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Welfare of Wild Animals in Travelling Circuses (England) Regulations 2012

Volume 740: debated on Wednesday 24 October 2012

Considered in Grand Committee

Moved by

That the Grand Committee do report to the House that it has considered the Welfare of Wild Animals in Travelling Circuses (England) Regulations 2012.

Relevant document: 7th Report from the Joint Committee on Statutory Instruments

My Lords, these regulations mark the first step in delivering the Government’s policy on the use of wild animals in travelling circuses. That policy was set out in Written Ministerial Statements by my noble friend Lord Taylor of Holbeach to the House on 1 March and 12 July. The Government are introducing regulations now to address welfare concerns surrounding wild animals in travelling circuses.

Noble Lords are aware that we are intending to ban the use of wild animals in travelling circuses on ethical grounds via primary legislation. Given the time needed for the Government to prepare and Parliament to scrutinise and debate such banning legislation, as well as any reasonable time allowed for the circuses themselves to adjust to a ban, the regulations are necessary to set clear welfare standards for any travelling circus wishing to operate in England that uses a wild animal.

The regulations will fill a gap in legislation. Whereas zoos or private collections require licences to keep certain wild species, circuses keeping the same animals are exempt. Due to the travelling nature of circuses, the regulations will be administered and enforced centrally by Defra, with inspections by appropriately qualified veterinary inspectors drawn from the existing list of zoo licensing veterinary inspectors.

All travelling circuses that include wild animals will require licences. The annual fee for a licence has been calculated to cover the administration cost to Defra. Additionally, circuses will have to pay the full cost of inspections as well as for any improvements to their facilities and procedures that may be required. The inspection fee in these regulations mirrors that of zoo licensing veterinary inspections.

The number of inspections required is not stipulated in the regulations in order to allow flexibility to ensure that standards are being met. However, we envisage that there will be at least three inspections per licence period: announced inspections at winter quarters and while on tour, plus at least one unannounced inspection.

Operators will have to supply Defra with a stock list of the wild animals to be covered by the licence. Detailed records for each licensed animal must be kept. Only wild animals on the stock list may form part of the travelling circus and circuses must notify Defra when they intend to add a wild animal. They must also inform Defra of their tour itinerary well in advance of the first performance.

Each circus must appoint a lead vet who has appropriate expertise to understand the needs of, and be able to treat, licensed animals. Quarterly checks are required of all licensed animals, conducted by a veterinary surgeon with appropriate expertise, in addition to any sporadic visits, for example, to treat animal illnesses. At least two of these quarterly visits must be conducted by the lead vet, one at winter quarters and one on tour. Detailed group and individual care plans must be prepared, agreed by the lead vet, and followed at all times. They must be reviewed regularly by a veterinary surgeon.

Unsupervised access to licensed animals will be restricted to persons with appropriate qualifications or experience. Circuses must maintain a list of the persons authorised to access and care for the licensed animals, and ensure adequate staffing levels. A list of those persons on duty looking after licensed animals must be clearly displayed to staff.

The regulations also set out welfare conditions that cover a licensed animal’s environment including diet, transportation, use during display, training and performance. These requirements are supported by guidance setting out good practice when meeting the needs of licensed animals. Supplementary guidance is provided for some species, especially those known to have been used recently in travelling circuses.

These regulations address concerns surrounding the use of wild animals in travelling circuses. For the first time there will be a set of clear welfare standards that all travelling circuses with wild animals must follow. While we are developing the promised ban on ethical grounds, we are confident that these regulations, combined with the provisions of the Animal Welfare Act 2006, will provide significant protection for wild animals in travelling circuses, and I commend them to the Committee.

I thank the Minister for his comments reiterating the Government’s commitment to move towards a ban on the use of wild animals in travelling circuses. That is clearly the will of the majority of the general public, the House of Commons and, I am sure, many Members in this House. Although I do not want to make any party political points, it is also Liberal Democrat Party policy.

The best that I can say about these regulations is that I do not oppose them as a temporary measure; indeed, it is clear that they may improve the protection of the welfare of animals kept in circuses. However, it would be fair to say that the majority view among the welfare organisations and indeed the veterinary profession is that adequate regulations cannot be put in place to guarantee the welfare of wild animals used in travelling circuses.

