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Public Bill Committees

Debated on Tuesday 9 November 2021

Animal Welfare (Kept Animals) Bill (First sitting)

The Committee consisted of the following Members:

Chairs: Geraint Davies, † Esther McVey

† Begum, Apsana (Poplar and Limehouse) (Lab)

† Blake, Olivia (Sheffield, Hallam) (Lab)

† Daly, James (Bury North) (Con)

Doogan, Dave (Angus) (SNP)

† Evans, Dr Luke (Bosworth) (Con)

† Glindon, Mary (North Tyneside) (Lab)

† Grundy, James (Leigh) (Con)

† Hudson, Dr Neil (Penrith and The Border) (Con)

Johnson, Kim (Liverpool, Riverside) (Lab)

† Lake, Ben (Ceredigion) (PC)

† Mackrory, Cherilyn (Truro and Falmouth) (Con)

† Moore, Robbie (Keighley) (Con)

† Prentis, Victoria (Minister of State, Department for Environment, Food and Rural Affairs)

† Saxby, Selaine (North Devon) (Con)

† Stevenson, Jane (Wolverhampton North East) (Con)

† Wheeler, Mrs Heather (South Derbyshire) (Con)

† Zeichner, Daniel (Cambridge) (Lab)

Sarah Thatcher, Abi Samuels, Committee Clerks

† attended the Committee


David Bowles, Head of Public Affairs, Royal Society for the Prevention of Cruelty to Animals

Paula Boyden, Veterinary Director, Dogs Trust

Dr Alison Cronin MBE, Director, Monkey World

Dr Simon Girling, Chair, Zoos Expert Committee

Dr Jo Judge, Chief Executive, British and Irish Association of Zoos and Aquariums

Public Bill Committee

Tuesday 9 November 2021


[Esther McVey in the Chair]

Animal Welfare (Kept Animals) Bill

Before we begin, I have a couple of preliminary announcements. I remind hon. Members that they are expected to wear face coverings and to maintain distancing, as far as possible. This is in line with the current Government guidance and that of the House of Commons Commission. Please give one another and members of staff space when seated and when entering and leaving the room. Hansard colleagues would be grateful if Members emailed their speaking notes to Please switch electronic devices to silent mode. Tea and coffee are not allowed during sittings. Today, we will first consider the programme motion on the amendment paper and then consider a motion to enable the reporting of written evidence for publication and a motion to allow us to debate in private about our questions before the oral evidence session. In view of the timetable available, I hope that we can deal with those matters formally, without debate. Nods all round—thank you very much. The programme motion, standing in the Minister’s name, was discussed yesterday by the Programming Sub-Committee for the Bill.



1. the Committee shall (in addition to its first meeting at 9.25am on Tuesday 9 November) meet—

(a) at 2.00 pm on Tuesday 9 November;

(b) at 9.25 am and 2.00 pm on Tuesday 16 November;

(c) at 11.30 am and 2.00 pm on Thursday 18 November;

2. the Committee shall hear oral evidence in accordance with the following Table:




Tuesday 9 November

Until no later than 10.30 am

Royal Society for the Prevention of Cruelty to Animals; Dogs Trust

Tuesday 9 November

Until no later than 11.25 am

Monkey World; The British and Irish Association of Zoos and Aquariums; Zoos Expert Committee

Tuesday 9 November

Until no later than 3.00 pm

National Farmers’ Union; Compassion in World Farming; The National Police Chiefs Council

Tuesday 9 November

Until no later than 3.30 pm

Canine and Feline Sector Group

Tuesday 9 November

Until no later than 4.00 pm

Battersea Dogs and Cats Home

Tuesday 9 November

Until no later than 4.30 pm

British Veterinary Association

Tuesday 9 November

Until no later than 5.00 pm

Scottish Society for the Prevention of Cruelty to Animals

Tuesday 9 November

Until no later than 5.30 pm

Farmers’ Union of Wales

3. proceedings on consideration of the Bill in Committee shall be taken in the following order: Clause 1; Schedules 1 and 2; Clauses 2 to 5; Schedule 3; Clauses 6 to 19; Schedule 4; Clauses 20 to 47; Schedule 5; Clauses 48 to 53; new Clauses; new Schedules; remaining proceedings on the Bill;

4. the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Thursday 18 November.—(Victoria Prentis.)


That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Victoria Prentis.)

Copies of written evidence that the Committee receives will be made available in the Committee Room and circulated to Members by email.


That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Victoria Prentis.)

The Committee deliberated in private.

Examination of witnesses

David Bowles and Paula Boyden gave evidence.

The meeting in public is now resumed and the proceedings are being broadcast. Before we start hearing from the witnesses, do any Members wish to make a declaration of interests in connection with this Bill?

I am a veterinary surgeon, a fellow of the Royal College of Veterinary Surgeons and a member of the British Equine Veterinary Association.

All done; all declared.

We will now hear oral evidence from David Bowles, head of public affairs at the Royal Society for the Prevention of Cruelty to Animals, and from Paula Boyden, veterinary director of the Dogs Trust. Before calling the first Members to ask questions, I remind all Members that questions should be limited to matters within the scope of the Bill and that we must stick to the timings in the programme motion that the Committee has agreed. For this session, we have until 10.30 am. Could the witnesses introduce themselves for the record?

Paula Boyden: I am Paula Boyden. I am veterinary director of Dogs Trust, the UK’s largest dog welfare organisation.

David Bowles: I am David Bowles, head of public affairs and campaigns at the RSPCA.

Q Hello. I am the Minister taking the Bill through. It is good to have you here. Could you start by giving us your views of the Bill, in general?

David Bowles: In general, we are very happy with the Bill. We are glad that the Government have brought the Bill forward. Obviously, it covers a number of main areas, such as sheep worrying, for example, which has not been reviewed for nearly 80 years. It covers the live export of animals, which is of course a Government manifesto commitment. We are very pleased to see that in there. It covers the licensing of and strengthens the rules on primate keeping, which has not been discussed under legislation for 11 years. The RSPCA is very happy with most of those issues. We believe that there can be improvements, as with any legislation. We are particularly concerned about the primate legislation. We would like to see a ban on keeping primates, rather than licensing, because we do not think that that will sort out the problem with private primate keeping and it will not sort out the animal welfare issues, which are primarily what the Bill is about.

On livestock worrying, we have a couple of tweaks to try to make enforcement better. On a broader point, we are concerned because Parliament, rightly, is passing legislation and looking to local authorities to enforce that legislation, whether that is complicated licensing legislation for primates or fairly simple legislation on transport rules, but the money has been cut. I think at some stage Parliament should be looking at how to enforce legislation, as well as passing more and more laws.

Paula Boyden: I will limit my comments to the areas around livestock worrying and illegal importation. Dogs Trust is broadly supportive of the proposals in the Bill. If we look first at importation, Dogs Trust has been very involved in the issue of puppy smuggling for a number of years. We are very supportive, in broad terms, of the raising of the minimum age of entry to six months. We would really like to see some science behind that. What I mean is a reintroduction of a rabies titre test and a wait period that is in line with the incubation of the disease. We think that is really quite important.

We very much welcome the reduction of the maximum point of gestation—when pregnant mums can be brought into the country. We would support a total ban on the commercial importation of pregnant mums. We see no reason for it to happen at all.

On the mutilation side of things, the provisions are again very welcome. We have seen an increase in dogs with mutilation, specifically docked tails and cropped ears, being imported. We would like to see a tweak to that, to ban not only the importation but the sale of such dogs; however, we would like a tightly worded exemption, so that as a rehoming organisation we could rehome those dogs. We have a similar situation with section 1 dogs, which we cannot rehome even if they are completely rehomeable dogs. That is really quite important.

Going back to puppy smuggling for a moment, we would really like to see a reduction in the maximum number of animals that can be in a vehicle from five to three. Sadly, we have to think of how the illegal importers work and what loopholes they would jump through. There is some science behind reducing it to three. Some work was done 10 years ago that showed that over 97% of dog owners have one, two or three pets. We have just undertaken a big dog survey with more than 240,000 respondents and we had exactly the same response—that over 97% of dog owners have one, two or three dogs—so there is good reason for that.

Like my colleague, I am broadly supportive of the livestock worrying provision, but we need some tweaks, particularly on dogs, and the definition of a dog at large in an enclosure or field. We feel that that needs tightening up to protect the livestock.

Q Thank you so much for coming to give evidence to us. The aim of the Bill is to bring all those who keep primates up to the level that you would expect in a zoo. I noticed, David, that you focused in on the welfare concerns, which are of course the aim of the Bill. Why would you be concerned who is keeping the primate as long as we know that they are being kept to zoo-level standards?

David Bowles: There are two issues here. The first is the welfare issue that you rightly raise. It goes back to the point about local authorities. If we need to get enforcement correct, we need to make the rules as simple as possible for the enforcement agents. This piece of legislation contains amendments to the Zoo Licensing Act 1981. Unlike in the Zoo Licensing Act, under which a trained zoo inspector goes in with the local authority inspector, on primates we just have the local authority inspector, who could be inspecting a Chinese takeaway restaurant in the morning and doing this in the afternoon. That is a problem, because you are dealing with the same animal. A marmoset or tamarin in a zoo is likely to have better enforcement and better auditing than a tamarin or marmoset with a private keeper, so it is about trying to make the rules really clear.

We also have a problem with the licensing because the RSPCA is worried that we will have a cliff edge. We do not know how many primates there are in England, but let us say that there are something like 3,000 to 5,000. The RSPCA has been getting an increasing number of calls on the inappropriate use of primates in captivity. Mostly that is because they are kept singly, they are kept in birdcages, they are not given the right ultraviolet lighting, so their bones disintegrate, or they are not given the right exercise. In other words, their welfare is not catered for in terms of the five welfare needs in the Animal Welfare Act 2006.

Under the Government’s plans there is a two-year period to bring in the licensing, and then a six-year period for the licence to operate. We worry that that is quite a long period for things to get out of control. We also worry that after two years primate keepers who have decided to give it up will suddenly abandon their primates. The RSPCA has proposed a ban on the private use of primates, but with grandfather rights, so you have a soft landing whereby if people have primates they are allowed to keep them until they die. Do not forget that marmosets and tamarins have a lifespan of about 10 to 15 years, so it will be a much softer landing.

The real concerns that we have on this are the enforcement issue and whether it is will improve the welfare of primates. Do not forget that we are 11 years on from the primate code that the Department for Environment, Food and Rural Affairs did in 2010. I think everyone now agrees and admits that that has not worked, because it is too complicated for local authorities, they do not understand what it is, and most of them do not even apply it. I do not want to have the same situation in 10 years’ time, discussing why a licensing regime for primates has not worked.

Q Thank you very much; that is really helpful evidence. Can we move on to puppy smuggling, or dog smuggling generally? I will also ask Paula this question in a minute; we have heard evidence that a certain number of pet owners keep more than three or four animals and, occasionally, travel with them. The most interesting evidence we have had is from Brittany Ferries, which chose a limit of five animals per vehicle. Would you like to tell us more about your sources of evidence, and about your feeling that a reduction to a limit of three would not impact on genuine pet owners?

David Bowles: Sure. You have to go back to what we are trying to do with the improvements to the pet imports, both commercial and non-commercial. We are trying to cut down the illegal trade in puppies. Clearly, under covid we have seen a massive increase in the illegal and quasi-legal trade in puppies coming in, particularly from Romania, in response to the huge spike in demand that happened during covid, when new dog owners wanted exercise, mental health improvements and companionship. Those are all very understandable reasons, but obviously supply in the UK could not keep up with that demand, and we went abroad.

We know that puppy dealers have continued despite England’s third-party ban because it has so many loop- holes. Puppy dealers have continued—indeed, they have increased—the number of puppies that they are bringing in. If you look at 2020, there were some of the highest-ever levels of declared legal commercial imports. That has continued into 2021 despite puppy prices actually stabilising and maybe even going down since January. Something strange is happening: puppies are still coming in and being sold at service stations and lay-bys, and people are still making money. The RSPCA have found that some puppy dealers are earning £2.5 million to £3 million a year. These are not small amounts of money.

In response to your question, I will refer to Paula’s excellent statistics. We do not believe that reducing the limit from five to three would make any measurable difference to legal and responsible owners going either on holiday or to dog shows, or to legal importers bringing dogs in, but it will clamp down on puppy dealers who basically make money on the misery of puppies.

Q You can still go to a dog show—you would be part of the exemption—but someone travelling with a pair of dogs, with a friend who has their pair of dogs, would be caught by the reduction. Have you done an estimate of how many genuine travellers would be affected?

David Bowles: No. Dogs Trust has better statistics.

Paula, would you like to come in on that?

Paula Boyden: We have not done any work on that specific issue, but I can repeat the statistics that we have. A paper published back in 2010 by Murray et al. looked at dog ownership within the UK. It found that more than 96% of dog owners have one, two or three dogs, so you are dealing with a minority. Dogs Trust has just undertaken a big dog survey, for which we surveyed over 240 dog owners. The outcome of that was that 97% of dog owners have one, two or three dogs. The numbers are incredibly low.

As David has mentioned, my concern with the comments that we are getting is whether what the ferry companies are seeing is a true reflection of dog ownership, or is it people bringing puppies in for sale to make a profit? It is not normal activity to go out and buy yourself five puppies. Those are the sorts of things that we are facing.

The other thing we have to bear in mind is just how quickly those illegal importers will change their tactics. During lockdown, we were not travelling, so we saw this enormous shift over to commercial movement. We have to think of the unintended consequences of whatever happens. Reducing the number of animals to three per vehicle is an appropriate way to go, because at the moment, you could just pitch up at the port, pick up a couple of foot passengers and bring in 15 dogs.

Q Yes, that is one of the reasons that we are taking regulation-making powers in the Bill: so that we can adjust our regulatory mechanism to cope with the changing world of puppy smuggling, which, as we have seen, changes very quickly—there is a lot of money at stake.

To move on to livestock worrying for a moment, how do you think we can best encourage dog owners to act responsibly around livestock?

Paula Boyden: Part of that will be legislation, but that is only one part of it. We know that the majority of livestock worrying is actually by dogs who are not with their owners and have escaped from a garden, so there is an element of irresponsible ownership there. Certainly, some of the proposals within the Bill—about tackling those irresponsible owners, depriving them of their dogs and banning them from keeping dogs—are appropriate.

However, that is only one part of it, and the proposals could certainly be tightened up. As someone who has worked for the Dogs Trust, but also as a vet and a dog owner, I see no reason why a dog should be off a lead in an enclosure or field where there are livestock. My feelings would be that the species that are listed at the moment is limited. Why would we limit that list of species?

There are a couple of other elements we need to work on. We need to work with the farming community. For example, signs on gates are fine, but if that sign is up 12 months of the year, then folk become conditioned to it because they know that, at times, there will not be livestock in the field. We also need good, accurate recording and reporting of livestock worrying from the police force perspective, because we do not know the true extent, and if we put these measures into place, how do we know what is good or not?

Part of it will absolutely be around owner education, and I have concerns with some of the current wording in the Bill, such as a dog not being deemed to be “at large” if it is in sight of the owner and the owner has a reasonable idea that they can get the dog back. In sight of the owner could be two fields away. For me, that is not under control. I am not suggesting that every time a dog goes into the country, it should be on a lead, but in an enclosure where there is livestock, then I think it should be taken as read that a dog should be on a lead.

Q Are there differences of opinion within the Dogs Trust on the lead issue?

Paula Boyden: Not within a specific enclosure. Obviously, we have things like common land, and that is a different element; that is where we do have to rely on dog owners to be vigilant and to ensure, as best they can, that there are no livestock there before they let their dog off the lead. However, if I was in a field of sheep, why would I have my dog off the lead? Even with the best-trained dog in the world, can you 100% say that that dog will not go if a lamb runs away?

It must be proportionate. We do not want to be the fun police; we do not want to stop dogs having off-lead exercise because it is really important for their enrichment, but it must be proportionate. Aside from the financial impact, a dog worrying livestock is traumatic for the farmer. No farmer will want to shoot a dog, but that is the sort of resolution that will happen in those sorts of situations. We want to avoid that, both for the farming community and for our dog owners too.

Q It is a pleasure to be on this Committee. I am really looking forward to it. I think is an interesting and important Bill. Thank you both for giving evidence this morning.

Going to the RSPCA first, this is a slightly odd Bill, in the sense that it is a collection of bits and pieces. While being careful to remain within the scope of the Bill, it is perfectly possible to imagine that there are other things that could have been included. Could you reflect on that first? What would your priorities be if you were drawing up this Bill from scratch?

David Bowles: Yes, it is a bit of a potpourri, you are right, but the RSPCA is not against that, so long as we can get improvements to animal welfare. The Government came in with something like nine or 10 animal welfare commitments, and we are delighted that they are moving on those commitments, whether it is the sentience Bill, this Bill, or the Animals Abroad Bill.

The RSPCA are glad to see the issues that are in there, and the main issue for us is ensuring that it is done properly; you only get one chance at this. I have mentioned primates, and I totally agree with Paula on the livestock worrying side of things. We need to make it as easy as possible for enforcement people. Having statements like “at large” is not an easy thing for an enforcement person to go out with and then work out.

The Scottish Government also passed legislation on this only this year. Unfortunately, their Act is not that helpful for us, because it also does not define “at large”. I think that will be a problem for enforcement agents. We should always look to write legislation that will be easy to enforce. Unfortunately, this Parliament—not this particular Parliament, but Parliament in general—has a track record of passing legislation that maybe has not done what it was supposed to do.

Q That is a very fair point. Turning to primates, I think lots of us are slightly puzzled as to who is keeping primates at the moment. It seems we do not really know how many there are. What is the RSPCA’s view? If I wander around my constituency in Cambridge, am I likely to stumble on someone keeping a primate in their house?

