ANIMAL HEALTH AND WELFARE (SCOTLAND) BILL CONSULTATION

RESPONSE ON BEHALF OF THE SCOTTISH KENNEL CLUB

Part One: Animal Health

While it is understood that Part One relates mainly to livestock health, certain aspects apparently relate to companion animals. Despite the Addendum added paragraph 21A, there are still concerns regarding authority over animal gathering and spread of disease.

Biosecurity Codes: Question 4 - Do you agree that there should be criminal offences that apply to the new Biosecurity Codes?

At present, The Scottish Kennel Club understands that Biosecurity codes act as guidelines. However, SKC would seek assurances that codes such as these will not apply to dog or dog shows particularly with regard to the 'day-to-day' basis.

During the recent FMD, dog show societies took it upon themselves to cancel shows in order that FMD was not spread to other parts of the UK.

Animal Gatherings: Question 5 - Do you agree that animal gatherings (including animal dealers) should be licensed to operate?
Although again in the Addendum, examples have been given where certain 'events would not normally be subject to licensing'. However, these examples are purely horse related. Scottish Kennel Club is concerned that animal gatherings such as dog shows, training classes and socialisation classes etc will become subject to licensing given that Scottish Ministers would be afforded such powers as they see fit.
Scottish Kennel Club seeks assurance that the Draft Bill will be amended to positively exclude such shows/classes from these powers.

Part Two: Animal Welfare

The Scottish Kennel Club welcomes the commitment to improve animal welfare in Scotland and would urge the Executive to give consideration to the following points of concern expressed by members of the pedigree dog community in Scotland.

Definitions of 'animal': Question 1 - Do you agree with the definitions of 'animal' and 'protected animal?'

Scottish Kennel Club understands the intention to define 'animal' based on the ability to have sentience and experience suffering and cruelty.
Newborn puppies are neonates whose senses do not develop till some days after birth and, therefore, do not experience pain, but may suffer cruelty. Scottish Kennel Club would urge the Executive to include neonates within the definition.

Unnecessary Suffering: Question 3 - Do you agree with the scope of unnecessary suffering?
As per the following question and the scientific evidence, it is 'reasonably known' among those owners/breeders of docked breeds that by not docking a dog, this 'omission' will cause the animal to suffer. It is confusing to accept the premise that by docking, these owners/breeders would be guilty of an offence while, at the same time, by not docking, an offence would still be committed.

Mutilation: Question 4 - Do you agree with the definition of mutilation and with the provision that certain procedures can be carried out if specified in regulations?
As stated in the previous round of consultation, Scottish Kennel Club is concerned with the use of the word 'mutilation'. We believe that the use of this term is both offensive to responsible, caring breeders and is emotive enough to appall the senses.
Scottish Kennel Club remains concerned that section 18(4) which states that prohibited procedures include interference with the sensitive tissues of the animal and that this will include tail docking. It has yet to be shown that there is any sound, scientific evidence for a ban on tail docking and we believe that it is incumbent on the Scottish Executive to make regulations based on sound scientific principles rather than on emotion, prejudice or outside pressure.
Scottish Kennel Club is disheartened that the draft Bill will effectively place a ban on docking of puppies while dismissing the scientific evidence presented by professors that tail docking of puppies does not cause pain .

• Since the research concludes that tail docking is not harmful to puppies, amending the current legislation is unnecessary and that breeders should be able to continue to exercise choice. Since the Veterinary Surgeons Act was amended in 1993, after an agreement was reached by the then Council for Docked Breeds, the RCVS and the Westminster Parliament, some 83,000 puppies of docked breeds have been registered at the Kennel Club each year. These have been legally docked by vets yet not one vet has been disciplined or struck off as a result. One has to wonder from whence the pressure comes to initiate a ban on docking puppies while allowing the docking of lambs whose development is complete at birth and, therefore, these lambs are subjected to pain.
  
• Had there been any scientific evidence on which to base a ban, it would have been presented at this stage of discussions.
  
• Scottish Kennel Club would urge the Scottish Executive to examine the research produced by various professors: Professor Hales, Professor Rudolf Fritsch , and Professor D Grandjean who has established that any comparison between the pain reception of newborn human babies and that of newborn puppies is scientifically invalid.
  

Animal Fights: Question 6 - Do you agree with the scope of the offence of animal fights?

Scottish Kennel Club would urge the Executive to widen the scope of this offence in that the possession of any equipment or such like which can be used to aid dog fighting should also be an offence.

Promotion of Welfare: Question 7- Do you agree with the provisions to ensure the welfare of animals?

Scottish Kennel Club cannot agree that there are circumstances where the provisions as described in this section to ensure the welfare of animals cannot be met.

Licensing etc. of activities involving animals: Question 8 - Are the powers of Scottish Ministers sufficient and satisfactory to ensure that animal related activities can be adequately licensed and registered?

As stated in answer to Part One, Question 5, Scottish Kennel Club is disturbed that this may include dog shows and/or training classes. So many small training clubs offer an excellent service in the training of and rehabilitation of dogs. Licensing would most probably place an unbearable financial strain which may lead to closure.
The 'Duty of Care' states adequate socialisation is part of the necessary requirements. These classes/groups provide much of the socialisation so lacking in our society due to adherence to bans in public places. European dogs are not so encumbered by this denial having the ability to enter restaurants, shops etc. where they are made extremely welcome. It would be yet another removal of what little socialisation UK dogs are allowed.
Scottish Kennel Club's remit is to promote the interests of dogs, particularly pedigree dogs. There is a culture of hobby dog-showing throughout the UK. Scottish exhibitors travel great distances to participate. In return, other UK exhibitors as well as European exhibitors travel to those shows held north of the border. SKC holds two Championship Shows per year attracting some 14000 dogs. Obviously the exhibitors and visitors alike bring much needed tourism income so important to the Scottish economy.