I have three questions for the Minister. The first relates to the standards that have been put forward in relation to comparative industries. There is a debate about whether these regulations are at a lower standard than those of the comparable industry of zoos. The example used is that of elephants. According to these regulations they would have between one-sixth to one-quarter of the space that they would get in a standard zoo. Indeed, under these regulations elephants can be chained and confined every night on the road. Do we feel that these welfare standards are comparable with comparative industries?

Secondly, having been through the impact assessment very carefully, I could not find notification of any animal welfare organisations, or indeed any veterinary organisations, that are in favour of these regulations. I understand that a majority of animal welfare groups—all of the major animal welfare groups—declined to participate in the consultation. While the BVA—the British Veterinary Association—did participate, it is opposed in principle to regulation. Are there any major welfare or veterinary organisations in this country that favour going down the route of regulation rather than moving straight to a ban? Given that 95% of the respondents to the consultation were in favour of the outright ban that the Minister recommitted the Government to move towards, were there any outstanding legal concerns where a ban based on ethical grounds could be challenged if it was undertaken under Section 12 of the 2006 Act, as ethical grounds may not be deemed sufficient for its purposes?

In fact, I am the Lord Chairman, but we follow the normal custom of addressing Members of the Committee as “My Lords”.

I fully accept that definitive assessment.

My view is that Defra has been playing around with this for many a long day without real purpose. It is clear that primary legislation is required to ban the use of wild animals in circuses. What we are told—and one has to accept it because it is obvious—is that primary legislation takes some time to create.

Nevertheless, while one can concede—and I do—that these regulations are an improvement on the existing situation, we have to remember that the whole concept of the circus is built on cruelty. It is built on prodding and whipping the animals. It is built on the fact that poor-quality staff are employed; and behind the scenes cruel practice exists in training. Although the committee of experts suggested that the animals were not at hazard, were well fed, watered and so on, nevertheless they are cribbed, cabined and confined. They have to travel around and they are much restricted. You only have to see behind the scenes, as I have done over the years, a trainer raising a whip and an animal immediately or very often subsiding. It is clear that much cruelty is involved.

I apologise, but my name is up on the Annunciator and it is not me speaking. I would hate for my noble friend to be mistaken for me. That would be quite unfair.

My goodness me. Given my noble friend’s advanced age, he gets up on his feet rather more quickly than I do. I must admit that the noble Lord, Lord Forsyth of Drumlean, stopped me in the Corridor the other day and said, “Lord Gilbert, that is a splendid contribution you have just made”. After all, I am a good-looking chap and my noble friend is just Lord Gilbert. You have to take that into account.

At any rate, I do not wish to say more. I have expressed my views. These regulations are marginally better, but my true condemnation is of Defra. I honestly believe that it has dragged its feet on this issue for years.

My Lords, I received an e-mail from the animal welfare groups, which raised a number of concerns. The RSPCA, the BVA, the Born Free Foundation and CAPS asked me to attend these discussions on the regulations because they said that they were unenforceable, unethical, ineffective and in conflict with the Government’s promises.

I listened to my noble friend’s introduction which I think made it quite clear that these concerns are significantly overplayed. The regulations will, for the first time, set in law tough but clear welfare standards for those few remaining travelling circuses in England that use wild animals. They will require these travelling circuses to be licensed, with regular inspections by Defra-appointed inspectors, as well as routine visits by vets, which will ensure that high welfare standards are maintained.

When I saw this statutory instrument down for discussion, I rang my good friends Toti and Nell Gifford. These two wonderful people own a travelling circus in the Gloucestershire area. They do not have any wild animals. In fact, last time I saw them, the wild animal act involved a goose and some ducks, and they are not at all described as domesticated. They have horses, bareback riders, clowns and acrobats. I was hoping for some help from Nell and Toti with my remarks, but they are obviously busy with the circus and have no time for paperwork. However, a short e-mail eventually arrived the day before yesterday. He told me that all he wants to happen,

“is that animals that are used in circuses should have the highest standards of husbandry and should be monitored frequently, preferably with input from professionals from outside the entertainment sector—eg wildlife conservationists. In the case of horses, it would be helpful to seek the co-operation of the BHS to create a trade standard or operational certificate”.

The regulations achieve this.