David Bowles: It is very likely. Let us say that 3,000 to 5,000 primates are being kept. Some people keep them because they are exotic and very easy to get—all you need to do is go on the internet, google “buy me a tamarin” and hand over between £1,500 and £2,000, and you can get one. They do not come with any instructions. If you wanted to buy a washing machine, the person selling it would tell you, “You need to put it on this cycle”, but tamarins do not come with instructions. Is it any wonder that people do not know that they need UV lighting and a specific diet, or that they are social primates and therefore need company? Putting one in a birdcage on its own will obviously not meet its welfare needs.

A variety of people buy primates. Although some people get them because they know how to keep them, I fear the vast majority do not know how to do that, and therefore we run into welfare problems. Unfortunately, because the RSPCA is only tipped off by the public, we see only the tip of the iceberg—we know only what the public tell us. As I said, we have unfortunately seen an increase in the number of complaints on primates being kept. In many instances, when we look into those people, the primates are not being kept properly and have welfare problems, and sometimes the person will have to be prosecuted for not keeping them according to their welfare needs.

Q I think it was fairly clear on Second Reading that there is a strong feeling across the House that people would like to see this practice banned; the question is how we do it. One question that troubles me is what happens to those animals if we implement a ban in that transition period. What is the RSPCA’s view on how to do that?

David Bowles: Let us be realistic. There is only a finite number of places where we could put primates that have been confiscated—whether it is Wild Futures or Monkey World, who you are hearing evidence from after me—and they are full. We have to try and manage that problem, which is why, as I said to the Minister earlier, we need a soft landing.

The RSPCA is really worried that if there are licence requirements coming in after two years, there will be a cliff edge: people will keep their primates until the end of the two-year period and then abandon them, whether by turning up to an RSPCA centre or letting them loose—who knows. That really worries us, and that is why we have recommended a ban on the use of primates, rather than a licensing system, but with grandfather rights and a soft landing; as those primates die, they are taken out of the system.

Unfortunately, the primate legislation as written means that if you get licensed, you are still allowed to trade and breed those primates, so you are not going to reduce the primate population. If we want to improve the population of primates kept by private owners, we need to reduce it. Unfortunately, the Bill does not do that. I go back to the issue that the person inspecting and licensing is not an expert; they will not know what they are looking at. If you get licensed by the local authority and your licence lasts for six years, you can then breed your primate and make money from it. Those animals can be sold for a couple of thousand pounds, which is not an insubstantial amount of money. That is the worry for us.

Q Moving on to dogs, I want to return to a point that David touched on around enforcement and, I would say, unintended consequences. There are a number of elements in the Bill where I worry the unintended consequences could mean dogs are possibly kept for long periods of time while legal investigations are going on. We have discussed that in other fora before, around the Dangerous Dogs Act 1991. What would the Dogs Trust recommend that we do to tackle that in general across the Bill?

Paula Boyden: I completely agree. It is a huge worry to think that a dog could potentially be held indefinitely while proceedings go forward. There has to be a means of either expediting those investigations—I appreciate that that is easier said than done; we know that there is huge pressure on the judicial service and police forces—or, if it is appropriate, doing what the Scottish Government have just done, which is introduce a means to be able to move case animals on and rehome them. We see that with livestock worrying; as you rightly mentioned, we see it with section 1 dogs as well. We really need to address it so that we do not have dogs languishing in kennels, because that is not welfare-friendly either.

The whole reason the Scottish Government have introduced this measure is because of delays with animal welfare prosecutions. There was a case I am aware of in Scotland where the dog was kept in kennels for four years, because the defendant would not sign the dog over. We are compromising their welfare. The risk is that, with cases potentially going up to Crown court, they could take even longer. We need to look at that and work out how we can manage it so that we are not keeping dogs incarcerated for great lengths of time.

Q I have one final question for David. There is lots in the Bill about dogs. We have had representations from those who speak for cats. In a lot of cases the nasty stuff we are going to clamp down on is about money, and there is a worry that, if it works on dogs, people will then switch to cats, and there is not sufficient strength in the Bill to stop that happening. What is the RSPCA’s view on that?

David Bowles: The “A” in RSPCA is animals. I do not differentiate between dogs and cats—they are as good as each other, and have as many welfare needs as each other. We have to recognise that there are different markets for dogs and cats. The market for dogs tends to be much more breed-specific; cats tend to be moggies. The way they are brought to market is very different. There is no big trade in cats. There is some evidence that there may be a trade that is starting to rise in breed-specific cats, and that could be mimicking what is happening to dogs, but because the market is very different, I do not think that if we crack down on dogs, people will go on to cats to make money. Frankly, it is a different market and there is a completely different system for how people get their cats. It is also a different system in terms of what breeds they are looking for compared with what dog breeds they are looking for.

Q Paula, you talked about clarity on the age of animals being brought in. There are many welcome suggestions in the Bill. Many people have said, and I share the concerns, that we need more clarity and detail in the Bill, on issues such as increasing the age to six months, and you talked about reintroducing the rabies titre test. Also, the Bill talks about mutilations, but does not specify the mutilations; there is a similar point about the number of days pregnant. Currently, importation is illegal in the last 10% of gestation, but it is actually very difficult to ascertain how heavily pregnant an animal is.

Can you give us some evidence to help us in terms of tightening up the Bill through putting in numbers, such as six months of age; reintroducing health checks; the rabies titre test; and specifying mutilations such as cropped ears? The hon. Member for Cambridge talked about declawed cats as well. Can you give us specific asks? For example, how heavily pregnant should it be—is it in the last 30% to 50% of gestation? What can we do to tighten up the Bill to make the provisions clearer to the outside world?

Paula Boyden: You mentioned the minimum age of entry. The proposal is six months. We would really like to see that science, as there is a potential to start looking at older dogs. The reason I say that is because of the disease risk from those dogs, which I appreciate is not part of the scope today. We have 12 years of serology data on the rabies vaccination and the rabies titre test from the 12 years prior to the change in 2012. We know that the animals that are least likely to respond to the rabies vaccination are young dogs—young, naive animals—those under a year of age, I would say, particularly with large breeds. The wait period would bring the time period in line with the incubation of the disease—most cases of rabies will present between three and 12 weeks post infection. That measure starts to give us a good framework, should we want to expand that at a later date.

On pregnancy, David mentioned third-party sales. It is not a bad piece of legislation, but I go back to a previous comment—we need to take a holistic view. This is all about the supply of and demand for dogs. Illegal importation is one side, but the domestic legislation around breeding and sale is also important. We have to tie them together. Since that legislation on third-party sales came in, we have seen a significant increase in pregnant mums coming in. This time of year, we are seeing a surge because they are all coming in for the Christmas market, because it completely circumvents the ban on third-party sales.

As a minimum, we ought to be reducing the gestation period to a maximum of 30% —a maximum of one half to two-thirds pregnant. We had originally said 50% of pregnancy, and the reason for that was that the New Zealand Animal Welfare Act 1999 protects unborn offspring at 50%, but having spoken to colleagues at the Department for Environment, Food and Rural Affairs, I understand that you can use ultrasound and the kidneys appear at about 42 days, so that could be quite a good indicator. The challenge with ageing at the moment is that it is very subjective. You are looking at the body weight, the size, of the puppy, but you are also looking at the eruption of the teeth—the adult teeth—which again is going to be variable. So having something that is a little bit more specific would be great, and if it were reduced to 42 days, it would mean that—well, certainly looking at the figures that we have, over 70% of the pregnant mums that were seized would have been illegally imported, compared with a smaller proportion. It is very, very difficult to say that a bitch is 50 days’ pregnant versus 54 days’ pregnant or whatever. The issue is having that specificity.

The journeys that these mums undertake are horrific—that is the only way I can describe them. They do not have enough room. There is no temperature regulation. Quite often, they are not fed, because if they are not fed, there is very little coming out the other end. They are given very little water. They have no breaks. That is not a way to treat a heavily pregnant animal of whatever species we are talking about. So the aim should be to reduce that and, as I mentioned, to absolutely ban the commercial importation of pregnant mums as well.

Sitting alongside that is the issue of mutilations. We very much support the ban on importing dogs that are mutilated—docked and cropped, and you mentioned cats that have been declawed. The one thing that does not happen at the moment is visual checks on importation. The checks are undertaken by the carriers, which we feel is wrong. That should actually be done by either an independent or a Government agency, so that there is no conflict there. But it should at least involve a visual check. We have demonstrated that on a number of occasions when we have actually imported a toy dog and nobody looked in the crate to see that it was a toy dog. We need that to see what the position is: “Does this actually match up? Does this animal actually need a physical examination?” We are not saying that we need to be hands on with every animal, but having a physical check is really quite critical in this respect.

In terms of mutilations, as I have mentioned, it is really important that we ban not only the importation but the sale of those dogs and cats so that they cannot be passed on, but we would very much welcome a very tight exemption so that, as a rehoming organisation, we could rehome them rather than the dogs being confined to our care for the rest of their lives. That is exactly what we have with section 1 dogs at the moment, because we cannot rehome them.

There is another thing sitting alongside this. We have spoken about the checks at the ports. I have two comments. One is that the risk with raising the minimum age of entry to six months is that we may see a shift from what we have at the moment, which is illegal importation, whereby the puppies are declared and have a passport but the information is wrong, to true smuggling, whereby they are hidden. We need to be mindful of that and look at how we can address it.

The other thing that we need alongside this, aside from the enforcement, is penalties, because the penalties just are not there. We have had approximately 2,000 puppies come into our care since we have been working with Animal and Plant Health Agency colleagues at Dover. Out of those, there have been three prosecutions and not one custodial sentence. If I use the analogy of cigarette smuggling, the maximum sentence there is seven years, whereas the maximum sentence for this is a year. I find it quite strange that if I were caught smuggling cigarettes, the last thing that would happen is that I would be given my cigarettes back, yet that is what has happened to the importers—they can claim their puppies back. One thing that we have seen through lockdown, because of the increased demand and increased prices, is more and more puppies being reclaimed through quarantine, because there is still a profit to be made. That is fundamentally wrong. At the moment, there is no deterrent to trying to circumvent whatever rules we put in place.

Q Thank you; that is really helpful. Finally, do you feel that if we added some specifics to the Bill, that would give clarity in how we legislate? Obviously, the science is evolving, but the Secretary of State potentially then has discretion to add things as the science develops. In terms of putting six months in the Bill, putting in pre-import health checks for things like brucellosis and specifying some of the mutilations, do you think that that would give clarity to the Bill?

Paula Boyden: It would certainly give clarity. I appreciate that there are benefits on either side. If the Bill goes through as it is, you can then bring something in under secondary legislation. Obviously, putting it in the Bill brings it in more quickly, but if secondary legislation allows us to make more changes, I think we have to weigh that up as to what is the most appropriate thing to do.

David Bowles: It is really important that the ban on importation, whether it applies to cropped dogs or puppies under the age of six months, applies to everything, because one lesson that we have learned from the puppy trade is that the dealers will make money out of anything; they will exploit loopholes. While I have total sympathy with people who are importing dogs from abroad that have had their ears cropped, it makes it really difficult for enforcement in the UK, because people then just say, “I’ve imported that dog with cropped ears”, rather than, “I’ve just done it myself last week”.

Q I am very interested in and intrigued by this issue; I have a background in local government, so I understand how difficult it is at the moment to take part in these schemes and things like them. What do you think that Government would need to provide to allow local authorities to be able to enforce the licensing part of keeping primates as pets?

David Bowles: There are three points—and there is no easy answer to this. The RSPCA has been working with the all-party parliamentary group on animal welfare to try to consider how we can improve this situation.

The obvious one is money, but then you get told that all the time. Secondly, there is training. There are a number of very good training courses out there for local authority staff, but there are also some very poor training courses. I worry that a local authority employee would just go on a poor training course and have the certificate for it on their wall, but they will not have the same competence as somebody who has been on a course run by, say, the City of London.

Thirdly, where you are seeing things moving is local authorities, because of the budgetary issue, starting to pool resources. There are some very good examples of where local authorities have joined together. There is a very good one in Wales, but there are also a couple of good ones in England, where local authorities have decided to pool their resources and work together on the enforcement issue. I think that is the way forward.

Q That is certainly true on enforcement for things such as tobacco, interestingly. I know that you have suggested that this measure is pretty unworkable and will not achieve what needs to be achieved, but once somebody has got a licence and they need to go for the veterinary checks, do you think there are enough qualified vets in the UK at the moment to be able to do these checks appropriately, and will people who keep animals under a licence be able to keep up with what they need to keep up with in order to hold that licence?

David Bowles: There are two problems. First, once you have got a licence, you have got a licence for six years. That is a long, long time. If you are talking about the lifespan of a marmoset, that is almost half its lifespan. So that is a very long time. The RSPCA would like to see that licence period reduced to a year.

Secondly, you are right, because this is all about expertise. When you are dealing with animals, it is not just expertise on the enforcement side that is needed; expertise on the vet side is also needed. Obviously, I defer to the very experienced vet at your table. There are very experienced wild animal vets out there, but they are not all over the place. The difficulty is that if you are presented with an animal that you have never been presented with before and you do not have experience of that animal, there could be a problem to work out whether its welfare needs are being met.

Q Would you also be concerned about the transportation of primates around the country in order to find those vets?

David Bowles: I would be concerned, and not only because the present legislation allows the breeding of primates from a licensed keeper and the sale of primates. So, there is a commercial trade element. How will those primates get from one place to another? They have to be transported. When you are dealing with primates that at the moment are not being kept in appropriate conditions—you know, kept in a parrot cage, with no enrichment, in a very small space, on their own—I worry that that person will also not how to transport their primate adequately.

Q Thank you. I have two more questions on the importation of dogs, if that is okay. First, what provision do you need to see at Border Force level in order to implement these changes and ensure adequate checks?

Paula Boyden: At the border, first and foremost we need cover at the right times. We know that there is limited cover at weekends and in the small hours. The importers know that too, and that is quite often when animals are illegally imported, because there are limited checks.

As I mentioned, it is really important that we consider shifting the checks from the carriers to a Government agency. That should involve a visual check. The analogy that I have used many times is that at the moment it is a bit like you or me walking through an airport with a paper bag over our head, because there are no visual checks. That is why we have been able to import toy dogs into the country on a number of occasions without being challenged. We really need to address that. We will need individuals with a level of animal welfare knowledge, so that if there are concerns, they can flag them and arrange for a full physical check.

Alongside that, the physical resources at the ports are limited. For example, if somebody sees a dog that they think is pregnant, where will she be taken to allow her first, to rest, and secondly, to be examined? She cannot be left portside in the middle of June when it is 25°. We need to think about that side of things as well. It is not just Dover; the importers are very clever, and we need to look at other ports around Great Britain as well.

Q That is very helpful. I was interested in what you were saying about mutilation and rehoming in the UK. I should probably declare that I own a dog that has a docked tail, who I rehomed. Are you concerned about people who do not have any evidence that they genuinely rehomed an animal that already had a mutilation? Will they be caught out, not having been in any way involved in the mutilation, because they had rescued that animal? What are your views on that? Clearly, mutilation is awful and horrific, and we heard about declawing cats. What more could be done to raise awareness of why this is so negative? Could the Bill help do that?

Paula Boyden: The Bill, by mentioning mutilation, is highlighting that it is not appropriate. Speaking as a vet as well as for the Dogs Trust, I can think of no medical reason why you would mutilate a dog’s ears. It is the wrong bit of the ear that you would operate on. I understand that in other countries, there are breed standards in which the ears are cropped. I suggest considering a time-limited and very tight exemption for individuals who are caught now—who perhaps already have a dog that is mutilated, and are truly relocating—to allow them to bring their dogs into the country, but that would have to be incredibly tight, because any exemption is a potential loophole. That is something that we could think about. It should be time-limited. If the dog was mutilated before the legislation comes in, obviously within 10 to 12 years that exemption should not be necessary.

I would endorse the point that if these dogs and cats are imported into the country, it would allow us to rehome them responsibly, and give them a much better quality of house. We probably have some of the best kennelling in the world, but it is not the same as being in a home.

David Bowles: I concur with everything that Paula said, but we should not forget that tail docking is permitted in certain circumstances, if the vet believes that that dog will be used for certain activities, whereas dog mutilation has been prohibited for many years. There are different reasons why that is done; as Paula rightly says, there is no reason to mutilate a dog’s ear. It is done purely from vanity, and because some societies believe that some breeds look better like that. It is totally bizarre.

There are different issues there. The RSPCA has been asked by, for example, diplomats in other places who have a dog with a docked tail whether they can bring it back in. Under the legislation, the Secretary of State can allow certain exemptions, and I think that is right. Again, I emphasise that if we have a loophole for rescue organisations, the puppy dealers will jump straight through that door.

Paula Boyden: David mentions that a lot of the imports come from Romania at the moment. The cropping of ears is illegal in all EU member states, so there is no reason why there should be cropped dogs in any EU member state.

David Bowles: Except it is legal in Serbia, and those Romanian dogs are Serbian dogs.

Three Members have caught my eye: Dr Luke Evans, Apsana Begum and James Daly. I am mindful of the time, so if anybody else wants to ask a question, could it be tight, and could questions be—well, as full as they need to be?

Q Following up on Vicky’s point about future-proofing and imports, do you think there is a way we can future-proof against trends such as brachycephalic—short or flat-nosed—pets? One in five pets bought now has this big potential problem because of the trend for short-snouted dogs. In the legislation, we are talking about banning imports and setting standards. Is there a way to do that in legislation, or is it too difficult, practically, to protect and future-proof against trends?

