am satisfied that we have got it right at this stage.

I was pleased to see the inclusion of children and young people in the consultation process; the committee did not just go through a box-ticking exercise, but ensured that their opinions were heard. One of the key ethical concerns on which the bill is based includes the adverse impact that seeing wild animals in travelling circuses might have on children and young people, with regard to the development of respectful and responsible attitudes to animals in general. An overwhelming majority of respondents to the Scottish Government’s consultation—94.7 per cent—agreed that that was a concern, which is why the committee identified the importance of engaging with children and young people on the issue. The committee convener, Graeme Dey, alluded to that. As a result, 1,045 children and young people were asked, through the Scottish Parliament education service, whether it should be an offence to use wild animals in travelling circuses, and 815 responded in favour of a ban. In addition, an online survey that was conducted with Young Scot last September asked young people aged 11 to 25 the same question. Some 80 per cent of the respondents agreed or strongly agreed with the proposed ban, and 57 per cent agreed or strongly agreed that seeing wild animals in travelling circuses would make young people respect them less.

Judging by the verdict of the next generation of decision makers, it is clear that we have taken the right steps to tackle this important ethical issue in the most timely way possible. I am pleased that we are leading the way in the UK.

16:19  



Claudia Beamish (South Scotland) (Lab)

Scottish Labour welcomes the passing of the bill, which is, I hope, imminent. As the cabinet secretary stated, wild animals in circuses should not be a spectacle.

Today the subject was travelling circuses. This must surely lead to a similar position being taken on static circuses. In the committee, there was much discussion about the protection of wild and domestic animals performing in other venues, whether travelling or not, and that must be addressed in future. Mark Ruskell and others stressed that point.

David Stewart highlighted welfare issues, as did others. Scottish Labour has a robust approach to animal welfare and ethics under his leadership in that brief, and animals in circuses is one of a range of issues that we must go on to tackle. Ensuring that the legislation on hunting with dogs is fit for purpose, banning shock collars, fighting to reverse tail docking exemptions, consulting on a ban of culling mountain hares, and tackling the exotic animal trade are a few of those issues.

Today, Emma Harper has a members’ business debate called adopt don’t shop, which is timely, coming before Christmas. That and many other actions across the chamber show that there is cross-party support for many of the animal welfare and ethics issues that Parliament will address in the rest of the session. Angus MacDonald and Graeme Dey spoke about the next generation’s interest in and concern about those issues.

Definitions in bills always take up committee and Scottish Government time—rightly so—and this bill was no exception. Sometimes we revert to commonsense approaches and, at other times, it seems to be correct to define or have lists in secondary legislation. That has been challenging in the consideration of this bill. The committee grappled with definitions throughout the bill process, as did the Scottish Government. We discussed circuses with or without tents, definitions of wild and domestic animals, and lists. It is reassuring that the bill was amended at stage 2 to grant Scottish ministers the power to

“by regulations describe a particular type of undertaking, act, entertainment or similar thing”

that is or is not to be regarded as a travelling circus

“for the purposes of this Act.”

On the definition of a wild animal, I am convinced that the power that was agreed at stage 2 provides certainty in difficult or borderline cases to ensure that circus operators know what kind of animal may or may not be used in travelling circuses in order to avoid committing an offence. It is also reassuring that the regulations will be subject to the affirmative procedure.

The lawyers among us, including the cabinet secretary and Donald Cameron, made the point that it is not just that the definitions were arcane; definitions must be as exact as possible. The cabinet secretary’s earlier remarks relating to the Delegated Powers and Law Reform Committee’s deliberations were reassuring.

The committee heard evidence from local authorities about enforcement procedures and Angus MacDonald gave us some reassurance on that. Absolute clarity in regulation and guidance is essential to ensure that action can be taken. Cuts to budgets could cause challenges for local authority officers. However, in its briefing for stage 3, OneKind states:

“The Scottish Government has issued clarification on a number of points raised in the Stage 1 report, has created regulation-making powers to clarify definitions, and has produced draft guidance that clarifies some of the most significant policy areas. OneKind is grateful to the Scottish Government and to Members of the ECCLR Committee for probing these issues.”

I think and hope that we have got it right. In the words of my colleague Colin Smyth, having wild animals in travelling circuses is fundamentally cruel. We strongly support a ban and look forward to the passing of the bill and to the Parliament debating and acting on animal ethical and welfare issues in the future.

16:23  



John Scott (Ayr) (Con)

I declare an interest as an honorary member of the British Veterinary Association. Along with it, I welcome the passage of the bill.