The use and welfare of any animals, domesticated or wild, in circuses is understandably a matter of public concern. These regulations respond to the welfare concerns by ensuring that circus operators will now know what is expected of them, and the public will know that these standards are being enforced.

My Lords, I have not carried out the same amount of research as the noble Lord, Lord Colwyn, but I did watch “Madagascar 3” on the airplane coming back from Doha the other day. That is an interesting film as the prevailing mood is that wild animals should not be used in circuses but in that major blockbuster the zoo animals own a circus. I raise that point as it is interesting to see how trends change.

We are talking about a total of between 30 and 50 animals, with the consensus being around 39. These stopgap measures are useful as they will increase costs. Consequently, many circuses will consider whether it is economically viable to continue to keep wild animals given that the whole industry has an estimated turnover of a mere £2 million. When one considers the number of circuses in existence, that figure shows that it is not the most lucrative of professions.

My son requested me to ask the following question as we visit Zippos Circus, which comes to Hampstead Heath once a year. Last year I noticed protestors complaining about the use of horses. I was extremely impressed by the circus’s standards of animal welfare for its domesticated animals such as horses and budgerigars. I asked the Minister earlier to ensure that budgerigars are not considered to be wild animals in this context. I very much hope that he will take into account the cost of veterinary intervention. Obviously, I am against the use of wild animals in circuses but I hope that the cost of veterinary intervention for domesticated animals—that does not seem to be a massive issue at present—has been taken into account.

My Lords, I welcome some movement on this issue by Defra because, like others, including the noble Lord, Lord Kirkhill, I very much agree that the use of wild animals in circuses is not appropriate. However, I am not talking about domesticated animals. I also agree that wild animals are treated cruelly in circuses. I noted the Minister’s comment right at the beginning of his speech that this measure is the first step towards introducing a ban on ethical grounds. I hope that when he winds up he will say whether the Government will stick to the commitment made by his predecessor to introduce an ethical ban in this Parliament. That would enforce the will of the other place which voted unanimously to introduce such a ban, using Section 12 of the Animal Welfare Act. The Minister’s noble friend Lady Parminter asked about Defra’s latest opinion regarding the legal position of such a ban. It would be interesting to hear the answer to that question as well.

I strongly support the principle of a ban. Some worry that bringing forward regulations that last for seven years, with a review after five years, might undermine the notion that there is any momentum behind that principle. However, I was pleased to hear the Minister say that this measure is the first step and if he can reassure us on the timeline, I would be most grateful. Clearly, we need to improve welfare standards. That is the reason why I oppose the use of wild animals in circuses. In so far as it goes there is some merit in these regulations in improving those standards. However, it is worth asking whether it would have been easier, cheaper and clearer to go for an outright ban. Those circuses that use wild animals would hear that message and a timeline set out by government and would phase them out over the intervening couple of years rather than getting used to a new set of regulations which are only temporary anyway, which may be phased out in favour of the ban on which there is all-party agreement.

Reference was made obliquely, which I wish to address head on, as to whether the enforcement mechanism in these regulations is flawed. Clearly, if we are bringing forward regulations that are not going to work and that are only temporary anyway, there is not very much point in proceeding.

I am most grateful to the RSPCA and the Born Free Foundation for forwarding me the joint briefing they have prepared and in which they go into some detail. I have copied relevant sections to the Minister so that he could have time properly to consider the argument they made. I shall summarise it. The main sanction in these regulations is to suspend the licence. If the licence is suspended, something has to happen to the animals that are then being held without a licence. Regulations state that a licence is required for any place where a wild animal associated with such a circus is kept. Therefore keeping them where the circus is is not an option unless, I guess, the circus holds an alternative licence for that location, which is extremely unlikely, given that we are talking about a travelling circus. Moving the animals is possible only if the site where the animals are held during the suspension also holds a licence. Any site that held the animals without a licence would find itself in contravention of the regulations. Given that suspensions come into effect immediately and initial granting of a licence requires prior inspection by a Defra inspector, plus the relevant fees to be paid et cetera, that clearly is not a practical solution either, unless the expectation is that the circus owner would hold an additional licence for their home site to cover this eventuality, if he is allowed to move them to that alternative site under this licensing regime, which seems a bit unlikely, given my reading of the regulations.