Paula Boyden: That is a really good question. It is quite difficult with brachycephalics. We are always treading a fine line, because we do not want to demonise these breeds. We have been working very hard, as has the RSPCA, on groups such as the Brachycephalic Working Group, with the Kennel Club and breeders to try to improve breed standards, so that we are not breeding for extremes. That is obviously a slow burn; it is not something that will happen overnight. It is quite difficult to predict the next trend. Certainly, when I was growing up, it was Rottweilers and Dobermanns. There is a big surge in hybrid crosses at the moment.

We have to get the message across that health matters over the looks of a dog. Again, it is very easy for us to say that—we have all the information about how one should go about getting a dog—but unfortunately we live in a demand society, where it is, “I want that, and I want it now.” That is part of it. As it is all about supply and demand, part of it is educating those who are looking to get a dog, so that they take their time and get the right dog, rather than getting one virtually at the click of a button. That is one of the challenges.

Q In the current market, what is the drive from imports? We now have the chance to block or ban things in certain ways, to stave off a trend. How much does demand drive imports? If, for example, Italian greyhounds get more popular and become the next trend, how much do you see the outside market respond to that, so that we get those imports? How responsive is it? We seem to have a chance to drop that, if practicable.

Paula Boyden: The importers are very good and adaptable, and we have seen this. We have been running the puppy pilot for six years. You will not be surprised to hear that the majority of dogs that have come through our care have been French bulldogs, bulldogs and pugs; dachshunds are now the leading breed. During lockdown, because so many people were getting dogs, we saw a bit more variety, but they are the key breeds that are coming through, so we will see that adaptability.

Kennel Club registrations of French bulldogs went up exponentially, but only a small proportion of them were registered. If we do a back-of-the-envelope calculation, there were 9 million dogs in the UK at the time, with an average lifespan of 12 years. I am not saying that supply must equal demand, but it will. We therefore need 750,000 dogs a year. The Kennel Club registers about a third of that, so where do the others come from? That goes back to my comment about being holistic. We do not have true traceability. You need a licence to breed a dog only if you breed three or more litters a year, so where people produce fewer than three litters, we do not know who or where they are. That favours illegal importers, because they can easily advertise online.

One of my key points is that we need to step back and take a holistic view of the supply and demand of dogs. The demand is important. The Department for Environment, Food and Rural Affairs is doing its “Petfished” campaign, which is fantastic, but we need to start joining these dots up a little bit more.

David Bowles: Certainly, importation has hugely satisfied the demand for cropped-ear dogs, and that loophole has led to an increase in dogs being cropped in the UK. With brachycephalics, it is really interesting. As you know, back in 2005, a handful of French bulldogs were being bred and registered each year, but now thousands are. Will that trend continue? Probably not. We are possibly seeing the start of a decrease in French bulldogs, but people will go on to something else.

You asked how to future-proof the legislation. At the moment, under the Animal Welfare Act, a breeder could theoretically be prosecuted for breeding a French bulldog that has not had its welfare needs cared for, because it cannot breathe. The difficulty is proving intent and where that started off. That is why there has not been any progress on that.

Q Do you think that the Bill contains a sufficiently robust definition of conservation?

David Bowles: Yes. The RSPCA is glad that, under the Zoo Licensing Act 1981, conservation is in the Bill. The Bill will take that away and put it into the Secretary of State’s standards, but those standards are statutory. That is where we are very pleased that those standards will be statutory.

We have some concerns. There is a lot of power in the Secretary of State’s hands, because the Secretary of State can change those standards, possibly without consultation. We hope that if the Secretary of State is minded to change those standards, they would do a proper consultation and go out to everyone. But we are glad to see the standards becoming statutory.

We have slight concerns about the zoo standards, because different classifications of zoos seem to be being built up here. Obviously, the welfare needs of an animal are the same, whether it is in a big zoo, a small zoo or a medium-sized zoo. It is important that we focus through the lens of welfare, and try to improve the welfare of the animals, not worry about how big the zoo is.

Q On the different description of zoos, do you think something clearer is needed in the Bill?

David Bowles: Yes, there are issues around that. When does a farm that has a couple of exotic primates become a zoo? Again, we will come back to enforcement, but this is an issue. At least with zoo licensing, we have a zoo inspector who is an expert on zoos—but possibly not on the Animal Welfare Act 2006, and that is another area to be looked at, raising their standards of understanding of the Act—and the local authority inspector. It is all about trying to make it as clear as possible for them when a zoo is a zoo, and what the welfare needs of those animals are in that zoo. As I say, making those Secretary of State standards statutory is a good thing. Hopefully, that will give us the flexibility to improve them when our knowledge of the welfare needs of animals in zoos becomes greater.

Q A final question: in Committee, our work will involve looking at the detail of the Bill, and it is said that the success of a Bill is often dependent on the financial commitments backing it up, to ensure that it is implemented and enforced. What is your assessment of the financial commitment required to ensure that the Bill is a success, given the experiences you have had in your organisation with the financial gap between enforcement, implementation, and the measures?

David Bowles: It is a real concern for the RSPCA. You just have to look at the Bill and what additional things it is putting on local authorities primarily, such as primate licensing or the puppy issues. Who is responsible for making sure that puppies are imported and sold properly and, if they are sold on the internet, that that licence requirement meets the legislation? Local authorities. For me, that is pushing a lot of stuff on to local authorities, but there is no extra monetary provision.

Paula Boyden: I completely agree. It is important that we provide the right support for local authorities and, equally, for colleagues at the borders who are undertaking the checks. They need the resources and the right sort of training. Comments were made about local authorities getting together and having a central animal welfare inspectorate to undertake the inspections, so that we have that expertise. In effect, that is what we have in the City of London. They are doing this day in, day out, so they have that level of expertise that we need for this.

Q I have a couple of questions about clauses 26 to 41 in part 2 of the Bill, specifically about dogs attacking or worrying livestock, and about criminal enforcement. I was a solicitor for many years, appearing in the courts. The vast majority of animal welfare proceedings were brought by the RSPCA, not by the police. The Bill talks about the police; it does not talk about private prosecutions or the role of organisations such as the RSPCA in enforcement. Do you foresee any role for the RSPCA or third-party agencies in this process?

David Bowles: You are probably aware that the RSPCA investigates probably about 85% of issues under the Animal Welfare Act. You are probably also aware that under our new strategy, we are in discussions with Government, the Attorney General’s Office and the police about the handing over of prosecutions to the statutory agencies. The primary reason for that is the changes in sentencing, which obviously we fought for and wanted. You will start to see a prison sentence of up to five years. We do not believe that it would be good for a non- governmental, non-statutory agency to be doing something where somebody could end up with up to five years in prison. A lot of the enforcements in this Bill are down to local authorities and down to the police.

The RSPCA will continue to investigate animal welfare issues—for instance, getting the calls on primates that are not being cared for properly. We will continue to enforce those. That is why we wanted a ban—because we want to make life easier not only for local authorities, but for us. I would love for the RSPCA not to have any calls on primates whatever, and for us not to spend the money investigating those cases and then trying to rehabilitate those primates. I do not believe, given how the Bill is written at the moment, that that will happen.

Q I think there is a concern about how these matters are prosecuted. Paula, you touched on the potential for a dog to be kept in kennels for a long time. Clause 27(2), (3) and (4) appears to suggest that if a dog is seized by the police, the owner has seven days to claim the dog back, and if that does not happen, the dog can be given to another owner or potentially destroyed. I do not know whether that is your understanding. Clearly, we want to avoid at all costs healthy dogs being destroyed after seven days. Do you have any thoughts on how we address that part of the Bill?

Paula Boyden: The devil is in the detail on that. One would hope, and what would be great to see there, is that within the seven days there is some sort of behavioural assessment of that dog—of whether it is appropriate to rehome it. It might involve an irresponsible owner who is not prepared to put the time and effort into training the dog, fencing their garden or whatever it takes. I would very much hope that there will be a little bit more detail about what happens within the seven days. I would certainly support the concept that we do not want dogs just languishing in kennels for protracted periods of time, but it has to be proportionate.

Q It is almost certain that somebody arrested for an offence like this would either be released under investigation or granted police bail. Is the position that you would like that until there is a charge, the dog must be kept with the owner, or do you feel that with release under investigation, it could be many months before a charge even comes? What should happen to the dog in those circumstances?

Paula Boyden: Again, it depends on the circumstances. If, for example, it is a repeat offender who clearly has not learned from the first time, I would hope that they would be encouraged to sign the dog over, because they are clearly not going to step up to the mark and do something about it. In that situation, rehoming might be the most appropriate thing for that dog. If it is a first offence, again, it depends on the circumstances. Anybody can make a mistake.

Q I am talking about prior to charge—when somebody is arrested, interviewed and released on bail by the police, so there is no charge. What happens to the dog in those circumstances?

Paula Boyden: In those circumstances, there is the first stage—whether they need to take evidence and those sorts of things—so we assume that that is done. Obviously the person is innocent until proven guilty, so there is the question of whether it is appropriate for the dog to go back to that person, but again it will depend on the circumstances. If, for example, the dog has escaped from the garden, the sensible thing to do is to say, “Okay, we can get the dog back to you, but you’ve got to fence your garden first of all.” Then it depends on their commitment to doing that as to whether they have the dog back or it is deemed appropriate for the dog to be rehomed.

David Bowles: The RSPCA would share some of your concerns about some of these seizure issues. Paula has rightly talked about some of the kennelling issues with the police. I am not sure if you are aware, but the Scottish Government passed legislation this year—it has only been in place for two months—that allows the Scottish Society for the Prevention of Cruelty to Animals to get rid of a seized animal, whether it is a farm animal or a dog, after 21 days, rather than waiting for the court case to take its route. We would like to see something similar happen in England. If the person is found not guilty, then there is a compensation process under the Scottish legislation. That safeguards the welfare of the animal, because they are not languishing in kennels. Do not forget that even before covid, some cases took two or three years to get to court; under covid, 2020 was essentially written off, and we are seeing a huge backlog in court cases.

I worry that we have a lot of dogs, in particular, languishing in kennels, and their welfare needs are not being cared for. Once the court case is finished, it will be up to somebody, perhaps the Dogs Trust or the RSPCA, to try to rehabilitate the dog.

Order. We have come to the end of the allocated time for the Committee to ask questions. I thank our witnesses: David Bowles, the head of public affairs for the Royal Society for the Prevention of Cruelty to Animals; and Paula Bowden, veterinary director for the Dogs Trust.

Examination of Witnesses

Dr Alison Cronin MBE, Dr Simon Girling and Dr Jo Judge gave evidence.

We will now hear oral evidence from Dr Alison Cronin MBE, director of Monkey World; Dr Simon Girling, chair of the Zoos Expert Committee, who will appear virtually; and Dr Jo Judge, chief executive of the British and Irish Association of Zoos and Aquariums. For this session we have until 11.25 am. Could the witnesses please introduce themselves for the record?

Dr Cronin: Good morning. I am Dr Alison Cronin, director of Monkey World, an ape rescue centre in Dorset. I have been rescuing and rehabilitating primates from around the globe for the past 30 years.

Dr Girling: Hello. I am Dr Simon Girling. I am currently the head of veterinary services to the Royal Zoological Society of Scotland and chair of DEFRA’s Zoos Expert Committee. I have been a veterinary specialist in zoo and wildlife medicine for the last 18 years.

Dr Judge: Hello. I am Dr Jo Judge, the chief executive of the British and Irish Association of Zoos and Aquariums, which is the professional association for good zoos and aquariums in the UK and Ireland.

Q Thank you all very much for coming to give evidence; it is great to meet you. I will start with Alison and focus on primates to begin with. I do not know whether you heard the evidence from David from the RSPCA in the previous session, but he took the view that it would be preferable to have a blanket ban on primate ownership. I know that in the past you have thought about that very carefully, and you took the view that a licensing system would be preferable. Do you want to tell us more about your views on that?

Dr Cronin: Yes. Over the years of rescuing and rehoming primates from the British pet trade, we have come across numerous individuals who have reached out to us to rehome the primates that they have kept as specialist keepers. I mean that in the true sense of the word. They are hobbyists who are dedicated to the care and welfare of their animals. They keep them in zoo-style environments with indoor and outdoor enclosures and access to professional veterinary care and social groupings. They feed them appropriate diets, stay up to date with the most current literature, and keep them as a specialist keeper, often contributing to conservation programmes that are zoo based.

I have received numerous calls from people of that type asking me to rehome their primates because they are getting elderly or see their circumstances changing, and want to do the correct thing by their primates. In those circumstances, I have often asked those individuals to keep their primates until the situation occurs where they feel that they can longer look after them, because I have so many that are being kept in bird cages, in solitary confinement and in people’s sitting rooms.

For me, it was a case of being practical and acknowledging that primates can be kept by private individuals to a reasonable standard of welfare if the appropriate guidelines and legislation are set out. The problem in existing legislation is that all marmosets, all species of tamarin, titi monkeys and squirrel monkeys—totalling 66 different species of primate—can be bought and sold over the counter or on social media like budgies or goldfish. No offence to budgies or goldfish, but those are animals with higher sentience, family groupings and greater physical and emotional needs, so greater concern needs to be given.

I am trying to be practical. I am trying to offer what I consider to be reasonable adjustments to current legislation and employing existing legislation, which is the strongest in the country right now that protects captive primates—the Zoo Licensing Act. I have just tried to offer a practical thing. I am not concerned about making a political statement about where the animals are kept; I am simply concerned about how they are kept. To me, the most important aspect is the health and welfare of these animals, not who is keeping them.

Q Thank you; that is very helpful. Do you have views on the proposed transition scheme? The RSPCA talked to us about grandfathering rights. Do you have a view on how we should best move from the current system to the new system?

Dr Cronin: I think giving people the opportunity to make the circumstances correct is probably the right thing—again, I am trying to be practical. Because there is no registration system for said 66 different species of primate that can be kept, we do not know how many are out there right now. Some organisations have tried to put numbers on it, but they range from 1,000 to 5,000. Which is it? Actually, we don’t know. Where will all those animals go? Monkey World has taken in more than 120 primates from the British pet trade, in more than 25 years. I have taken in 15 just over the last two years.

The number of species and individuals is clearly increasing. In order to deal with the situation practically, if there are circumstances in which some of these shorter-lived primates—I am still talking about 12 to 15 years—can have their needs met in a captive situation, should these animals be allowed to live out their lives in what is deemed to be appropriate and reasonable circumstances, rather than just taking a categorical stance? Again, as I am on the frontline picking up the pieces, I am trying to offer a practical solution, when I know I already have over 100 primates on my waiting list.

Q Are you concerned that if there were to be an outright ban, you would have more pieces to pick up?

Dr Cronin: Any form of this legislation will cause an increase in the numbers needing rehoming—that is just a fact. All organisations are agreed that something has to change so that the species with no registration system have some form of protection of their care and what they are provided. Everybody is agreed that something has to be done here, and we will do our best to accommodate and pick up the pieces.

Q You clearly have a wealth of experience in caring for primates. Do you feel we have tapped that experience to inform the new zoo standards? Has your voice been heard?

Dr Cronin: I have just recently—within the last few weeks—been taken on to the zoos expert committee. I have come in at a later stage, but I am impressed with what has been proposed. Perhaps contrary to what was stated earlier, it seems to me that the standards are put across a level playing field, focused on bringing perhaps the smaller zoos that are not ticking all the boxes up to the same standard, regardless of size.

I think I am pleasantly surprised, as a user of the Zoo Licensing Act, to see a bit more focus on conservation and spelling out what that is. I could go through details over and over again. In particular, recently I was very dismayed to see so many of the larger zoos in the country immediately claim, after only a few weeks of closure, that they would potentially have to euthanise animals if they did not receive financial grants from the Government. Our organisation is not a large zoo in comparison to most. I am dedicated to the care and welfare of my animals, whether it is for my lifetime or for one year, and I think that it is essential that zoos operate with a budget that enables them to close for one year. That is an obligation that they should have to the endangered species that they are protecting, and one on which they seem to have fallen short up until now. Details such as that are in the proposed legislation.

Q Thank you; that is very helpful. Jo, how do you feel about the arguments about a blanket ban versus a licensing system?

Dr Judge: We would also support a licensing system. I agree with many of the points that Alison made about primates as pets. We think that you should be banned from keeping primates as pets in a domestic setting, but there are a number of responsible, registered—with BIAZA—keepers who keep their animals to a zoo standard, and their animal welfare is at the highest level. They play an important part in some breeding and conservation programmes. Although we fully agree that you should not be allowed to keep a lemur or marmoset in a birdcage in a living room, and would like to see that banned, we think that a well-resourced and effective licensing system is the way to go to enable the people who keep those animals at high welfare standards and contribute to conservation programmes to keep those animals. As Alison said, a complete ban would drive the trade underground and leave more animals in need of rehoming and more animals likely to be abandoned. We are very much in favour of banning them as pets but allowing a licensing system for responsible keepers.

Q I will move to Simon. Do you feel that the zoo standards have been drafted in consultation with the experts on your committee?

Dr Girling: Yes, I genuinely do believe that that is the case. We currently have 12 members plus myself on the committee. The members cover a wide range of disciplines, from veterinary surgeons who have worked for many years and are recognised as specialists within the community to those who are working in a variety of zoo licensed premises—from larger zoos to smaller ones. We have members from academia, covering various areas of welfare, ethics and education, and we have local authority representation.

In addition, the standards have not been drafted purely by the committee. The committee has involved the zoo community, the British and Irish Association of Zoos and Aquariums. A number of members of BIAZA’s groups have contributed. These are just a few of them: the reptile and amphibian working group, terrestrial invertebrates, the native species research committees, veterinary working groups, elephant welfare groups and great apes welfare groups. We have widely consulted with the industry, from zoos to aquaria, and across a wide range and spectrum of different zoo licensed premises to ensure that the standards genuinely represent both what the industry wishes to drive forward and what we feel is important, which is improving conservation and welfare in zoo licensed premises.