The BVA and the Scottish Conservatives believe that the needs of non-domesticated wild animals cannot be met in the environment of a travelling circus, where their ability to express normal behaviour is likely to be restricted. We therefore welcome the passing of the bill, which builds on the five welfare needs of animals as detailed in the Animal Health and Welfare (Scotland) Act 2006 and which allows Scotland to be first in developing such legislation in the United Kingdom.

We welcome the cabinet secretary’s assurances that she will develop guidance as required in the bill, and the Environment, Climate Change and Land Reform Committee is grateful to the Delegated Powers and Law Reform Committee for picking up the Government’s oversight in that regard when lodging its stage 2 amendment on definitions of wild animals.

We acknowledge the hard work of our clerks in the ECCLR Committee and the Parliament’s bill team, who have supported us by helping with amendments as well as with the bill. We also thank the many witnesses who gave evidence to us in committee as well as those who responded to our call for evidence at stage 1, and we trust that the bill will prevent wild animals from ever performing in travelling circuses in Scotland again.

I joined the committee in the autumn, when discussions about the definitions of travelling circuses and wild animals and about lists of animals were still going on. David Stewart, Mark Ruskell, Donald Cameron, Graeme Dey and I can perhaps call ourselves survivors of that debate. We have all referred to that today and, like them, I had residual concerns over those definitions. The amendments that the Government lodged at stage 2 were a welcome response to the probing amendments that were lodged by David Stewart, Mark Ruskell and me at that time.

I also acknowledge that the Government has endeavoured to respond to the concern of the DPLR Committee and others that the effect of the powers in new sections 3A(1)(a), 3A(2)(a), 3B(1)(a) and 3B(2)(a) is unusual in principle because the provisions are indicative only and the regulations are apparently not sufficient or the appropriate form of instrument to deliver the interpretations that the amendments seek to provide. I welcome the cabinet secretary’s detailed assurances today that guidance, which is a more appropriate form of instrument, will be developed to address the concerns of the DPLR Committee and to make clearer the intentions of the bill. The guidance should be put in place forthwith, and it should be available when the bill becomes law after receiving royal assent. I welcome the cabinet secretary’s assurance today that the guidance will be available timeously.

Our work is done with regard to the Wild Animals in Travelling Circuses (Scotland) Bill. Again, our grateful thanks go to those who have contributed in any way to the passage of the bill, and I look forward to the cabinet secretary’s closing remarks. The Conservatives will vote for the bill at decision time.

The Deputy Presiding Officer

Thank you, Mr Scott. I call Roseanna Cunningham to close for the Government. Cabinet secretary, you can have seven minutes if you want. You obviously do not—well, six minutes then.

16:27  



Roseanna Cunningham

I will speak very slowly, Presiding Officer.

I thank all the members who are here today and who have taken part in a lively, informed and very interesting debate. The subject is of intrinsic interest even to those who may simply have wandered into the chamber or who are on chamber duty—as it is known—to listen to some of the concerns and issues, which people may not have thought were anything to do with this particular bill. A number of members commented on the fact that that is precisely the kind of thing that happens when a committee begins to unpack something that looks relatively straightforward on the surface. The minute that one begins to look at it with some care and detail, one understands that it is not as straightforward or as simple as it looked at first sight.

The debate has been constructive, as was the engagement all the way through the process, and it is a joy—sometimes a rare joy in a parliamentary set-up—to be able to say that. It reflects the concern that people have and demonstrates the extent to which we all agree on the importance and value of the good intentions behind the bill.

I have been struck today, as I was at stage 1, by members’ passion for this issue. However, I am grateful that they have looked beyond a purely emotional response, which would have been the easy approach, in order to fully unpack the practicalities around the proposed prohibition, some of which I dealt with in my opening speech. Those issues reflect the fact that this is not a fixed situation. I referred to llamas and alpacas in my opening speech, but that was not meant to be a joking reference. Those animals would have seemed exotic and wild to our parents’ generation but look like domesticated animals to us now. They have undergone a change in how they are viewed and treated and in how they live in our country.

I thank the Parliament and all the members of the Environment, Climate Change and Land Reform Committee—indeed, all the members of the Delegated Powers and Law Reform Committee, too—for their constructive comments and invaluable support during the bill’s passage.

Furthermore, I thank all the organisations and stakeholders in the animal welfare sector and the circus industry, local authorities and representatives of our screen industry who made constructive contributions to the debate. I look forward to including them in continuing dialogue as we hopefully move forward to implement this landmark bill.

I cannot mention everyone, but I pay particular tribute to OneKind for lodging the petition that brought the issue of wild animals in circuses sharply back into focus in 2011 and to the Convention of Scottish Local Authorities for its continuing help to make the bill and the accompanying guidance fit for purpose.