The only other possible option—unless the Minister tells me otherwise—is moving animals to another licensed circus during a suspension, again, if the circus is allowed to move them. However, given that we have heard from the Minister that the Secretary of State is required to have 14 days’ notice if a wild animal is introduced to any circus—I guess to add it to the stock list that the Minister referred to in his opening comments—I cannot see how that will work either. There are real questions about whether these regulations are enforceable using the sanction set out. Even if the Minister is unable to do anything else, if he can answer that question I will go away happy that I have achieved something.

There are four other points that I would like to make briefly. The first is about whether the welfare standard is good enough. I have a fundamental problem, which is one I wrestled with in my brief tenure as a Defra Minister five years ago, and I never managed to resolve it. It is that the same animal could be held under different licence regimes if it was unfortunate enough to be moved about into different settings, and each has a different standard of welfare and husbandry attached to it. Let us take the example of a small primate: a marmoset monkey would be a common one. On a Monday, the marmoset might be held in a pet shop under a pet shop licence under a particular standard of welfare and then be sold and held under a dangerous wild animal licence in someone’s home, which is a different set of standards. Then perhaps that does not work out, as keeping primates as pets often does not work out, so on the Wednesday, the animal is sold to a circus. In the circus, it is held under another set of welfare and husbandry standards. Then perhaps the circus owner finds that this marmoset is not such an attraction and is not easily forced into doing the amusing things that punters want to pay for, so on the Thursday, the animal ends up in a zoo and is under another set of welfare standards, which are the highest welfare standards.

There are those who oppose zoos altogether, and we debated that the other day. It does not seem logical or credible that, if we are starting with the principle of animal welfare in how these animals should be kept, there are four different licensing regimes, and that is before I get into the distraction of the Home Office licensing regime if they are to be used for experimentation, because that is a whole different debate that I do not think we want to get into. I would like to see the welfare standards in these regulations at the highest current licence standard, which is the standard that we have for zoos, animal parks and rescue centres. I do not think that they deliver that and there is a real question about whether the welfare standards are good enough.

My second point is around the quality of the licensing inspections and the expertise that will be deployed in Condition 6(2) of the regulations dealing with the inspectors that the circus owners themselves would use. It is notable, for example, that in a famous case in 1997 of Mary Chipperfield Promotions in Hampshire, the farm was an official MAFF quarantine facility. It carried a Dangerous Wild Animals Act licence, it was registered under the performing animals regulation and the co-owner, Roger Crawley, was at the time a government zoo inspector. It had all sorts of regulations, which should have reassured us that this was a quality establishment. Yet the evidence eventually gathered at Mary Chipperfield’s facility, including that acquired by a friend of mine, Alison Cronin, who runs a Monkey World, led to the conviction on various charges of Mary Chipperfield, her elephant keeper and Roger Crawley for cruelty to a sick elephant.

That tells me that even at the highest standard of regulation we have had problems with animal welfare. We know of other examples of premises and circuses that had been inspected where the wool has been pulled over inspectors’ eyes over the training of elephants. Local authorities have some competence in this licensing regime and I am concerned about whether they consistently have the expertise available to them to do any of the licensing.

I note what the Minister said about the regulations being enforced by Defra using vets from the existing list of veterinarians. Obviously, I have every respect for the Royal College, for its self-regulation and the standards of vets. But I would like the Minister's reassurance that vets with a vested interest in circuses are not engaged on that list. We have a fundamental problem around the level of expertise in the veterinary population in dealing with some of these species of wild animals. Not many vets are experienced in dealing with elephants, lions, some of the other wild cats and the primates that may be kept in circuses. If any of those few are making a living out of working for circuses, there is a conflict of interest and I want some reassurance that those conflicted vets would not be engaged on the list.

My penultimate point is about travel time. I note that in Condition 10 of the regulations no maximum travel time has been listed. I recall a debate we had towards the end of the summer before the Recess about the transportation of horses. There was widespread concern across your Lordships' House about travel time for horses. Noble Lords probably share the same concern about travel time for wild animals and yet no maximum limit has been set. Why not?

Finally, there is the issue of new species and the ability in these regulations for circus operators to submit new species to Defra for inclusion in the stock list. Given that these regulations are temporary, I find a facility to include new species odd because it undermines the notion that a ban is coming pretty soon in this Parliament—if the previous promises are to be kept. But if there are good reasons for including new species, we should shift the presumption from Defra having to produce individual standards for those new species to the circus operators themselves having to provide evidence that any animals that they are adding to the stock list will not suffer. That would be more manageable for Defra and we would then have the presumption the right way round.