I am very pleased to have new members such as Alison on board to bring their expertise and scrutiny and to bring different perspectives on these new standards, which I genuinely believe will improve welfare and conservation in zoo licensed premises in the UK.

Q Thank you. Do you feel that it is a good move to absorb the conservation standards within the other zoo standards?

Dr Girling: The conservation standards have not so much been absorbed but created within the standards. There was very little reference to conservation in the standards originally. Zoos have given many different examples over the years of contributing to conservation, including simply donating money to organisations that carry out conservation on their behalf or, in some cases, breeding species that are not on any sort of IUCN red list and saying that that is conservation.

We do not believe that, in a modern zoo, that actually represents conservation, so the Bill provides an opportunity for us to more clearly define what conservation is and how zoos can implement that, and to tailor it to ensure that it reflects the size of the zoological collection. We would expect some of the larger zoos not only to collaborate with conservation measures, but actively to lead them. It is an opportunity, which I believe the standards reflect, to significantly increase the definition of what conservation is and to improve it within zoo licensed premises.

Q Great. Finally, are you aware that the consultation will start shortly and are you geared up for joining in with it?

Dr Girling: Absolutely. Hopefully, the consultation will be out before the end of the year. It will be a 12-week process targeted to the industry and other bodies, such as local authorities that have a stake in the zoo world and veterinary organisations involved in it. There will be discussion—quite rightly so—and there will be some areas that people will want more detail on, but I am confident that the standards as they stand represent a significant improvement in clarity, particularly on welfare and conservation.

That will help when we are talking about local authorities potentially being able to implement penalties, because it will give them more teeth to deal with zoos that are genuinely failing. I am confident that the consultation will be out in the next month or so, so that we can get the standards into force. We have to remember that this is the first major change to the standards for nearly 10 years, so a significant amount of change has occurred.

Dr Judge: May I come in on a couple of those points? ZEC has done a fantastic job and has involved different individuals from different BIAZA working groups in its consultation, but BIAZA itself has not been involved in the consultation and has not seen the majority of the standards yet. Those experts have been involved in developing the standards, but at the moment there is no requirement for any consultation when the standards are reviewed. We would like to see some assurance that when standards are reviewed, now and in future, there is wider consultation.

Q For what it is worth, I can give you the assurance that there will certainly be a consultation starting shortly. I believe you have been involved in some of the discussions about that.

Dr Judge: Yes, we have, but it would be great to have a requirement set down somewhere that that will always happen when they are being developed rather than when they go out for wider consultation.

ZEC gives advice to the Government, and that advice is great, but there is no transparency about that at the moment. There is no requirement for it to publish its advice. We would like to see the advice around the standards brought into line with the new animal sentience committee, and it being given the ability to publish its advice, so there would be greater transparency, which would make the standards process more robust.

On moving conservation into the standards, we very much support the highest conservation requirements for zoos and aquariums. We believe that all modern zoos should provide impactful conservation, so we support that, but we would like assurances around consultation, transparency and accountability of the standards as they are reviewed.

Q Thank you for coming to give evidence to us today. I am still slightly confused about the group of people we are dealing with. I think we are all agreed that there is a group—of how many, we are not sure—who are keeping primates in entirely inappropriate conditions, and we want to clamp down on that.

However, I listened very closely to your evidence, and you both said, “a number of”. A number can be anything from one to quite a few. I am not at all clear how many people we are talking about who are, in your words, in a position to keep primates to zoo standards. I would really welcome a stab from both of you at how many people we are actually talking about. That goes back to my question to the RSPCA: who are they? They are clearly not the kind of people we are trying to clamp down on, who are keeping primates in totally inappropriate conditions. How many can do it properly?

Dr Cronin: In our experience over the years, I can only comment on the numbers and proportions I have seen. Specialist keepers who have reached out to us or that I am aware of are probably one in 30. It is a very small fraternity of people—the personal hobbyists, if you will—who are prepared to spend the amount of money, time and effort needed to keep these animals properly. It is not straightforward; you have to invest a lot of time and effort into it and have back-up resources for going on holiday, or anything like that. So the number of specialist keepers is very small.

What has happened in the last decade is that social media has driven the trade in keeping exotic pets—primates in particular—in households to increase someone’s social media standing and the like. It has got out of control, and I think everybody agrees that that is the frontline that needs to be tackled first. Then, perhaps, additional legislation to deal with any outstanding issues surrounding those specialist keepers might be a follow-on. However, I think we all agree that the frontline triage is to stop the over-the-counter trade of primates being sold in birdcages to be kept in sitting rooms in solitary confinement. I do not think anybody has a problem with that being the primary focus.

Dr Judge: It is very difficult to put a number on it. We only have a handful of what we call our accredited associates, who are people who keep primates to that zoo standard in a private setting. There are also a number of sanctuaries that do not have a zoo licence because they do not allow visitors, which is what would tip them over into needing a zoo licence. At the moment, it is unclear how those sanctuaries would be affected by a ban. Presumably, with the licensing procedure, they would be able to carry on.

Those people are genuinely very passionate about their primates. The ones we deal with are very keen to be involved in conservation and breeding programmes; they are also people who will take animals that other people cannot properly house, and so on. They form a vital part of the safekeeping of primates in the UK. We do not know how many there are at the moment, but it is unlikely to be a massive number.

Dr Cronin: May I add one short comment? There is also an issue with pet shops and people taking advantage of loopholes in legislation by keeping primates in the pet shop, but not offering them for sale. Do those animals fall under the pet shop licence, or are they now in need of a dangerous wild animals licence, or the specialist keepers’ licence we are talking about? The whole issue surrounding pet shops needs to be tightened up. Also, as was mentioned earlier, there are all the farm parks that currently fall in between legislation. Are they zoos or not if they have a parrot and a marmoset? It is in those situations that animals are being neglected and falling short of legislation.

Q No, it is fine. I think we are basically agreeing that the number is very small, which means that the other group, those who are not appropriate, is massively larger. The question then becomes: what happens to all those primates in this situation? Again, it is the transition question. What would your view be on that?

Dr Judge: There has to be a reasonable period over which this is going to be implemented. If there are welfare issues, obviously, that should be paramount and there should be rehoming and the ability for that. The difficulty will be the capacity for rehoming. I know that Monkey World, for example, is at capacity—if not possibly over capacity—a lot of the time because of the rehoming that it does. While zoos will assist wherever they can, the actual capacity within zoos is restricted because it is not easy to take a pet monkey and put it into an established social group of primates kept in a zoo situation. Zoos have long-term management plans for all those animals, and they have a carrying capacity. The worst examples need to be rehomed as quickly as possible, but having a system whereby people are checked and then there is a longer period—I think it is two years at the moment—to get those into better premises could be useful. However, it all has to come down to the welfare issue.

Dr Cronin: There is a further twist in the tail there too and it falls back to the ZEC committee and the zoo’s licensing. A lot of the animals have come via captive-bred animals from zoos. When we are talking about breeding primates for so-called conservation purposes—and sometimes it is not actually so—so-called surplus animals are created that are then rehomed at various rescue centres or sanctuaries that may or may not be licensed, or they find themselves into the pet trade. That is where I suppose my worlds are colliding. There needs to be tighter legislation in the ZEC committee, in my opinion, to limit and control the breeding of species that are not conservation priorities and to ensure that those animals—that the zoos are obligated to care for what they breed. That is just a moral principle that we live by at Monkey World: anything that is born at the park I am obligated to care for for its lifetime, unless I can find a home of better quality than we provide already. That is something that needs to be fully embraced throughout the zoos up and down the country.

Dr Judge: In good, modern zoos, sending animals into the pet trade would never happen. It is against our sanctions. However, not all zoos are BIAZA zoos and the ones that do not adhere to those higher standards are the problem. It is those lower levels that we need to bring up to match the other standards. Within good zoos and aquariums, and the whole of BIAZA zoos and aquariums, breeding is very carefully planned and it can be done at a European level for conservation breeding, but they have to know what they are going to do with those animals when they breed them.

Q I think there is evidence of some danger of unintended consequences here in some of this. If I can just move on and include Simon. I am slightly troubled by this spectrum of sanctuaries, small zoos and farm parks, exactly as you have just been saying. Will the measures in the Bill result in a lifting of animal welfare standards in general, taking into account that spectrum that may or may not be covered by the legislation?

Dr Girling: I genuinely believe that they will for a number of different reasons. The standards, as I am sure the Committee knows, have been altered to ensure that grey areas—ideas of best practice, so-called “shoulds” or “coulds”, suggestions that this is the best way to manage an animal—have been pretty much removed wholesale from the standards and replaced with “musts”. Consequently, it has inevitably resulted in an increase in standards throughout this document. I am confident that this new set of standards will improve the welfare of captive animals, including primates, and I certainly welcome the extension of welfare standards for primates from the zoo standards to all primates kept in captivity, just to echo what both Alison and Jo have said. Yes, I believe these standards will result in that and that may well result in some issues for some current zoo-licensed premises. They will have to improve their game or there may be the ultimate sanction of the local authority removing their licence if they do not come up to the new welfare standards.

Q What happens to those animals then?

Dr Girling: It depends on the individual collection. They become the responsibility of the local authority in the first instance, because when the local authority removes the licence, it becomes responsible for the welfare and care of the animals. It then absolutely becomes a potential issue to rehome those animals to other zoological collections. As Alison has already acknowledged, many collections—zoos, sanctuaries and so on—are already at capacity.

We would expect that the standards will take some time to implement once they have been agreed, so there will be a lead-in period in which it would be plainly obvious to collections that the standards are improving. We sincerely hope that this will give everybody time to improve their game and to improve the welfare for their animals should it have fallen short of the new standards. Inevitably, yes, it may well result in animals needing to be rehomed, as Alison indicated.

I am not sure whether I feel more sorry for the animals or the local authorities. I will leave it at that.

We have just under 25 minutes. I will tell the Committee which Members have caught my eye so that we make the best use of time: I have Luke Evans first, then Olivia Blake, James Grundy and Dr Neil Hudson.

Q Thank you, Chair. I declare an interest: with the all-party parliamentary group on zoos and aquariums, I successfully supported the levelling-up fund bid of Twycross zoo, which is in my constituency.

To summarise, I am concerned about the public’s perception around welfare. It sounds natural and very obvious to say, “Let’s ban primates as pets.” What we are hearing from you guys is that, practically, that is very difficult because they are complex animals that may build relationships with a specific keeper. You cannot suddenly move them into another group very easily. Alison, you pulled a face there—that is what I am interested by, because I am coming at it as a lay person. If we choose a licensing system over an outright ban, how can the Government explain that to the public with the understanding and nuance in the message that you have just put forward?

Dr Cronin: I would be perfectly happy to accept a ban, but I am not, as I said before, trying to make a judgment on where the animals are kept—that is not my purpose. I am here to speak for those who do not have a voice: the monkeys and apes. I am concerned about how they are being kept. I am just trying to stay laser-focused, so to me, it does not matter whether they are kept at Monkey World, at Twycross zoo, or in somebody’s back garden.

Depending on who they are or how wealthy they are, somebody’s back garden might have higher standards than either Twycross zoo or Monkey World. I am trying to be practical in saying, “That can happen; that is realistic.” Why should a person be stopped, simply because they are a private individual, from doing a good job, potentially in both conservation and welfare? Should they become incorporated, and then would it be okay for them to keep those animals? I am trying to stay focused on the purpose and intent of what is being proposed, not on the moral principle of whether these animals should be kept in captivity.

On your comments about which animals become attached to people, I suggest to you that if they have become attached to people, they are perhaps not being cared for in an appropriate manner, because they should be living with others of their own kind and living appropriate lifestyles as marmosets, tamarins, squirrel monkeys or capuchin monkeys. We have not encountered primates that we have not been able to rehabilitate. We are known around the globe for taking some of the most difficult species, including great apes, and rehabilitating them into large, natural—well, natural when living in captivity—social groups. It is possible to do; it takes a lot of time, effort and money to do, and you have to be dedicated to that purpose. That is where the rescue work that we do at Monkey World is different from the average—I do not mean that in a derogatory way—zoo or wildlife park: we have a specific focus, and it can be done.

Dr Judge: I agree with Alison that it has to be welfare focused. The argument is that these people are keeping them to a very high standard of welfare, and that is what is important. As Alison says, it does not matter where that is, as long as their welfare is being adequately cared for.

Q We have heard from all three witnesses that this is going to drive up the standard of animal welfare. The danger of adding the conservation bit is that we are potentially a little blurred over what conservation looks like, and what standards are driven there. Could I ask you to comment on what the proposals will look like for conservation? Will it be a percentage of turnover? Is it the number of projects that you run elsewhere in the world? Is it the amount of expertise that you export? I guess that there is the danger that we need to be prescriptive, but being too prescriptive is problematic. [Interruption.]

Human welfare is being looked after as well; that is good to see. Simon, I hope you got that question. The concern is that we need a good definition of conservation, but if it is too prescriptive we create a problem. What is your response to that as the ZEC?

Dr Girling: Thank you very much. It is a thorny issue, and I am confident that the conservation measures that are in the proposed standards that will go out for consultation are significantly increased in content and clarity. At the same time, they are not saying things like, “You need to donate £X to conservation in order to tick a box.” They focus more on the meaningful conservation measures that organisations can carry out. It is about enhancing and encouraging zoological collections—zoo-licensed premises—to engage in the process of research and conservation.

That does not necessarily mean that some of the smaller and less financially robust zoological collections have to release wildcats into England, or something of that nature. It is tailored to ensure that they are encouraged to collaborate, share data and information, and get involved in such things as local wildlife trust research and projects that are on their doorstep, all of which can be meaningful conservation. It is not about breeding animals that do not appear on the International Union for Conservation of Nature red lists, and calling that conservation. It is not about simply giving money to projects and saying, “That’s our conservation,” or “We’ve sold so many gifts at the gift shop, and we’re generating income for conservation.”

It is about being able to demonstrate to the inspectorate when it comes round for the zoo licence that they are actually engaging. Some of it is about outputs and publications. That does not necessarily have to mean peer-reviewed publications, but it is about communicating what they are doing to the wider public, contributing to organisations such as BIAZA, the European Association of Zoos and Aquaria, and wildlife trusts and so on in a meaningful way that demonstrates their engagement in conservation, rather than it just being a tick-box exercise. As you rightly say, that should be without saying, “No, no, no—you have to do this one very specific thing.” Hopefully, this will allow zoological collections—[Interruption.]

Order. Simon, that is a very comprehensive answer. I just do not want anyone to have missed what you said. I did not realise that we were going to have an ongoing commentary about fire and leaving the building. Did everybody hear that answer, or would we like to wait a little while until the noise has stopped and hear Dr Simon again? I feel that we should give you the courtesy of being able to hear your comprehensive answer. We will hold off, and then, if it is fine with everybody, can I add this time on to the end? [Interruption.] I cannot. Okay, I just wanted to check.

Good—silence. Dr Simon, the floor is yours. We were all glued to what you had to say; it sounded comprehensive.

Dr Girling: The standards now have a specific section associated with conservation—[Interruption.]

There you go—you heard that, Simon.

Dr Girling: That is excellent news. There is now a specific section within the standards that deals with conservation. That allows us to put more meat on the bone and to better explain what we mean by conservation: it is not about simply breeding animals that are not endangered and calling that conservation or about simply giving money, x pounds, to conservation. It is about being actively involved—rolling up your sleeves and getting involved with conservation.

Depending on the size of the zoo-licensed premises, that can be anything from reintroducing a species back into the wild, right the way through to actively engaging with universities, colleges and wildlife trusts by sharing data and getting staff involved in local conservation projects. It helps that there is a wide spectrum of activities that would qualify. It also means that it is not just about saying, “Well we exist and we generate income, and that is conservation because we have a zoo-licensed premises.”

I am hopeful that this will enhance conservation measures within zoological collections, make them easier to assess when the zoo inspectorate go out to grant licences and give confidence to the Committee that we are genuinely trying to drive up conservation standards.

Q In the previous answer, which was interrupted, you mentioned getting the message out to the public. The public are more aware of the situation, both with welfare and conservation. Do you foresee a traffic-light system, like we have in health or education with Ofsted, to say that this is adequate or that is good? Is a green, amber and red of conservation and welfare being thought about going forward, so that the public can make a decision about what they are going to see and what is being done? I appreciate that the issue is important for those looking at the standards, but getting that message across to the wider public would also be very interesting.

Dr Girling: Yes, there are certainly many merits to traffic-light systems. I know that Jo and BIAZA have promoted a system similar to that, which will help the wider public understand conservation measures. We do not specifically address a traffic-light system within the conversation standards; we are trying to keep it to a series of “musts”, and then provide guidance on that.

An awful lot of very good conservation is done in zoos in the UK. However, no matter what is done, in a lot of cases we are not good at communicating about it to the wider public. Education is clearly one of the main planks of the zoo licensing system. Getting the message out there is a really important point: what are they doing, how are they doing it and what difference is it making? Is it having a measurable impact?

We have only 10 minutes left and I am hoping to include a further three Members.

Dr Judge: To add to that, Simon is right that BIAZA are looking at setting up an accreditation system, whereby we would not just be looking at animal welfare, but at the conservation, education and research outputs of zoos. There would be some kind of system, whether a traffic-light or Ofsted system, that would be recognisable to the public. They would be able to tell from that system exactly what the zoos and aquariums were doing. Through that there would also be much more education and information coming from BIAZA about what our zoos were doing, and making it so that the public were much more aware.

Q I have some quick-fire questions. I am intrigued, because breeding seems to be quite contentious, given some of the written evidence we have received and evidence we have heard today. I have some very technical questions. How effective are contraceptive methods—the Bill refers to “temporary contraceptive measures”—and how long is average gestation for a primate?