John Scott

Colin Smyth raised the matter of local authorities. Is the cabinet secretary optimistic that the amendments that she lodged at stage 2 and the guidance that she will issue after today will be sufficient to ensure that local authorities are less likely to have to go to court?

Roseanna Cunningham

We will continue to engage with stakeholders including COSLA. I thank the ever-gallant John Scott for his intervention, which helped to use up some time.

I pay tribute to the travelling circus industry. This has been a difficult issue for it. The few circuses in the UK that still use wild animals are small family-run operations for which the circus is not so much a business as a way of life. They have debated and co-operated throughout the development of the bill with courtesy and openness, and I remind them that travelling circuses without wild animals will always be welcome in Scotland. Our circus sector is an example of how circus can develop as an art form and remain popular without using wild animals.

I will take a minute or two to go through some of the speeches that we have heard this afternoon. A couple of members—Donald Cameron and Finlay Carson—tried to bring some humour to the debate. I have to say that Donald Cameron carried that off a little better than Finlay Carson, whose own colleagues looked perplexed and then somewhat bemused by his attempts to inject some humour into proceedings. However, they did try, and that has been a mark of how engagement on the bill has proceeded throughout the process.

Donald Cameron rightly flagged up the role of the Environment, Climate Change and Land Reform Committee. If members think that the jokes that have been cracked here are funny, they should look up the proceedings of the committee and read the Holyrood magazine article that Graeme Dey mentioned.

David Stewart attempted a lesson in Roman history, which was interesting, but he also highlighted abuses and reminded us of the reason why we are here.

Graeme Dey referred helpfully to the views of young people. It is easy to forget about the extensive survey work that was undertaken and how important it was in the early stages of the bill.

I say to Mark Ruskell that there really is no list. The committee and the member himself must surely be aware of how difficult compiling a list would be, having attempted the exercise themselves. Peter Jolly’s circus had a list of wild animals that the circus was using, one of which was a zebu. I have no idea what a zebu is—I would guess that it is a hybrid of a zebra and something else—but it is an example of what would have been left off any attempted list of wild animals, which shows why there is no list.

Mark Ruskell

Will the cabinet secretary take an intervention?

Roseanna Cunningham

I am at the limit of the time that I have for my closing speech.

I ask members to support the motion and agree that the Wild Animals in Travelling Circuses (Scotland) Bill be passed.

Final vote on the Bill

After the final discussion of the Bill, MSPs vote on whether they think it should become law.

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Final vote transcript

The Presiding Officer (Ken Macintosh)

There are four questions to be put as a result of today’s business.

The first question is, that motion S5M-09648, in the name of Roseanna Cunningham, on the Wild Animals in Travelling Circuses (Scotland) Bill at stage 3, be agreed to. Because it is a stage 3 decision, we will have a division.

For

Yousaf, Humza (Glasgow Pollok) (SNP)
Wightman, Andy (Lothian) (Green)
Whittle, Brian (South Scotland) (Con)
White, Sandra (Glasgow Kelvin) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Tomkins, Adam (Glasgow) (Con)
Todd, Maree (Highlands and Islands) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Smyth, Colin (South Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smith, Elaine (Central Scotland) (Lab)
Simpson, Graham (Central Scotland) (Con)
Scott, Tavish (Shetland Islands) (LD)
Scott, John (Ayr) (Con)
Sarwar, Anas (Glasgow) (Lab)
Russell, Michael (Argyll and Bute) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Rumbles, Mike (North East Scotland) (LD)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Robison, Shona (Dundee City East) (SNP)
Rennie, Willie (North East Fife) (LD)
Neil, Alex (Airdrie and Shotts) (SNP)
Mountain, Edward (Highlands and Islands) (Con)
McNeill, Pauline (Glasgow) (Lab)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McAlpine, Joan (South Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mason, Tom (North East Scotland) (Con)
Mason, John (Glasgow Shettleston) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacDonald, Angus (Falkirk East) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lochhead, Richard (Moray) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Leonard, Richard (Central Scotland) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Kerr, Liam (North East Scotland) (Con)
Kelly, James (Glasgow) (Lab)
Johnstone, Alison (Lothian) (Green)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Hyslop, Fiona (Linlithgow) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Griffin, Mark (Central Scotland) (Lab)
Greer, Ross (West Scotland) (Green)
Greene, Jamie (West Scotland) (Con)
Gray, Iain (East Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Golden, Maurice (West Scotland) (Con)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Finnie, John (Highlands and Islands) (Green)
Fee, Mary (West Scotland) (Lab)
Fabiani, Linda (East Kilbride) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Dornan, James (Glasgow Cathcart) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dey, Graeme (Angus South) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Crawford, Bruce (Stirling) (SNP)
Corry, Maurice (West Scotland) (Con)
Constance, Angela (Almond Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Chapman, Peter (North East Scotland) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Carlaw, Jackson (Eastwood) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Cameron, Donald (Highlands and Islands) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Briggs, Miles (Lothian) (Con)
Bowman, Bill (North East Scotland) (Con)
Bibby, Neil (West Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Beamish, Claudia (South Scotland) (Lab)
Ballantyne, Michelle (South Scotland) (Con)
Balfour, Jeremy (Lothian) (Con)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Arthur, Tom (Renfrewshire South) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Adam, George (Paisley) (SNP)