I am sorry to have spoken a lot longer than anyone else although I guess that that is sometimes my role in this place. Beyond the principle, I am most concerned about the enforcement mechanism. But if the Minister could also give me some answers about the welfare standards, the quality of the inspection, travel time and the arrangements for new species, I would be most grateful.

My Lords, I am most grateful to all noble Lords for their comments and questions. I will do my best to address the points raised.

My noble friend Lady Parminter asked whether the regulations created a two-tier framework for animal welfare, particularly in comparison with zoos. If anything, the status quo signifies a two-tier system. While the Animal Welfare Act 2006 already applies, operators of travelling circuses that have wild animals are, in animal welfare terms, otherwise unregulated. The regulations will address that.

It is right that there are some differences in the detail of welfare standards because we are talking about very different operating environments and different sources of exercise and enrichment, but I do not accept that we are somehow making things worse through these regulations. It is right to introduce targeted welfare standards, inspections and enforcement for travelling circuses, which are exempt from other regimes that would protect the animals.

My noble friend asked specifically about chaining. The new regulations should be thought of as an extension to the Animal Welfare Act and its existing provisions. It is already a criminal offence to cause a circus animal unnecessary suffering or to fail to provide for its welfare needs. If anybody—welfare groups or a member of the public—has evidence of this happening, they should contact the relevant enforcement authority. These regulations will require regular announced but, more importantly, unannounced inspections, as well as routine veterinary visits. They also limit unsupervised wild animal access to a named group of suitably trained or experienced staff and they require circuses to keep detailed records of all aspects of the animal’s day-to-day life. If our inspectors discover any of these alleged cases of abuse or neglect, enforcement action should be taken.

My noble friend asked which welfare organisations were in favour of the regulations. The British Veterinary Zoological Society supports a regulatory approach. She also asked about the issue of the grounds for a ban. The 2007 Radford report on circus animals concluded that there was insufficient scientific evidence to demonstrate that travelling circuses are unable to meet the welfare needs of wild animals presently being used in the United Kingdom. The position of lack of scientific evidence has not changed. There is insufficient evidence that a ban is required for welfare reasons and any such ban would be vulnerable to challenge. That is what we must avoid.

Consequently, we are now looking carefully at the means by which a ban can be introduced on ethical grounds. There are a number of issues to consider in developing the ethical case and the exact nature of a ban. We must not rush primary legislation on such an emotive issue. We need to get it right. The detail must be correct to ensure that it will not fall at the first challenge. Nevertheless, we are determined to pursue this and we are confident that we will get there.

The noble Lord, Lord Kirkhill, suggested that Defra had been procrastinating. The situation has not changed since my noble friend Lord Taylor’s Written Ministerial Statement on 12 July that we expect to be able to publish draft legislation for pre-legislative scrutiny this Session. We are working on a draft Bill. He specifically raised the issue of elephants suffering under licensing. There is a far greater chance of uncovering animal abuse with regular licensing inspections than without. It should be remembered that the trial of the elephant Annie’s former keeper has not yet been resolved, so I cannot comment any further on that particular case and I am sure that noble Lords will understand that.

Generally, in answer to the noble Lord’s point about cruelty, it need hardly be said that training should not involve animal suffering. These standards prescribe that animals must receive immediate and tangible rewards and positive reinforcement when they exhibit desired behaviour during training and performance. They also prohibit seeking a desired behaviour from any animal in any way that would cause pain, suffering, injury or disease.

I thank my noble friend Lord Colwyn for his supportive words. My noble friend Lord Redesdale made some interesting points, which I have taken on board. I can confirm that the definition of “wild animal” is consistent with the Zoo Licensing Act 1981—therefore, budgerigars are not considered to be wild animals. Nevertheless, the Animal Welfare Act 2006 still applies of course.

The noble Lord, Lord Knight, raised a number of issues, some of which I have already addressed in answering other points. Regarding whether the period of seven years would conflict with a ban coming into place sooner than that, the regulations include the standard sunset provision. There is no connection to or conflict with this and the timescale of a ban. Government policy is that all new domestic regulations expire seven years after they are made. That does not prevent the licensing regulations becoming redundant earlier where their provisions are superseded by the proposed ban.