Dr Cronin: That varies; it depends on what species of primate you are talking about. For marmosets and tamarins, it can be anywhere from four months to six months, that kind of touch. The reproduction rate also needs to be considered. Marmosets and tamarins generally give birth to twins. It is sometimes triplets or even quadruplets, but the usual survival rate—in the wild, anyway—will be for twins.

The potential turnover of animals into the pet trade from breeders and dealers is high. As soon as infants are removed from a female who has given birth, she will immediately become receptive to the male and begin the process all over again, so you end up with females that are literally knackered from being used for breeding. It is quite tragic to see.

Q How effective are the contraceptive methods?

Dr Cronin: We vasectomise everybody we get in. That is far less invasive than a castration, or a hysterectomy for a woman. There are permanent methods, but there are also temporary methods that can be used, such as implants. Pretty much the same available forms of human contraception can be achieved in non-human primates.

Probably not 100% then, based on humans?

Dr Cronin: No, we have had birth control accidents at our park using implants, intrauterine contraceptive coils and the pill. That does happen. There are permanent ways, if you were simply a hobbyist who did not want to breed animals yet wanted to keep them in a social setting.

Q One contention is the concern about licensing individuals and the risk. You mentioned that one benefit is for breeding programmes, but others, including the British Veterinary Association, which provided written evidence, seem quite concerned about the risk in allowing that to continue. Do you think there is an issue around that? Finally, do you feel that the length of time for the licence, and how the Bill does not at the moment require an annual check with a vet—

Dr Cronin: Sorry, it is my understanding—perhaps I have misread or misremembered—that there were suggested annual check-ups by the local authority within that six-year framework.

With the local authority, but not with a vet.

Dr Cronin: I thought it was with a vet, or a specialist.

Q So it is not annual. Would you prefer it to be annual? Is six years too long?

Dr Cronin: Being practical, that sounds untenable. The weight unloaded on local authorities has to be balanced. I am not sure that I see all this being dumped on the local authority on an annual basis. I think that every two years is acceptable. I would think that every six years is too long. I think that a fair medium has been struck.

Q Is six years too long for a licence to be granted?

Dr Cronin: For a licence? With interim checks, that probably is acceptable—these are rather long-lived animals —so long as those biannual checks occur and circumstances have not changed. Part of the evidence we supplied is that there should be an amendment to the Bill that if amendments to a licence are requested, such as an increase in numbers or species kept or a change or deviation, that would immediately obligate another local authority check before the licence was amended.

Previous witnesses this morning suggested that putting the burden of inspection on local authorities might create too great a burden. The example used was that perhaps a chap looking at the tandoori place in the morning would be inspecting this in the afternoon.

Dr Cronin: Correct.

Q However, I think you suggested that the new legislation would narrow the field of legitimate keepers to the point where there would be a very small number nationwide—perhaps 100 to 150. Which view do you subscribe to: will local authorities face too great a burden, or will the number be so small that it is a manageable burden? I realise that those things are not mutually exclusive.

Dr Cronin: Potentially, at the outset, it will be rather large. If all the individuals who currently keep primates in what I would call a bird cage or a parrot cage in their house step forward to register their animals, I suspect that what would happen would not be a whole lot different from what currently happens. We will see the effect of people not continuing to buy the animals as the legislation has duration, with the trade being limited and the grandfather clause.

The people who keep animals in bird cages in their sitting room may not be aware of the new legislation. Will they then step forward to announce, “I’ve got a marmoset in a bird cage in my sitting room” to the local authority? I suspect that will not happen. In the end, they will only be turned over by the friends and neighbours who report them. Then it will be up to the local authority, and that is sort of where we are right now.

I am sort of wondering whether the changes in law will actually have a dramatic effect on the animals being taken in or local authorities being overstretched. It is impossible to say how it will play out—you would need a crystal ball. However, I suspect that it will not be a radical change from where we are. My immediate hope is that the trade in selling these animals for commercial exploitation will stop; over time, I hope that all this will wind down, so that all we have left are primates being kept in reasonable conditions in facilities that are up to zoo standards throughout the country. That would be the goal and target for me.

Q That is incredibly helpful, thank you. As a follow-up, I wonder whether you could both reiterate whether you feel that private keepers, when properly regulated, can provide the same standard of welfare as a small zoo. I think you have been pretty clear on that, but I would like to reiterate that point.

Dr Judge: Yes, absolutely.

Dr Cronin: Yes, absolutely. I have witnessed it. It is rare that I turn down people’s request to rehome their primates if I am able to take them in. However, in some circumstances I have seen private individuals who keep their animals in extremely good conditions; that is why they have approached us—because either their circumstances are going to change or they are getting elderly, and before their health deteriorates they want to ensure the health and welfare of the monkeys they keep.

The individuals are so dedicated to those animals that, at that point, I have to say, “Look, we have to do frontline triage with marmosets in bird cages. Perhaps you should keep them. When the time comes, I assure you personally that I will look after your monkeys.” Inevitably, those dedicated keepers want their animals sorted and they want it right now. I have seen good, dedicated keepers.

Q So it is your view that the problem we are facing is people basically keeping monkeys in bird cages—not the good private keepers who maintain a high standard of welfare?

Dr Cronin: Correct, but those specialist keepers are very few and far between. My take-home thought for everybody here today is about the head of the snake: the unscrupulous breeders and dealers who do know how to keep the animals correctly and are capable of breeding them at a high rate, but who are simply churning them out in order to maximise their profits. That needs to stop now.

There is also a huge human toll that is not often discussed. Well-meaning members of the British public are being taken advantage of. A lot of the animals we rescue at Monkey World come to us from people who did not realise. Ignorance is no excuse but, at the same time, it is currently legal to buy a monkey over the internet or from a local pet shop. They are told it is just fine to take it home individually in a bird cage—

Order. We have come to the end of the time allocated for the Committee to ask questions and, indeed, for this morning’s sittings. I thank our witnesses on behalf of the Committee: a big thank you to Dr Alison Cronin MBE, director of Monkey World; to Dr Simon Girling, chair of the Zoos Expert Committee; and to Dr Jo Judge, chief executive of the British and Irish Association of Zoos and Aquariums. The Committee will meet again at two o’clock this afternoon in the Boothroyd room to continue taking oral evidence.

The Chair adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Two o’clock.

Judicial Review and Courts Bill (Fifth sitting)

The Committee consisted of the following Members:

Chairs: Sir Mark Hendrick, † Andrew Rosindell

† Barker, Paula (Liverpool, Wavertree) (Lab)

† Cartlidge, James (Parliamentary Under-Secretary of State for Justice)

† Crawley, Angela (Lanark and Hamilton East) (SNP)

† Cunningham, Alex (Stockton North) (Lab)

† Daby, Janet (Lewisham East) (Lab)

† Fletcher, Nick (Don Valley) (Con)

† Hayes, Sir John (South Holland and The Deepings) (Con)

† Higginbotham, Antony (Burnley) (Con)

† Hunt, Tom (Ipswich) (Con)

† Johnson, Dr Caroline (Sleaford and North Hykeham) (Con)

† Longhi, Marco (Dudley North) (Con)

† McLaughlin, Anne (Glasgow North East) (SNP)

† Mann, Scott (Lord Commissioner of Her Majesty's Treasury)

† Marson, Julie (Hertford and Stortford) (Con)

† Moore, Damien (Southport) (Con)

† Slaughter, Andy (Hammersmith) (Lab)

† Twist, Liz (Blaydon) (Lab)

Huw Yardley, Seb Newman, Committee Clerks

† attended the Committee

Public Bill Committee

Tuesday 9 November 2021


[Andrew Rosindell in the Chair]

Judicial Review and Courts Bill

Welcome to this morning’s sitting. I ask that everyone continue to respect the advice and rules on covid restrictions, and remind Members to submit their notes to Hansard and to turn off any devices or put them on silent.

Clause 2

Exclusion of review of Upper Tribunal’s permission-to-appeal decisions

Amendment proposed (4 November): 43, in clause 2, page 3, line 19, at end insert—

“(1A) Notwithstanding subsection (1), subsections (2) and (3) shall not apply where the party refused permission (or leave) to appeal by the Upper Tribunal was the appellant before the First-tier Tribunal and—

(a) that party was without legal representation and the appeal before the First-tier Tribunal was not within legal aid scope;

(b) that party was not of full age or capacity;

(c) the appeal before the First-tier Tribunal was not an in-country appeal;

(d) the appeal before the First-tier Tribunal was subject to any accelerated procedure;

(e) the decision of the First-tier Tribunal was subject to any statutory restriction or direction concerning how that tribunal was to evaluate the credibility of the appellant or the evidence before it; or

(f) the application to the Upper Tribunal raises a point of law concerning the construction of any statutory provision for interpretation of an international agreement.”—(Andy Slaughter.)

This amendment is contingent on the interpretative provisions in Amendment 44. This amendment would provide a further list of exceptions to the ousting of the High Court’s jurisdiction that is proposed by Clause 2.

I remind the Committee that with this we are discussing the following:

Amendment 42, in clause 2, page 3, leave out lines 34 to 37 and insert—

“(c) that decision or the decision against which the Upper Tribunal has refused permission (or leave) to appeal is vitiated by any—

(i) bad faith, or

(ii) fundamental breach of the principles of natural justice.”

This amendment would expand the current exception in Clause 2 to ensure it applies to any bad faith or fundamental breach of natural justice.

Amendment 44, in clause 2, page 4, line 8, at end insert—

“‘accelerated procedure’ means any procedure for which procedure rules permit or require that less time is provided than is the case for another party before the tribunal bringing an appeal under the same statutory right of appeal; and includes an accelerated detained appeal under section 106A(1) of the Nationality, Immigration and Asylum Act 2002;

an appeal is ‘not an in-country appeal’ if the appellant is only permitted to bring or continue the appeal from outside the United Kingdom;

a party is ‘not of full age or capacity’ if that party is—

(a) a child, or

(b) requires the assistance of a third party to understand the procedure or decision of, or issues before, the First-tier Tribunal and communicate effectively with that tribunal (whether or not that assistance is provided save to the extent to which the person requires an interpreter and one is provided)

an appeal is ‘not within legal scope’ if representation before the First-tier Tribunal does not fall within civil legal services under section 9 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012;

‘interpreter’ means a person whose sole function in proceedings before the tribunal is to translate between the English language and another language spoken by the appellant;

‘legally represented’ means having legal services as defined by section 8 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which services must be provided by a person who is not prohibited from providing them by any statute, court order or decision of any relevant professional standards body;

‘relevant professional standards body’ means a designated professional body as defined by section 86 of the Immigration and Asylum Act 1999 or such other body in England and Wales as may be designated by the Lord Chancellor, in Scotland as may be designated by the Scottish Ministers or in Northern Ireland as may be designated by the Department of Justice in Northern Ireland;

‘an international agreement’ includes the 1951 UN Convention relating to the Status of Refugees.”

This amendment is contingent on Amendment 43. This amendment would provide interpretative provisions for Amendment 43.

It is a great pleasure to serve under your chairmanship, Mr Rosindell. I wish everyone a good morning and look forward to another thorough day’s examination of this important Bill.

Amendments 43 and 44 seek to reduce the scope of the ouster clause by introducing numerous exemptions. Clause 2 is carefully constructed and consistent, and identifies the kinds of errors the court could make and deals with each separately. The upper tribunal will not be reviewable on errors of law but will be where it has made a true jurisdictional error or where there is evidence of bad faith or a fundamental breach of the principles of natural justice. That is so we can deal with the inefficiency in the current system while providing adequate safeguards.

The exemptions outlined in the amendment would completely undermine the Government’s objective of tackling those inefficiencies, as a large number of cases would continue to proceed to the High Court on grounds of error of law without any good reason. I understand that some of the circumstances outlined in the amendment are particularly difficult for the claimant. However, we must trust the upper tribunal to take appropriate and proper decisions on all permission-to-appeal applications. Where there are particular sensitivities, we can be confident that the upper tribunal will have considered those in reaching its decision.

The very low percentage of Cart judicial reviews that actually result in a successful outcome for the claimant—as we have discussed, the figure is about 3.4%—illustrates precisely that point. There is no good reason to treat the sorts of cases that come before the upper tribunal—the majority of which are immigration cases—differently from any other sort of dispute that comes before our courts and tribunals by granting them a third bite at the permission-to-appeal cherry, as we have famously described it, which is what the Cart JR system currently does. The amendments would undermine the consistency of the treatment of appeal decisions by the upper tribunal, making it the final court in some cases but not others, simply because of certain factors relating to the claimant rather than to the nature of the error concerned. Our approach is consistent and justified, and properly empowers the upper tribunal to get on with its important business.

Amendment 42 aims to widen the exception to the ouster clause, which relates to bad faith and fundamental breach of natural justice. It proposes including decisions made by the first-tier tribunal as well as the decision of the upper tribunal. I consider the amendment unnecessary. I am sure hon. Members will agree that judges of the upper tribunal are entirely capable of identifying the sort of blatant and serious errors that constitute bad faith or a fundamental breach of natural justice.

The upper tribunal can be trusted to uphold the rule of law, and the drafting in the Bill sets out with sufficient clarity the exceptional conditions in which the upper tribunal should be subject to judicial review—namely, where it has breached the fundamental principles of natural justice or acted in bad faith. In any case, one would imagine that the upper tribunal knowingly upholding bad faith on the part of the first-tier tribunal would act in breach of the fundamental principles of natural justice. Therefore, including a further provision in the Bill outlining a situation that, in my view, is extremely unlikely to occur, is unnecessary. I urge the hon. Member for Hammersmith to withdraw the amendment.

It is a pleasure to see you in the Chair again, Mr Rosindell, for another sitting to consider this important Bill. I will respond briefly.

The Minister correctly said that the aim of the amendments is to reduce the scope of the ouster clause. That is exactly right, because we do not believe there are adequate safeguards. Without giving away the plot, we will come shortly to the clause stand part debate and our preferred option is to leave the clause out altogether. The amendments are our attempt to say that if the ouster clause were appropriate in the new circumstances, which we do not concede, it should not have such limited exemptions.

The Minister said that the amendment would defeat the Government’s purpose by increasing the number of cases that would still be subject to judicial review. It is my submission that that is not the right way to look at it. It is the justice of the case and the consequences for claimants that we should be looking at. To repeat what I said last Thursday, those consequences are often matters of life and death and severe. In addition, the use of judicial review in Cart cases is already heavily constrained. We have focused on the relatively small amount of money that Cart judicial reviews cost—relative in terms of overall judicial budgets—this would be a part of that sum.

The Government should not dismiss this issue. At the very least, they should think about the extent of the ouster clause. That is the purpose of this debate and I do not believe they have thought sufficiently about it. We are, however, coming to the clause stand part debate, in which members of the Committee will be able to express ourselves rather more clearly and fully. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Under our current system, if a case is brought unsuccessfully to any chamber of the first-tier tribunal, it is possible to apply to the first tier for permission to appeal to the upper tribunal. If that permission application is refused, an application can be made to the upper tribunal for permission to have the case heard in the upper tribunal. If that fails, an application can be made to the High Court to judicially review the decision by the upper tribunal to refuse permission to appeal. This was the state of affairs brought about by the Cart judgment.

Since the Cart judgment, there have been on average 750 such cases a year. We do not believe that was the intention when the Supreme Court decided Cart. Therefore, clause 2 seeks to remove Cart judicial reviews, by way of a narrow and carefully worded ouster clause.

The Government want to remove Cart reviews because we firmly believe that the situation is a disproportionate use of resources in our justice system. Users of the tribunal system not only have the chance to seek administrative review—for example, if challenging a Home Office decision—but can appeal that decision to the first-tier tribunal and, upon losing that appeal, have both the first-tier and upper tribunals consider whether it is necessary to appeal that decision. To then be able to judicially review a refusal by the upper tribunal is an unnecessary burden on the system. That is not enjoyed in most other areas of law. We are yet to hear from the Labour party why it thinks that immigration cases should have such an exceptional additional right.

Our view is shared by some in the Supreme Court. Lord Hope of Craighead, who was one of the judges in the original Cart JR ruling, has stated that

“experience has shown that our decision has not worked”.—[Official Report, House of Lords, 22 March 2021; Vol. 811, c. 710.]

He agreed that it is time to end this type of review because of its inefficiencies.

The independent review of administrative law, from which the proposal of this clause comes, concluded that Cart reviews were effective for claimants only 0.22% of the time. That figure was the subject of much criticism, with several critics questioning the independent review’s analysis. Officials have worked with academics, judges, practitioners and non-governmental organisations to come to a more definite figure, and concluded that the claimant success rate for judicial reviews in this area is around 3.4%. It is a higher figure, but still incredibly low. Lord Brown’s words in the Cart judgment are relevant. He said that

“the rule of law is weakened, not strengthened, if a disproportionate part of the courts’ resources is devoted to finding a very occasional grain of wheat on a threshing floor full of chaff.”

We can consider that rate against the claimant success rate for general judicial reviews, for which the independent review found that the general consensus is that it ranges from 30% to 50%. Colleagues will recall Professor Feldman suggesting in evidence that the figure is around 50%. Either way, it is well over 10 times more than the figure for Cart JRs.

Does the Minister think it is a little strange that while Opposition Members argue for those immigration cases to maintain having three bites at the cherry, they do not make the same argument for other cases with potentially higher success rate?

I am grateful to my hon. Friend, who speaks with great expertise, for making that incredibly important point. Given her medical professional background, she is aware of the importance of the law in good public administration and why the proportionate use of resource is incredibly important. She is absolutely right: we and our constituents have still not heard an explanation as to why, uniquely, immigration cases should have this special right. I am bound to point out that the longer an immigration case is in our courts, the claimant could argue that they have a stronger case to be given a permanent right to remain on human rights grounds.

Given that the Opposition have spent so much time opposing all the steps the Government have taken to fit capacity into the system, does the Minister agree that there is a certain irony that they had planned to hold an Opposition day debate yesterday on how to sort out the court backlog?