The Presiding Officer

The result of the division is: For 112, Against 0, Abstentions 0.

The motion has been agreed to and the Wild Animals in Travelling Circuses (Scotland) Bill has been passed. [Applause.]

Motion agreed to,

That the Parliament agrees that the Wild Animals in Travelling Circuses (Scotland) Bill be passed.

The Presiding Officer

The next question is that, motion S5M-09682, in the name of Joe FitzPatrick, on approval of a Scottish statutory instrument, be agreed to.

Motion agreed to,

That the Parliament agrees that the Police Investigations and Review Commissioner (Application and Modification of the Criminal Justice (Scotland) Act 2016) Order 2017 [draft] be approved.

The Presiding Officer

The next question is that, motion S5M-09683, in the name of Joe FitzPatrick, on designation of a lead committee, be agreed to.

Motion agreed to,

That the Parliament agrees that the Economy, Jobs and Fair Work Committee be designated as the lead committee in consideration of the legislative consent memorandum in relation to the Financial Guidance and Claims Bill (UK Legislation).

The Presiding Officer

The final question is that, motion S5M-09681, in the name of Joe FitzPatrick, on approval of the Criminal Legal Assistance (Miscellaneous Amendments) (Scotland) Regulations 2017, be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Yousaf, Humza (Glasgow Pollok) (SNP)
Wightman, Andy (Lothian) (Green)
White, Sandra (Glasgow Kelvin) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Smyth, Colin (South Scotland) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Scott, Tavish (Shetland Islands) (LD)
Sarwar, Anas (Glasgow) (Lab)
Russell, Michael (Argyll and Bute) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Robison, Shona (Dundee City East) (SNP)
Rennie, Willie (North East Fife) (LD)
Neil, Alex (Airdrie and Shotts) (SNP)
McNeill, Pauline (Glasgow) (Lab)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McAlpine, Joan (South Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacDonald, Angus (Falkirk East) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Lochhead, Richard (Moray) (SNP)
Leonard, Richard (Central Scotland) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Kelly, James (Glasgow) (Lab)
Johnstone, Alison (Lothian) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Hyslop, Fiona (Linlithgow) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Griffin, Mark (Central Scotland) (Lab)
Greer, Ross (West Scotland) (Green)
Gray, Iain (East Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Finnie, John (Highlands and Islands) (Green)
Fee, Mary (West Scotland) (Lab)
Fabiani, Linda (East Kilbride) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Dornan, James (Glasgow Cathcart) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dey, Graeme (Angus South) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Crawford, Bruce (Stirling) (SNP)
Constance, Angela (Almond Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Bibby, Neil (West Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Beamish, Claudia (South Scotland) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Arthur, Tom (Renfrewshire South) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Adam, George (Paisley) (SNP)

Against

Whittle, Brian (South Scotland) (Con)
Tomkins, Adam (Glasgow) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Simpson, Graham (Central Scotland) (Con)
Scott, John (Ayr) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mason, Tom (North East Scotland) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lindhurst, Gordon (Lothian) (Con)
Kerr, Liam (North East Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Greene, Jamie (West Scotland) (Con)
Golden, Maurice (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Corry, Maurice (West Scotland) (Con)
Chapman, Peter (North East Scotland) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Carlaw, Jackson (Eastwood) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Briggs, Miles (Lothian) (Con)
Bowman, Bill (North East Scotland) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Balfour, Jeremy (Lothian) (Con)

The Presiding Officer

The result of the division is: For 86, Against 25, Abstentions 0.

Motion agreed to,

That the Parliament agrees that the Criminal Legal Assistance (Miscellaneous Amendments) (Scotland) Regulations 2017 [draft] be approved.

This Bill was passed on 20 December 2017 and became an Act on 24 January 2018. 
Find the Wild Animals in Travelling Circuses (Scotland) Act on legislation.gov.uk

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