The noble Lord, Lord Knight, kindly raised with me in advance the enforcement provisions and how they would work. If a circus operator chooses not to comply with the law, it will be at risk of a licence suspension and possible revocation. The simple remedy is to comply or to cease using wild animals. It is important to understand what will happen in practice and already happens for other regulations. Ongoing dialogue between inspectors and operators will mean that a suspension could not come as a surprise to the operator. Only if the operator refuses to take action to restore compliance with licensing conditions will the possibility of a suspension arise. If a suspension notice is issued, it will clarify precisely what must be done and by when. Continued failure to comply would lead to revocation of a licence and prosecution. It is not the case that an operator would be prosecuted for taking steps identified in a suspension notice.

Compliance with the licensing conditions could be restored by the removal of all the animals of the affected species from the stock list of the circus. They will then be covered by a combination of the Dangerous Wild Animals Act 1976, the Zoo Licensing Act 1981 and, of course, the Animal Welfare Act 2006. The circus licensing regulations would no longer apply to those animals, and they would have to be removed from the circus.

I should add that neither the Joint Committee on Statutory Instruments nor the Secondary Legislation Scrutiny Committee has had any adverse comments on the enforceability of the regulations.

I hope that the Committee will indulge me in asking a question. If the operator disagrees with the suspension of a licence and wants to appeal under Regulation 14, what will that operator do with his or her animals while waiting for the outcome? Clearly, paragraph (4) would allow the court to permit the operator to continue operating a travelling circus, which is a way out, but if the court were not minded to, my worry is that the animals would then be kept illegally. That is what I do not understand.

I am sure that I will be able to give the noble Lord an answer to that question in a moment.

The noble Lord mentioned conflict of interest. Inspectors have been vetted for conflict of interest; the process already in use for zoos will be followed. He also raised a specific point about primates, which interested me. May I ask him to accept that today we are dealing with these regulations but I am quite happy to talk to him outside about the broader issue of the welfare of animals?

The noble Lord asked about new species. Any new animals introduced will be protected by the rigorous new standards required by the licensing scheme and will be inspected regularly, along with the species that are currently used. However, we cannot use regulations made under the Animal Welfare Act 2006 to prohibit the introduction of new animals outright. Any attempt to use these licensing regulations to prohibit the use of certain species would be highly vulnerable to legal challenge. Our position is that a ban via primary legislation on ethical grounds is the most secure way of achieving the successful ban we want. We cannot prevent the use of new animals until that primary legislation has been enacted.

The noble Lord asked about the period of time that animals may travel for. There must be a stationary period of at least 12 hours in any 24-hour period when the circus moves between venues or layover sites. During transport, animals should be offered water, feed and the opportunity to rest as appropriate to their species, age, health and physiological state. Licensed animals should not be taken from the transport vehicle during transport, except at pre-planned rest stops as defined in the journey plan or under emergency conditions. Every effort must be made to make a journey as comfortable as possible for the animals being transported, including adhering to all traffic laws.

On the noble Lord’s earlier point about enforcement and his supplementary question, suspension can be delayed in taking effect. If the court refuses to suspend the suspension, a fine can result. Enforcement and prosecution will produce compliance. I am not entirely sure that that satisfies the noble Lord, and I will write to him on that specific point. I hope that I have answered the main points raised by noble Lords. If I have not, I will write to them following the debate.

Specific legislation setting down welfare standards for animals with such complex welfare needs, especially in such a constantly changing environment, is long overdue. Similar species in more static environments have been subject to their own specific licensing legislation for at least 30 years. By contrast, wild animals in circuses have not been the specific subject of any legislation since an Act in the 1920s.

The Government have promised to bring forward primary legislation to ban wild animals from travelling circuses. This ban will be on ethical grounds and will, understandably, I hope, take a little time. It would not be right to rush legislation through Parliament that sought to prohibit an activity that has long been legal and for which it has proved hard to find evidence that an animal’s welfare is irredeemably compromised. However, the Government are satisfied that there is a risk that welfare issues need to be addressed. In the interim, the welfare of these animals is, of course, paramount. The Government believe that these regulations will safeguard the welfare of wild animals in travelling circuses while a ban is introduced.

Motion agreed.