My hon. Friend may have had sight of the speech I had prepared to wind up yesterday’s debate. In fact, I was ready to take part at 10 pm, when rumour had it that the Opposition might still go ahead with the debate. He is absolutely right. We have a serious backlog issue. We have been very open about that. The primary driver of the surge in cases was the fact that courts were closed during the pandemic, and social distancing measures have made it much harder to dispose of cases, particularly in the Crown court. In those circumstances, 180 days of a High Court judge’s time is a precious resource indeed, which is why we take the view that exceptions should not be made in these cases. That is not depriving potential migrants of rights because they would still have, to coin that old phrase, two bites at the cherry.

If that is the case, and if the Minister is so concerned about the court backlog, does that mean that he will not support the Nationality and Borders Bill, which attempts to criminalise asylum seekers simply for coming to this country because they could not find safe and legal routes, at an estimated cost of an extra £400,000 per year, clogging up the court system even further?

It is a fair point, but the hon. Lady and my colleagues may be interested to know another statistic that we have discovered: the average time that these cases take from coming to court to reaching a conclusion is 88 days. That means that hundreds of cases are taking three months to be heard in the High Court. On that basis, we would not bring in new measures to toughen up sentencing on, for example, serious sexual offenders. If we did that, more people would potentially end up being found guilty of those crimes and going to prison for longer, which costs. That is precisely why we are taking measures to free up capacity. For example, in a later part of the Bill we will be remitting more cases from the Crown court to the magistrates court, because it is in the Crown court that those serious crimes will be heard.

I thank the Minister for that second bite. I know he was not deliberately conflating serious sexual offenders with asylum seekers, but I really want to make that distinction. We are talking about people fleeing for their lives from terrible situations, and in the same sentence he compares them to serious sexual offenders. Does he agree that there is no conflation there?

Of course. That is not the point I was making. To be absolutely clear, the point I was making is that we still have to deal with serious acts of violence and crime, whatever the crime may take place. If we do that, our actions may put more pressure on the courts, but I think our constituents would support that. Moreover, if someone comes to the tribunal system seeking immigration to this country, they will have two bites at the cherry—to use that phrase again—which is a consistent position.

The hon. Lady shakes her head. [Interruption.] She wants a third bite of the cherry. Well, I am going to ration them a bit, because there are oral questions soon. An inordinate amount of judicial resource is being used to review decisions of broadly equivalent judges who, importantly, are correct in refusing permission to appeal in the overwhelming majority of cases. However, if we take this away in immigration cases, there are still two bites at the cherry, which is consistent with article 13 of the European convention on human rights.

I have just served on the Nationality and Borders Bill Committee. I did not get a break between that and this Committee—in fact, last week the two clashed—so I know that what the Minister says is not the case. If asylum seekers arrive here by irregular means—in other words, if they come by boat because they cannot find safe and legal routes—they will not have an opportunity to apply for asylum, because they face offshoring and prosecutions. They will end up in the criminal court system before they even have an opportunity to go through the system that the Minister is discussing.

Let us be clear and differentiate here. If someone seeks to enter this country illegally, the rule of law and the law of the land apply. We have to deal with them through the courts, as is absolutely right. We think that judicial review is, in effect, an exceptional privilege used in immigration and asylum cases. Some 95% of these are immigration cases, and there are some other types of cases using Cart JR. We think that this is excessive. What we do not think is excessive to use the courts to use the rule of law and all the things that apply in a democracy to ensure that we have effective border controls which, after all, our constituents support. That means that we have the rule of law both at home and for people trying to emigrate to this country, either legally or illegally. The latter is something where our constituents feel particularly strongly that we must be strong in sending a signal that this country is not a light touch for people seeking to enter illegally, even if eventually their asylum claim is found to be legitimate. For those cases, we are generous, and we have shown that in what we have done in the Afghan settlement scheme.

Turning to the method by which are trying to ensure that there is a more proportionate use of resources, the Government understand that there are concerns about the use of these clauses, but we believe that clause 2 as drafted is clear in its intent. Indeed, the independent review of administrative law acknowledged that the use of an ouster clause to deal with a specific issue could be justified. Its nuanced approach emphasised that if there was sufficient justification, and the ouster clause was not too broad or general in scope, it would not undermine the rule of law.

As drafted, clause 2 addresses the previous concerns of the courts in six ways. First, as shown by proposed new section 11A(4)(a), the ouster clause applies only where there is a valid application for permission to appeal from the first-tier tribunal. This is not an extensive ousting of the upper tribunal—it removes only a specific route of review. Secondly, turning to new section 11A(4)(b), the ouster clause does not apply where there is true jurisdictional error. If it were the case that an invalid application was made or there was an application on a criminal law matter, and the court decided to adjudicate it, that would be outside its jurisdiction and open to judicial review. If the upper tribunal was not properly constituted—for instance, if a disqualified judge presided over a hearing—such a hearing would be outside the jurisdiction of the court. The ouster applies where the upper tribunal is functioning as normal, with proper composition of the panel.

Thirdly, two additional exceptions have been added to the clause, to further improve the “safety valve” aspect of the ouster clause. Once again, the Government are not trying to completely oust the upper tribunal’s jurisdiction; rather, they are concerned with ousting the ability to review errors of fact and law made by the upper tribunal. This does not include instances where the upper tribunal has acted in bad faith, or where there has been a fundamental breach of the principles of natural justice, such as if the court decided to hear only one side of the case. These issues concern an abuse of the powers of the tribunal, and we do not see merit in ousting such abuses from judicial review.

Fourthly, the clause is limited only to courts. The wording of proposed new section 11A(2) is explicit that the measure involves removing the jurisdiction of courts from other courts—not executive bodies. The impression given by some of the commentary on the Bill since its publication has been that the clause is being used to remove executive power in general from the court’s oversight, but that is not the case. It is stopping one court reviewing another court of broadly equal standing.

Fifthly, as a notable point and in defence of the integrity of the Union, the ouster clause does not apply to challenges of decisions from the first-tier tribunal for which jurisdiction was or could have been granted by an Act of the Scottish Parliament or of the Northern Ireland Assembly. The clause is clear and explicit. The Government hope that the effect of drafting the above exceptions, and explicitly stating what is and is not covered by the ouster clause, will be to demonstrate that it is possible to develop such a clause that will be upheld by the courts and that it may well improve practice in future circumstances where such clauses are considered. This is a well-considered ouster clause that is designed to meet a clear policy objective and includes appropriate safety valves to prevent injustice. I hope that the Committee will support clause 2.

It is a pleasure to serve under your chairmanship, Mr Rosindell. It is certainly the first time; I would have remembered otherwise. I will talk about clause 2 in a general sense. As I mentioned to my hon. Friend the Minister in my intervention, for which I was very grateful, there is a certain irony here. We have spent so much time debating the measures that the Government have proposed to free up capacity in the court system, but they are being opposed by the Labour party, which then has the cheek to hold an Opposition day debate on Monday purely about the court backlog.

The refugees who are arriving here illegally are potential refugees. Many will not be; many will be economic migrants who are fleeing from France, a safe European country. The 2011 Supreme Court decision that led to Cart JR in relation to these cases was a retrograde step, and in some respects has given judicial review a bad name. Judicial review is an important part of the justice system, but the influence of Cart JR has been negative and has given judicial review, which is very important for our justice system and our democracy, a bad name.

There is a debate about whether the success rate for Cart JR cases is 0.6%, 3% or 5%. A success rate of 5% is still extremely low, compared with 40% or 50% for other types of judicial review. We must bear that in mind. We hear that there are 750 such cases a year, at a cost of £400,000. I raised the issue of the financial cost last week, and this was belittled by a witness, who said that the cost was

“the same amount that DCMS spent on its art collection in 2019-20.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 52, Q75.]

Of course, that is not the key point. The key point is the wider pressure on the court system and on the time of our High Court judges. It is very clear that the pressure that Cart JR puts on the system makes it more difficult for our court system to get back on its feet after the impact of the pandemic. I am pleased with the practical steps that are being taken in other areas of the Bill to help with that.

This issue of the first, second and third bites of the cherry is interesting. I have not heard any practical reasons why immigration cases should be treated so differently from other cases by having a third bite of the cherry. We hear that, if there is one successful case, and even if only 2% or 3% of cases are successful, that is enough to justify Cart JR. If that is the only argument, why do we not have a fourth bite of the cherry, or a fifth? Can we say with certainty that, if we put the 97% of cases that are unsuccessful in the High Court to the Supreme Court, there will not be one or two that are successful? If one or two were successful, would that justify endless bites of the cherry? At some point, a balance must be struck. There is a limited amount of resources and significant pressure on the system. It is not unreasonable for the elected Government to make a determination about what is and is not reasonable. Even if the success rate is 5%, allowing endless bites of the cherry is not reasonable. It is not a justifiable pressure on the wider system.

Last Thursday, we also heard from the shadow Minister about many instances in which an individual had been successful in a Cart JR case in the High Court. Of course, such cases would have contributed to the 3% or 5%, but we would be here for about a week if we were to hear about each individual case that formed the 95%, or the 97%. Let us be absolutely clear: many of those individuals would be having a pernicious influence and a negative impact on our country—they would be illegal immigrants—and, frankly, the sooner we can get them out of the country, the better.

The hon. Member is talking about the sooner we can get rid of these people out of the country. One of the people I spoke about on Second Reading was a Venezuelan man who fled after state actors murdered a friend of his. He knew that he was in danger because he had witnessed that. The first-tier tribunal and the upper tribunal did not interpret his evidence correctly, according to the subsequent judge, after the Venezuelan man successfully got a judicial review. He is surely one of those people whom the hon. Member is talking about—the sooner that we can get rid of these people—because he would lose the right to have his appeal judicially reviewed, if the Member gets his way.

The sad reality is that in any justice system in the world, every now and then, there will sadly be a case that is not—but can we say with complete confidence that every case heard in the High Court has the right outcome? Perhaps, as I was saying, that is having a fourth or fifth bite at the cherry. We also need to reflect on the fact that the vast majority of these cases are not a good use of our judges’ time. They are not worthy of a further bite at the cherry. What is the practical argument for why they should be treated differently from anyone else in the justice system, who has two bites at the cherry? There is no argument for it.

I will draw my comments to a conclusion. Broadly, I welcome the Government’s moves in clause 2. The vast majority of my constituents would support what is happening. They believe in a fair justice system, in which we have a right to appeal—which we have here; that is not being changed—but they are realistic about the wider pressures on the court and justice systems. They see the Labour party doing everything it can to oppose reasonable and justified means to free up capacity in the courts system, while coming up with no practical arguments for how it would do so or that would be better than what the Government have suggested. That is unreasonable. Also, it is wrong to say that everyone who is going to go down this Cart JR route is not abusing the system and our good generosity as a country, because many are.

I am inspired to speak to this part in our consideration, partly by the Minister’s eloquent explanation of why the amendments are undesirable, partly by the wise words of my hon. Friend the Member for Ipswich on how the traditional system is in a way being besmirched by the gaming of it, in particular in immigration cases, and partly because of the delight of serving under your chairmanship, Mr Rosindell, which I have not done often, but am particularly pleased to do, under the watchful gaze of one of my political heroes, Joe Chamberlain, who began life as a radical and ended it as a member of a Tory Government, understanding, as you and I do, that liberalism is the triumph of frenzied licence over dutiful obligation. It is because of obligation and, in the spirit of Chamberlain, our patriotic respect for our constitution that we must resist the amendments.

To hear some critics of the Bill, one might think that the Cart was embedded in the settlement between Parliament and the courts, and yet it is a modern thing. As you know, Mr Rosindell, it is the product of a decision by the Supreme Court as recently as 2011, when it declared that the High Court could judicially review decisions of the upper tribunal to refuse permission to appeal from the first-tier tribunal, whereas previously it was held that it could not.

At the heart of our consideration of the Bill is a fundamental difference about the character of our belief in the character of judicial review, but also a difference in our understanding of the separation of powers. We saw that in our evidence sessions. We had evidence from academics, notably Professor Ekins who, by the way, authored the report by Policy Exchange—which I commend for its excellent work on this subject. He was very clear that some of the recent decisions by the Supreme Court and other parts of the court system have challenged the supremacy of Parliament.

We also heard from Aidan O’Neill, who said he was a constitutional lawyer, and I understand he is—quite a notable one, from what I read. He said that this was about mutual respect, but mutuality is not the basis of our constitutional settlement. The roles of Parliament and the courts are distinct—the separation of powers; the clue is in the name. Of course there is a relationship between them, because this place makes laws and the courts oversee laws, but judge-made law is not consistent with our constitutional settlement and some of the perverse decisions of the courts in recent years have led, in the words of Professor Ekins, to parliamentary sovereignty being openly questioned. He said:

“Parliamentary sovereignty was openly questioned and the rule of law was set in apparent tension with parliamentary sovereignty, which is deeply wrong, I think”.—[Official Report, Judicial Review and Courts Public Bill Committee,2 November 2021; c15, Q9.]

The defence of the rule of law is not a valid one, as the Attorney General made clear in her speech on these matters very recently.

The issue before us in respect of these amendments is clear. The judgment that was made in 2011 opened a new avenue of judicial review and those Cart judicial review cases have mushroomed since. This is particularly true for immigration cases, as my hon. Friend the Member for Ipswich said a few moments ago—not exclusively so, as the Minister pointed out, but largely. This has to be changed. Given that a previous Labour Government tried to tighten the requirements for judicial review, it is surprising that the current Opposition do not understand that this is a return to a stable and steady position—a normal position—that enshrines judicial review as an important part of the way in which citizens can acquire justice, but does not allow it to become what it has become, a means for people to perpetuate political debates that they have lost earlier. This is using the courts to—I never thought we would be speaking so much about fruit during the course of our deliberations, but to use the word that has been used several times before—have many bites of the cherry. We ought perhaps to think about another fruit, just for the sake of variety, but I suppose cherries will do for the sake of argument.

As I pointed out when we last met, the Opposition were going to have a debate yesterday on the court backlog. The amendments seem to me to have the effect of doing the very opposite and do not address the issue of the court backlog. We know that a very small number of cases that are brought under Cart judicial review—something like 3%—are successful, and yet there were around 750 per year between 2026 and 2019. We have many cases being brought on a wing and a prayer, with neither the wing flying nor the prayer being answered in terms of the result of the case. There is a pressing need, just on those practical terms, to reform judicial review in this respect.

I say to the Minister—not provocatively, but I hope helpfully—that I think the Bill can go much further. I think it is a very modest reform of judicial review. I refer him again to Professor Ekins’s work. There is a good argument for changing the rules of evidence, for example, which would tighten the system considerably. There is a good case for dealing with the effects of the Adams case, the Miller case and the privacy case, which he will know had profound effects on judicial review and on the balance between Parliament and the courts.

I wonder whether the Government might, in the course of our deliberations, think about the further changes that could be made, using this opportunity, and bring forward some radical and exciting amendments during our consideration. As you know, Mr Rosindell, with your long experience and great wisdom, Bills are very unlike the Acts that they become. All Bills start in one form and metamorphosise during their passage through the rigorous scrutiny that they receive in this place, and sometimes the good arguments put by Opposition parties. I do not in any sense say that Bills are not improved by that scrutiny, but they are also improved by the diligence of Back-Bench Members from the governing party, whom I know Ministers listen to with appropriate care and interest.

Therefore I simply say that these amendments are unhelpful in terms of the Opposition’s stated intent of clearing the court backlog, unhelpful in failing to grasp the pressing problem of the constitutional imbalance that is emerging as a result of judicial activism, and unhelpful in terms of retaining the integrity of judicial review. And I say this, because I know that the hon. Member for Hammersmith is an experienced Member of the House and I appreciate that he has gone about his work with diligence—I see part of my duty as to bring light to his darkness. I am surprised that the hon. Gentleman has moved and spoken to these amendments, because I am sure that he will want to have a prevailing system that not only works, but is worthy of respect. In those terms, and not wishing to delay the Committee unduly, I strongly support the Minister’s position in resisting the amendments before us and strongly support, too, the proposals before the House to reverse the peculiar decision made in 2011, which is not unlike some other peculiar decisions that have emanated from the Supreme Court.

I am also inspired to speak in this debate. I think that I would be doing my constituents an injustice if I were not to say something on this really important issue. I give credit to the hon. Member for Glasgow North East, who tried to give more of a human approach, through the experience of the person who went through the court proceedings to do with Venezuela. I appreciate her attempt to do that, although it was not very well received by Government Members.

I just want to share a few things. I do not come from a legal background, but I do come from a social care background, and I have worked with refugees and asylum seekers in the past. People may or may not be aware of some of the really abusive situations that they face when they are travelling from their country of origin and try to find passage over here. Some of the stories that I am aware of involving young people and children, although the clause is not necessarily about children, are absolutely horrific. People are raped, abused and threatened at gunpoint to be silent. It is very disturbing to hear of those cases. When there is not enough evidence, or evidence is not being received properly, during the first court hearing and the second, but it is found, during the third hearing, that actually there is a clearer understanding and a clarity that then would go on to save somebody from suffering a level of persecution if they were returned to their country of origin, I think that is worth while.

I do not want to take up too much time, but I will briefly talk about just one case that I happened to work on when I was working as a social worker. It involved a person who was seeking political asylum at the time. He went through the process three times and eventually received status in this country. But on one occasion, his parent was very ill and on the brink of death, so he decided to go back to his country of origin. I am not going to name names or countries, because of confidentiality, but he went back to that country to try to see his mother. Then his wife frantically came to me to say, “He hasn’t returned home on his flight. He’s been missing for two days. Can you help?” At the time, I did not know what to do to help, but I contacted the embassy, and the embassy contacted the country, and found out this person’s identity and that he had been put in prison. It was almost as if the keys had been thrown away because they realised who he was. After the contact that I was able to make with the Government, they were able to put him on a flight back, because somebody showed some care in his situation.

My point is that we are talking about human beings and human lives. We are talking about saving people from persecution and death if they return to certain countries of origin. I am talking specifically about asylum seekers and people who need refuge in our country.

We are debating the merits of clause 2 as a whole. We will not support clause stand part for two reasons. First, we believe that it insulates serious cases from judicial review, and not a small number of those. Secondly, it opens the door to wider use of ouster, which should be resisted, or at least examined closely.

As I listened carefully to the Minister and Government Back Benchers, I identified essentially two arguments. One is that in supporting Cart judicial review there is some element of special pleading—the fruit-based analogy, if we can put it that way. The second is that the clause would in some way address the court backlog. I said a bit about that, but let me deal with it briefly. I am not entirely sure how a relatively small amendment, in terms of cost and the number of cases, to the way judicial review works will assist with the Crown court backlog of 60,000 cases. The idea that the solution is to get rid of Cart judicial review rather than having sufficient Crown Prosecution Service prosecutors, defence counsel and recorders or, indeed, a sufficient number of courts is a fantasy. Can we not set that aside?

I do not want to prolong the hon. Gentleman’s peroration except to say that a third argument has been made, which relates to the integrity of judicial review per se. When only 3% of Cart cases are successful—20-odd cases out of 750—the very integrity of the system is undermined. Notwithstanding the backlog, surely he accepts that it is important that we reform something that is clearly going badly wrong.

I do not accept that as a separate point. I understand that that has been the thrust of the right hon. Gentleman’s argument in Committee, but it is a criticism of his own Government rather than my approach. In my view, the Bill does not go far enough and does not approach judicial review in sufficiently robust or constitutional terms; rather, it is taking what we have described as a tit-for-tat approach. However, we are where we are with the Bill. That is a matter that he must take up with his own side. I will talk about the 5%, but I do not want to say any more about the backlog. It is an incredibly important issue, and I look forward to the debate on that resuming, but frankly it is irrelevant to our proceedings, and it is a stretch to introduce it.

On the matter of cherries, this has been characterised as simply an immigration matter. Most Cart judicial reviews are of immigration cases; that is important in terms of the consequences, but it is not solely about those cases. If one listened to what Government Back Benchers say, one would think it was solely about that, but as has been said several times, Cart was not an immigration case. This form of judicial review applies to upper tribunal cases, regardless of whether they are immigration cases. That needs to be on the record.

I was looking yesterday at written evidence from Justice on the cherry point—other Members may have seen it as well. It is brief so I will read it, because Justice puts in better than I could, and I think we probably need to take this head on. Justice says:

“Cart JRs are not about having a ‘third bite at the cherry.’ There is also an important wider public interest at stake. Cart JRs prevent the UT from becoming insulated from review, by ensuring that there is a means by which errors of law, which could have very significant and ongoing impacts across the tribunal system, can be identified and corrected. As Lord Philips said, Cart JRs ‘guard against the risk that errors of law of real significance slip through the system’. UT judges are specialists in their field, however as Lady Hale recognised ‘no-one is infallible’. Cart JRs mitigate against the risk of erroneous or outmoded constructions being perpetuated within the tribunals system, with the UT continuing to follow erroneous precedent that itself, or a higher court has set.

The Cart JR cases that succeed will involve either (i) an important point of principle or practice, which would not otherwise be considered; or (ii) some other compelling reason, such as a wholesale collapse of fair procedure. These are the second-tier appeals conditions that were set as a threshold by the Supreme Court in Cart, and are now in the Civil Procedure Rules, for a Cart JR to be considered. The Supreme Court sought to address the most significant injustices while making efficient use of judicial resources. It was in fact the Supreme Court’s intention that few Cart JRs would be successful, but those that were would be the most egregious and important cases with serious errors of law.

Due to the second-tier appeals conditions, Cart JRs involve only the most serious errors of law. If a Cart JR is successful, it will mean that the applicant had not been given a lawful ‘proper first bite of the cherry’ in appealing a decision to the FTT, and the UT had unlawfully refused permission to appeal the unlawfulness. Cart JRs also do not in any way determine the claimant’s substantive case, or whether the claimant should be allowed permission to appeal—this is for the UT to decide following a successful Cart JR.

It is also wrong and, as described by Lady Hale in Cart, a ‘constitutional solecism’ that since Parliament designated the UT as a ‘superior court of record’ Parliament excluded any possibility of judicial review. The decision in Cart did not involve the interpretation of any statutory provision that could be described as an ouster clause, and statutorily designating a body as a superior court of record, as Laws L.J. pointed out at first instance, ‘says nothing on its face about judicial review’.”

That is all I want to say about cherries this morning, but I think we have been led into the orchard erroneously on that point.

The Minister quoted one or two Supreme Court members. I could quote a number in aid of my submissions, but I will limit myself to three different types of advocate who would not always support Cart cases specifically. One, whom I think I mentioned on Second Reading, is Lord Neuberger, a former President of the Supreme Court. He said only a couple of weeks ago that it is “always worth remembering” that judicial review

“is what ensures that the executive arm of government keeps to the law and that individual rights are protected. Ouster clauses, for example, which are intended to ensure a particular class of decision cannot be judicially reviewed, carry with them the inevitable implication that whoever has the protection of the ouster clause has the right to break the law with impunity.”

One of our witnesses was Professor Feldman, who gave a balanced account of his view of the Bill. He said during our evidence session on this matter that

“I think it is important to note that parliamentary sovereignty and the rule of law generally require that people should have access to courts to determine the lawfulness of action. There is a functional inconsistency between Parliament’s saying that there are limits to the powers of a body or person and, on the other hand, saying that that person or body can decide for themselves, effectively, what those limits are. That is quite apart from the importance of access to courts for the rule of law.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 25, Q24.]

Finally, I promised Members a further quote from the right hon. Member for Haltemprice and Howden (Mr Davis). I refer them to his article, written just before Second Reading, I think, in which he said:

“Essentially, this is the government legislating to deny a court jurisdiction in a certain matter. Left unchecked, the use of these ouster clauses could give the government free rein to designate certain decisions that it has made, or the use of certain powers it hands itself, to be unchallengeable in the courts…As a Conservative party, we are rightly proud of our heritage that champions individual liberty alongside a fair and balanced rule of law—judicial review is fundamental to these twin ideological pillars. It would be wrong for this government to sacrifice these virtues on the altar of power”.

I am sure that Government Members will reflect very seriously on those words.

Going back to the point that the right hon. Member for South Holland and The Deepings raised a few moments ago, our first difficulty with the proposals on Cart in clause 2 is that we say the success rate is a significant number. I am not going to rehearse the long argument I made on Thursday about percentages, but the Government perceive the success rate percentage to be 3.4%; some of our experts thought that figure was about 5%; and looking at the overall success rate—that is, how decisions are determined throughout the Cart process—a good case could be made for a figure more like 7% or 7.5%. However, whatever the figure is, those are significant numbers. They may not be a majority of cases, but they are a significant number of cases. It has also been said that the reason why the figure is 5% or thereabouts, which is lower than other branches of judicial review, may be that that judicial review is more often review of decisions by public authorities, including the Government, which for a variety of reasons are perhaps more prone to error than the upper tribunal. However, that does not mean that the upper tribunal cannot also make errors that are egregious and need correction.

The procedure in Cart is both an accelerated and a constrained procedure. There are tight limitations on both timescales and process, and in the way that matters are dealt with on paper rather than orally, so the courts have taken all those matters into consideration. It is not as though the Government are discovering that, for the first time, they have come across some terrible area of judicial profligacy.

The hon. Gentleman is making an argument about the importance of being able to review almost any decision. He said he accepts that judicial review in normal circumstances is looking at Government administrative decisions, and that is what it was set up for, yet in this particular case—the Cart case—it is reviewing a judicial decision. Will the hon. Gentleman therefore clarify whether it is his position and that of the Opposition that all judicial decisions made at this level should be subject to review, and that this third bite of the cherry, as the Minister has said, should not be open only to those undertaking immigration cases? As his hon. Friend the Member for Lewisham East said, those are serious and important cases, but other cases going through the courts also have serious and profound consequences for those taking part in them. Should everybody be able to review a decision that has been made at High Court level?

The answer is that it is horses for courses, or Carts for carts. The hon. Lady says that this is just about immigration cases. Let me say first that it is important to correct decisions that have significant consequences for individuals or society more generally. However, the reason I gave a number of case summaries was to show not just that there are a number, but that they are quite compelling cases.

A little chill ran down my spine when I heard Government Members talking about gaming the system and getting out of the country. I wonder whether they would use those analogies in relation to other types of case. We have an extremely low success rate in prosecution and conviction for rape, but I do not think that the vast majority of those cases that do not result in a conviction would be described as gaming, in the way that apparently 97% of these cases are described.

It is not a comparison. It is asking the Government to say why they think it is gaming if a case that has been prosecuted through the courts or taken to the administrative people is unsuccessful.

I am sorry if my question was not clear, but I have not really had an answer to it. Do the Opposition believe that all judicial decisions made at upper tribunal or superior court of record level should be subject to review in the way that the Cart JR provides specifically for immigration cases?

We have explored at some length the effect of Cart as it operates at the moment, but I have not heard from the Government how they think those cases should be addressed, other than saying, “Well, every system has its losers and we will just have to live with the consequences of that,” either because of the financial cost or for some other reason.

Again, I am sorry if I am not explaining my question clearly, but does the hon. Gentleman believe that all people who take a case to court, perhaps with profound consequences on their lives, should have that third bite of the cherry? Is he arguing for all decisions to have judicial review, or does he believe that cases in the Cart—that is to say immigration cases—should specifically get an extra third bite that others do not get?

I am not going to go back to third bites of the cherry again. I know there is an idea that somehow there is an unfairness or a special privilege or pleading that exists in these cases, but that is not the way the law has developed here. The Government need better arguments on how the type of cases that Cart deals with should be dealt with, as my hon. Friend the Member for Lewisham East said. If the answer in Cart cases is that we want to get people out of the country, that can result in torture, death, and people and their families being put in extremis, as we saw clearly in the case summaries I gave,. That is what I am not hearing.

I am repeating myself, Mr Rosindell, so I will not go on further and I will draw my remarks to a close. Something caught my eye the other night when I was looking at the Government’s response to the consultation they undertook when they were dissatisfied with Lord Faulks’s report. The responses to that consultation were also overwhelmingly against them, and they commented:

“Respondents argued that, at most, there are a handful of court decisions that were arguably incorrect and that, therefore, there isn’t a wider problem to address. This reasoning is predicated on the view that a problem is not a problem unless it happens often. The Government is not persuaded by that argument, since even a single case can have wide ramifications.”

That is their argument and, in some ways, it parallels what the right hon. Member for South Holland and The Deepings said previously about the need to look in more detail at types of judicial review to see if they are meritorious or not. The Government say that

“even a single case can have wide ramifications.”

If that applies to judicial review more widely, why does it not also apply in Cart cases?

Until the Government can sufficiently address how they will deal with successful cases in Cart, why they think this particular area of law needs the attention it gets in this Bill and why the development of judicial review here cannot be left to the senior judiciary, as it is in almost every other case, we will not support the clause and we will vote against the clause stand part.

I am told it will be a great pleasure to serve under your chairmanship, Mr Rosindell. I am sure it will be.

As I often say in this place, we never know who is watching. We probably do not have a huge audience watching this debate, and I understand it is going out in audio only at the moment, unless that has been fixed. However, some people will be listening or watching, so it is worth repeating exactly what is happening here so that lay people understand. I will briefly go over it.

If an individual feels that a public body—for example, their local NHS, the Department for Work and Pensions or the Home Office—has failed to correctly apply the law in making a decision about their case, they can appeal to the first-tier tribunal. If that finds against them and the individual believes that there is an error of law, perhaps by overlooking vital evidence or by misinterpreting the rules, they can apply to the first-tier tribunal for permission to appeal at the upper tribunal. If the upper tribunal refuses to appeal the decision, right now that person can ask to have the decision judicially reviewed.

All sorts of criteria have to be met. Someone does not simply say, “Can I have a judicial review?” and get it, but right now they can at least apply. What we are discussing today—clause 2—would take that right away from them. There has been talk about how many bites of the cherry someone can have, but only the tribunal system is having the independent oversight of judicial review removed. All other judicial reviews will continue, and the Minister said that in his speech. I am not sure that is something to be proud of, because we know that the tribunal system often deals with the least powerful in our society. That is who we are removing the access and the right to justice from.

As the Law Society of Scotland has pointed out, decisions on appeal at the tribunal are often taken by a single judge based on the paperwork alone, so the person bringing the appeal has no opportunity to make their case in person, nor to answer any questions that the judge might have. In the last week, we have heard all sorts of arguments about how the powerful—in other words, MPs—have to have more opportunities to plead their case. In terms of the Committee on Standards, a huge number of Conservative MPs talked about how the case was decided on the paperwork, which it was not—that is not quite true—but a lot of the evidence was considered in writing alone, which is somehow wrong when it comes to powerful MPs, but right when it comes to people in vulnerable positions. The opportunity to judicially review the decision of the upper tribunal is a vital last line of defence in cases in which the most fundamental of human rights are engaged.

The Immigration Law Practitioners Association collated 57 real-life case studies of people who had accessed the right that they will no longer have once this legislation is passed. The case studies included a child who applied to remain in the UK in order to receive life-saving treatment, the asylum claim of a victim of human trafficking and female genital mutilation, and many other deportation and asylum decisions whereby, if deported—we have talked about the man who witnessed a murder in Venezuela—their lives would be at risk or they would be separated from their family. If we go ahead with this measure, that is what would happen, and I do not know how anybody here in Committee can justify that.

It is important to explain for anybody not au fait with the legal system that we have different layers of decision making because sometimes decision makers get it wrong. I will give a couple of examples. I sat on the Committee that considered the Nationality and Borders Bill, so I was not here for the first sitting of this Committee. I was astonished to read that a member of this Committee asked why any judge’s decision should be questioned. A fundamental part of our justice system is that we accept that decision makers, including judges, get it wrong and have to be questioned.

The justification given by the Government for ousting Cart and Eba in Scotland is the high volume of applications versus the real number of successful outcomes. Let us look at that. The evidence to support that position was so flawed that the Office for Statistics Regulation launched an investigation. It found that the real success rate was at least 15 times higher than the Government’s figures. Why did they use those figures in the first place? Was it because they knew that if people understood just how many people it does affect, they might have less sympathy with their position?

The Government seem to class an appeal as successful only if it does three things: overturns the decision of the upper tribunal, gives permission to appeal, and the appeal is won further up the chain. They completely miss the point that Cart reviews serve to correct errors of law, even if the appeal is ultimately unsuccessful. If a court misinterprets the legislation or fails to consider the evidence, it is important that lessons are learned from that.

The hon. Member for Hammersmith has quoted Lord Justice Phillips, and I think the matter was well summed up by Zoe Gardner of the Joint Council for the Welfare of Immigrants, who said:

“Allowing any actor free reign to exercise a power without the possibility of scrutiny is alien to the democratic principles under which we are governed.”

By definition, a successful Cart JR involves a clarification of an important point of law to ensure fair procedure. That has been a much-debated term in this last week; we have talked about natural justice over and over again, which is something Opposition Members were asked to consider in the call to reform the standards regime.

The Leader of the House said there was

“a very strong feeling on both sides of the House that there is a need for an appeals process”—[Official Report, 4 November 2021; Vol. 702, c. 1054.]

and that he would work with other parties to make improvements to the system. It is funny how important the appeals process becomes when it is about us. Well, we do not need to make improvements to the Cart JR process as it stands; we just need to preserve it.

The Government also insisted, as we have heard, that this measure will save valuable judicial resources and money, but again, their own assessment says it will save only about £400,000 per year. Even that figure is unfairly inflated, because it considers the cost of the upper tribunal rehearing the case, which will occur because an unlawful upper tribunal permission decision has been identified by other courts. To include those costs in the impact assessment is to include savings that result from allowing unlawful decisions to stand. That position is just not acceptable.

A number of amendments have made it quite clear that the key issue is not the financial cost but the wider significant pressure that is put on limited, finite judicial resources. Will the hon. Member address that point?

I certainly will. If we are talking about saving £400,000, here is my suggestion for another way to do it: do not criminalise legitimate asylum seekers simply because we did not supply safe and legal routes, and they were so desperate that they arrived in this country by boat. Some £400,000 per year is what it will cost to criminalise them, according to the Refugee Council of England. Just do not do that and we will not have to worry about that cost saving.

It is therefore the hon. Lady’s position that the Government should give legal passage to those people who are arriving on boats from France—perhaps put on ferries for them? Does she recognise that that could lead to increased trafficking of people and increased suffering?

No. I still think that is an absolute nonsense. If we are going to have a debate about the Nationality and Borders Bill and the wickedness of pushing back not boats, but people—human beings are on those boats—I am happy to do so, but I do not imagine the hon. Lady will be happy with that. I am happy to have a conversation about that afterwards.

Is it not the case that, because there are no safe and legal routes available, the Government have made that passage practically impossible, and the associated member states, which also have a responsibility, have made it impossible? Those individuals are falling into the hands of criminal gangs—traffickers—and are being exploited. Therefore, safe passage is not possible for many people.

I absolutely agree with that. I am happy to talk about this because I do not think the Government have a leg to stand on when it comes to how they plan to treat the most vulnerable human beings on our planet.

That takes me to some examples of why the Cart JR is so important. I talked about the case of the Venezuelan man, and a Conservative Member said that it was sad but true that some people would fall through the net. We are not talking about somebody appealing a parking fine; we are talking about somebody who is alive today because he was able to access—

If that is the case, does the hon. Lady support a fourth, fifth or sixth bite of the cherry? How can we guarantee that at the third bite of the cherry we are going to get everyone right?

The “third bite of the cherry” is not about whether the case is correct or the person’s claim is correct; it is about whether they got the correct process and mechanics in the first place. If they were not able to access justice in the first place, they should have the right to have that heard by a judge.

I take the hon. Lady’s point about the distinction in respect of what we are looking at, but people can still get that wrong. Does she support the fourth and fifth bite of the cherry?

I think the hon. Member is trying to trivialise what we are talking about and I am not going to entertain it any longer. To my mind, the justice system should not accept that sometimes people will end up dead because we did not get it right. We should be striving for justice always, not accepting injustice. I am not entirely sure that Government Members are interested, but I am going to look at some more examples given by ILPA, although I could probably give numerous examples involving my own constituents.

There is the woman from Uganda who could not live there because she is a lesbian. The first-tier tribunal and the upper tribunal refused her case and her renewed permission to appeal because they received a letter from her saying, “I have come here for a job. I am not a lesbian. Sorry I am a liar.” Anybody can see that that letter did not come from her. The upper tribunal judge admired her candour, but it was not her who wrote it; it was the appellant’s homophobic housemate. We must bear it in mind that people are given housemates when in the asylum system; they do not go and choose them. Thankfully, ILPA stepped in, she was given the right to a judicial review and won her case. She is able to live as who she is and the person she is, not having to hide from violence or homophobia, thanks to judicial review.

I wonder whether the hon. Lady will provide some clarity about the parameters within which she believes the system should work. Presumably, she cannot be saying that there should be unlimited rights of appeal. She cannot be saying that there should be no structure around how people can access courts and use them. She cannot be saying that every person who arrives in Britain should be able to appeal again and again. There must be some limits, some parameters, some rules and some grounds. What are they?

We have them already. I am perfectly happy with what is in place. It is the right hon. Gentleman’s Government who seek to change that and take away people’s access to justice. It is not me who is trying to change it. I am the one trying to stop them changing it and taking away people’s rights.

I will tell the Committee about another case. The claimant was in a relationship with a British citizen, and they had two children who were also British citizens, but the claimant’s partner suffered from serious health conditions. The claimant’s argument that removal would breach their right to respect for family life was dismissed by the first-tier tribunal and permission to appeal was refused. Following a Cart judicial review—the thing that Government Members want to take away from these people—the decision was overturned. The upper tribunal allowed the appeal under article 8. However, without the Cart judicial review, the family would have been separated.

The final person I want to talk about, from the Public Law Project’s evidence, is a Sri Lankan national who feared persecution, partly because of his involvement in diaspora activities in the UK. His perception was that he would be viewed as someone who was seeking to destabilise the integrity of Sri Lanka. It was argued that the first-tier tribunal judge had acted procedurally unfairly in refusing to consider all the evidence, including valuable video evidence, when deciding that the appellant was not actively involved in diaspora activities as claimed. Permission to appeal was refused by both the first-tier tribunal and the upper tribunal, but was finally granted on appeal, where it was considered that there were legal and compelling reasons for granting permission. An order was made quashing the upper tribunal refusing permission.

I will finish this story. Before the hearing in the upper tribunal, the Home Office conceded the appeal and accepted that the appellant was a refugee. If Cart had not been an option, that man would have faced deportation and almost certain persecution. Having lived and worked in Sri Lanka, and having kept in touch with many people there and many Sri Lankans living here, I can tell Members that that man almost certainly would not still be here had he been deported and denied access to Cart judicial review—the thing the right hon. Gentleman wants to take away. I will let him come in and explain that.

But 97% of these cases fail, and they fail on the grounds that the hon. Lady says she supports—she supports the existing system, as she made clear in her answer to my previous intervention. Given that she supports the existing system, and 97% of these cases fail, does she not recognise that something is going badly wrong?

When cases fail in respect of immigration, does she support the rapid deportation of people who have been through the system, sometimes more than once, and failed and had their case found to be wanting? Does she want those people who are found to be acting illegally to be deported, as we all do?

I said 97% of cases fail. When they fail, those people have exhausted the legal avenues that the hon. Lady says she supports—the current system, criteria and means by which people can make their case. When immigration cases fail, does she support the speedy deportation of those people?

On the issue of 97% of the cases failing, if the decision-making processes at the beginning of the claim were better, we would not have all those people going through the tribunal system. I absolutely support improving the capacity and decision-making process in the Home Office.

Is it not the case that those figures have been widely disputed? We have covered that intensively already. The Government’s parameters for success and failure are defined fairly arbitrarily in comparison with what we would understand or define as a successful testing principle, which is what judicial review is designed for.

I thank my hon. Friend for reminding me of that. I foolishly accepted the 97%, knowing it was not correct.

The hon. Lady has been generous with her time. Does she agree that, as we heard in the evidence session, Cart reviews are not just about immigration? They are also about sexual justice cases. It is starting to feel as if the Government wish to have a further bite of the cherry in their hostile immigration policy.

That is an excellent intervention and I absolutely agree. Interestingly, my notes state that we are not just talking about immigration. I agree about the hostile environment; it is vile. If I am right in saying that most of them could not care less about migrants, let us talk about cases of access to vital benefits for people with disabilities and others facing destitution and homelessness, who will be affected. Those are people who have been left without a last line of defence. This legislation will affect all four chambers of the upper tribunal. Individuals will no longer be able to apply to the High Court.

The hon. Lady said that she believes that we do not care about migrants. I find that deeply offensive. As a paediatrician I have worked with children who have been alone—unaccompanied asylum seekers—examining them and looking at their injuries and scars. We do care very much about migrants and reducing people trafficking—this evil, barbaric trading of people, which we need to stop.

What I find offensive is the way in which asylum seekers are treated right now, and the much more awful way that they will be treated if the Nationality and Borders Bill goes through in its current form—or, actually, in any form. I find that utterly offensive. I understand that on a one-to-one basis people will show kindness to individuals, but the hon. Lady is still going to vote for a system that will criminalise people who are desperate enough that they have no choice but to flee from their country, including people in Afghanistan right now whom we have not given safe and legal routes. They cannot wait any longer; they will die if they wait any longer. The hon. Lady will vote to criminalise them, or to offshore them, or to separate them from their families.

I am really pleased and absolutely certain that, one to one, the hon. Lady shows nothing but kindness and respect for people. However, that is very different from voting for a policy that does all the things that I just listed.

I am grateful to the hon. Member for Sleaford and North Hykeham for also making that point. Is not the essence of the problem, therefore, that the criminality that should be targeted is that of the traffickers and those who are exploiting these vulnerable individuals, rather than the individuals themselves—individuals who, through no fault of their own, when they arrive in the UK, are in an absolutely destitute situation? To criminalise them for using an illegal channel does not get to the root of the problem, which the hon. Lady has already correctly identified.

I could not have put it better myself. I completely agree with that. I do want to go on to look at other people who will be affected. Let us imagine that the Members opposite are not that bothered about asylum seekers and migrants, but they do care about people with disabilities. Currently, 16% of the working-age population live with a disability. That rises to 45% of adults over the state pension age.

Nobody can guarantee that they will not, one day, have a disability—that they will not, one day, be absolutely dependent on being able to access disability benefits. If for some reason they were to be wrongly denied those benefits, as happens far too often, and appeal to the courts, they need to have the right to question the decision-making process because, as we have heard, decision makers do not always get it right.

The hon. Lady must know that over 90% of Cart cases are immigration cases, although it is possible that some of those people might themselves be disabled. If she then takes the fewer than 10% of cases that are not immigration cases, a small minority of those will be of the kind she is describing. Of course, the hon. Lady is right that when disabled people are disadvantaged and need recourse to law, they should have it. However, the idea that she is promulgating—that somehow the Government are acting in a way that is disadvantageous to significant numbers of disabled people in the way she is suggesting—is not only inaccurate but irresponsible.

I do not think I suggested that there were huge numbers of cases of people with disabilities. What I said was that there are huge numbers of people with disabilities and huge numbers of people who could have disabilities in the future, and that they will be denied access to justice if they do not get justice first time around. That happens so often.

I am very pleased to hear that the right hon. Member has given up. Feel free to intervene again. [Interruption.] I will say that, from a sedentary position, he says that there are none so blind as those who will not see.

The right hon. Member can quote scripture at me all he likes. If we are going to talk about scripture, then we are going to talk about Christianity, which is surely about compassion. To say that it does not matter that this will affect people with disabilities because there are not that many of them who will be affected is just wrong.

That is what he implied. Anyway, I wanted to move on to ouster clauses.

Ouster clauses put decisions beyond the reach of the court. Despite the Government backing down after an outcry on proposals to include them in the Bill, they said:

“it is expected that the legal text that removes the Cart judgment will serve as a framework that can be replicated in other legislation.”

I agree with Amnesty’s proposition that the Government are explicitly using it as a test run for ouster clauses, and that it is a blatant and disturbing attempt to get rid of judicial oversight in other policy areas. As it also says, “The desire to get rid of judicial oversight in any area should be of the utmost concern to those who care about the rule of law and separation of powers.”

I suggest that we heed the warning of the Law Society of England and Wales that, “It is important to caution that ouster clauses have the effect of reducing legal accountability and preventing individuals who have been adversely affected from being able to secure a remedy.” They do not say anywhere, but there are not many of them, so let us not worry about it.

Judicial review may be inconvenient for the Government at times, but that is no justification for its removal. The implications of the Bill could be far-reaching, given the legal framework and its potential future use. The Bingham Centre for the Rule of Law, which I hope Members respect, said, “it is reasonable to say that ouster clauses are at odds with the rule of law.”

Finally, last week, in reference to the now former MP about whom the Standards Committee produced a report—I think all Members know what I am talking about—the Leader of the House said:

“It is not for me to judge him—others have done that—but was the process a fair one?”—[Official Report, 3 November 2021; Vol. 702, c. 938.]

That is the crux of judicial review. If the Government believe that we do not need access to Cart judicial review, did those who used it to win and get justice—such as the Venezuelan man fleeing for his life, the child requiring lifesaving treatment or the family who could finally be together—not require it, or were they not worth it?

It is a pleasure to serve under your chairmanship, Mr Rosindell. I will speak briefly about Brexit, which, as we know, happened a couple of years ago. After speaking to many constituents, one of the main reasons that they voted for Brexit was immigration and control of the borders. It is still a huge topic when I go door to door every week to speak to my constituents. Having got Brexit done, the Government said that they would do everything in their power to take control of the borders. This important Bill is part of that. Opposition Members should remember that, although they oppose the Bill, many of their voters agree with it. It is important to get it through.

Does the hon. Member think that politicians and political parties should slavishly follow public opinion, or that they should propose their own values and principles, based on human rights, and seek to take people with them and change public opinion?

The Government, and we as MPs, should listen to our electorate. I believe the Government are doing that. I understand that it is an extremely complicated subject, but I am afraid that when my voters see planes full of convicted criminals get last-minute reprieves and are taken off those planes, they lose faith in this place, in Opposition Members and in the entire system. It costs hundreds of thousands of pounds, too. I understand and appreciate that people sometimes fall foul of the system, but we have heard that it happens between 0.22% and 5% of the time—that is what we have heard. We must look after our borders and keep them under control.

We are on day three of going through the Bill. Even at day three, what I have heard from the Government Benches is purely about immigration. What would the hon. Member say to constituents of his who are looking to go through a judicial review by the court from a social justice aspect? I have heard nothing from the Government Benches regarding that—it is all about immigration and having voted to get out of Europe.

I think the hon. Lady has heard from the Government Benches many, many times that the majority of these cases are about immigration. When Labour Members have been asked how many bites at the cherry they want, we have never once had an answer. Would she like to come back on that? I assume not.

If the hon. Gentleman is seeking an intervention, I will provide him with one. The hon. Member for Ipswich said that Cart cases were a small number of cases, and even if they were justifiable, mistakes happen. I do not agree with that, but he made the point. I think, with respect, that the hon. Member for Don Valley is saying that it would be a good thing if cases that were unlawful were covered by the ouster, which is about preventing judicial scrutiny. In Cart cases, whether free, 7% or 5%, those cases were unlawful. It is not that we are not prepared to put the resource in and do not believe we should prioritise that type of case. I want to be clear about this. Is he saying that it is good if we introduce the ouster in Cart because that will mean that cases where an unlawful act has taken place will still not be decided and that deportation, or whatever he wishes to see, will happen, contrary to law? From the once party of law and order, that does not sound right to me.

I thank the hon. Gentleman for his intervention but I believe, in all fairness, that he has reiterated what I said before, and my reply would be exactly the same. How many times do we have to keep coming back to this? It is the same thing. It is about the majority of immigration cases. We seem to be batting back and forth with this, but Opposition Members are not coming up with the answers that I am asking for, either.

The reforms that we are arguing for are to restore the system that prevailed throughout the lifetime of the previous Labour Government. This change happened in 2011. If Opposition Members are so exercised about the need for the system to be as has prevailed in the past few years, why did they do nothing about it in the long period they had in government, when they presumably felt that the system that we are now trying to restore was perfectly adequate?

I thank my right hon. Friend for that, but I want to move on because I am conscious of time.

I do understand that these people that are coming over here are leaving places that are in a terrible state and what they are leaving is sometimes awful, and I do have full sympathy for that, but there is a legal way of entering this country, and I believe that everyone should take the legal way into this country. When people get into these small dinghies they know they are entering our country illegally. If they are entering our country illegally, then they must have to deal with the consequences that go with that.

On a point of order, Mr Rosindell. I am sorry to interrupt the hon. Gentleman, but is this within the scope of the Bill? This is not a Bill about borders or preventing people from coming in.

I have almost finished anyway. If I keep being intervened on, it might take a little longer. My argument is that if people are coming into this country on their dinghies and entering illegally, then they will be dealt with through the system, and I do not believe that they should have a third bite at the cherry. That is all I am trying to say.

It was mentioned that it has taken 180 days for a High Court judge to deal with this. The amount of backlog in the system is really not helping. We need to bring it to a close. The same people tell me they want their MP to sort out fly-tipping, antisocial behaviour and all low-level crime. While Members are dealing with these issues, we are not dealing with the things that affect our constituents on a daily basis. We must always remember in this place that we work for the people who vote for us. I will do everything I can while I am in this position to listen and help them live a good, safe life.

It is a pleasure to wind up this stand part debate, which has been passionate. We have had some excellent speeches and interventions from both sides, and I will refer briefly to a few of them. The hon. Member for Lewisham East said that we are talking about human beings. We have heard cases that all of us would be sympathetic to, but that is not the point. Those using all the other parts of the legal system, where it is absolutely standard to have “two bites at the cherry”, are human beings too.

If there is a planning case, for example, where some houses are approved and your parish disagrees, it can seek judicial review through the High Court. If that is denied, it can potentially—although it is unlikely—try the Court of Appeal. That is it: two bites. That is the standard procedure, and it will still apply for cases of immigration and asylum, including all the people we have heard. As to what would happen to those who were successful, that is where we have to make a judgment on proportionality and accept that there would potentially be some cases that would have been found to be unlawful. However, as my hon. Friend the Member for Ipswich said in an excellent speech, where do you draw the line?

The Labour Front-Bench spokesman, the hon. Member for Hammersmith, quoted Professor Feldman in aid, but it was Professor Feldman himself who admitted that ultimately when we look at it—he took a very balanced view—this was a disproportionate use of resource, where 96.6% of cases are proving to be unsuccessful. When the rate of failure is so high, I wonder why legal representatives are advising their clients to go down that path. It calls into question whether it is, in effect, another route of appeal, and a chance to extend the case further, because, as I said earlier, it can be in the system for up to three months.

I think the Minister makes my point for me. I deliberately quoted Professor Feldman because, yes, he did see some merit in the proposals of Cart, but he went on to warn about the wider dangers—the series of quotes that I gave was on this point, which I am sure the Minister will address—of opening the door to a much wider and further restriction through the use of ouster in future.

On the cherry point, the argument I put forward was that an unlawful decision of the first-tier tribunal is not being picked up by the upper tribunal—hence the illegality and hence the deportation, or whatever it is, happening contrary to the law—and is being picked up through Cart. It is the first bite at the cherry. It is correcting an error at first instance, which has not been picked up by the upper tribunal.

The hon. Gentleman has been asked repeatedly whether he thinks, on that basis, that we should extend the right to three bites at the cherry to all other areas of law. What would be the cost? How much more resource would that take up? If he does not think that, he must be saying to all our constituents that immigration and asylum are exceptional, and overwhelmingly that immigration cases should have that additional right. I think our constituents would disagree. It is right for the Government to exercise judgment on matters of the use of resources.

This is precisely the point I made when I intervened on the hon. Member for Glasgow North East. What are the parameters? What are the limits? Where is the line drawn? We have heard none of that from any of the critics of the Bill and the Government are simply trying to re-establish the parameters that prevailed for most of time, which give the system integrity and substance, and which make it not only workable but defensible.

I am grateful to my right hon. Friend. I want to correct one point about what happened under previous Labour Governments. It is quite extraordinary that the hon. Member for Hammersmith talks about this tightly drafted ouster clause somehow being a precursor to further ouster clauses that could go much wider. As I said on Second Reading, the Minister responsible for Labour’s Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, the right hon. Member for Tottenham (Mr Lammy), admitted in this sort of Committee sitting that they were trying to bring in the mother of all ouster clauses, so widely was it drafted. To be clear, it was not the same system. It was not the upper tribunal. There was a single-tier immigration and asylum tribunal. Judicial review was in that sense the second tier. They were going to remove it even where they did not have the upper tribunal in place. That is an extraordinary situation and it underlines that what we are restoring is a situation wholly consistent with the European convention on human rights.