Abandonment: Question 10 - Do you agree with the scope of abandonment?

Scottish Kennel Club is concerned that section 26(3) states that the determination of the offence relates to its species, age and state of health.
Scottish Kennel Club is concerned that elderly and/or ill animals may not be considered under the offence of abandonment and would seek assurances that this apparent loophole will be plugged.

Sale of animals to children: Question 11 - Do you agree that there should be a prohibition on the selling of animals to persons under 16 years of age?

Scottish Kennel Club agrees with the principle behind the draft legislation. However, since SKC also liaises with breed rescue organisations, we are aware that many problem/ill dogs are supplied by pet shops - including animal dealers selling puppies from the boot of the car at motorway service stations - and, therefore, we do not believe any animals should be sold in Pet Shops at all.
As with other organisations of like mind, we have been striving to educate the public that, before purchase, it is imperative that the puppies are seen with their mother. This is not possible in a pet shop nor with a puppy bought from a dealer.
Scottish Kennel Club believes that licences to sell live animals in shops or the new proposal to license animal dealers, only serves to convey respectability of this type of trade and seriously undermines decades of work.
SKC maintains a Breeders' Register to inform and educate any purchaser as to what they should accept. Entry on to the register is conditional that all legal requirements have been met, that the puppies are registered at the Kennel Club and that detailed information is given as to diet, training, worming, receipt etc.
Puppies which have been separated from their mothers too early have missed out on valuable maternal education. In the main, they have behavioural problems, social problems and some aggression problems.
There is also concern among the wider community of pedigree dogs regarding the fate of 'left-over' puppies.
Without dealers and pet shops selling live animals, the puppy farmers' outlets would wither and their own business would cease.
Scottish Kennel Club urges the Executive to review these proposals in their entirety.

Other orders relating to animals taken: Question 15 - Do you agree with the extent of the powers that are available to courts to deal with animals taken into possession?

Scottish Kennel Club remains concerned that under Section 31(1), the court may order that the animal be destroyed, sold, or disposed of in another manner.
Scottish Kennel Club considers that this should be more detailed in secondary legislation as 'disposed of in another manner' is too vague and may encourage less humane methods.

Resort to the destruction of animals: Question 16 - Do you agree with the provisions which allow an animal to be destroyed?

Although there are circumstances that arise when an animal must be destroyed, Scottish Kennel Club is concerned that this may be done 'by any other person' and would prefer this provision to be removed from the primary legislation.
It is of concern that this destruction may not be carried out by an authorised person/inspector.

Animal Welfare Bodies: Question 17 - Should Scottish Ministers have the powers to make regulations to establish animal welfare advisory bodies and facilitate the co-ordination of bodies that have functions relating to animal welfare?

Scottish Kennel Club seeks assurances that authorities such as The Scottish Kennel Club who have authority over all pedigree dogs in Scotland will be included should this body be set up. Scottish Kennel Club works closely with breed rescue organisations in the welfare and education issues required within the pedigree community. There is a wealth of knowledge within the Club which could be of great assistance to the Executive.

Post-conviction orders: Question 19 - Do you agree with the provisions of deprivation Orders, destruction Orders, disqualification Orders, breach of disqualification Orders and the suspension of Orders pending appeal?

The Scottish Kennel Club is in full agreement with the Kennel Club as follows:-

Deprivation Orders: The Scottish Kennel Club does not agree that there is a need for deprivation Orders.
Although the Scottish Kennel Club agrees with the provision of deprivation Orders set out in section 35 (2) (a) which would prevent a person convicted of a relevant offence from caring for the animal in relation to which that offence was committed and in turn improve the welfare of that animal by removing it and any dependent offspring from the offender, this provision is similar to that set out under Disqualification Orders, section 37 (2). This states that where a person is convicted of a relevant offence the court may make an order to disqualify the offender from owning animals, keeping, and participating in the keeping of animals and being party to arrangements under which the keeping of animals may be controlled or influenced.
In addition to this the Scottish Kennel Club is concerned about the provision set out in section 35 (2) (b) that states if a person is convicted of a relevant offence, the Deprivation Order against them would result in the destruction or disposal of the animal and any dependent offspring. It is misleading and confusing that such a provision would be granted under a Deprivation Order rather than a Destruction Order.
While the Scottish Kennel Club would agree that depriving a person convicted of a relevant offence from owning an animal (by way of a Deprivation Order or a Disqualification Order) would be in the best interest of that animal, and also prevent other animals being subject to the same treatment by the offender, the provision to destroy or dispose of the animal concerned does not have the same regard for the welfare of that animal and does not go as far in punishing the offender: allowing for an animal to be destroyed or disposed may actually be less of a punishment for offenders - who without being deprived of the privilege of owning an animal could go on to own and carry out offences towards more animals, that would subsequently be destroyed or disposed of.
Scottish Kennel Club also remains concerned that the draft Bill states it would be appropriate for a protected animal to be destroyed by 'any other person' for reasons stated previously under Question 16.

Destruction Orders: While the Scottish Kennel Club agrees that the destruction of an animal is sometimes necessary, an animal should only be destroyed in exceptional circumstances. This is why the Scottish Kennel Club is concerned about the protocol set out in paragraph 57, which states that before a Deprivation Order, a Destruction Order and a Seizure Order can be made. The Scottish Kennel Club would prefer the Executive amend section 36 to require a court to state the reasons why it decides not to make a Deprivation or Disqualification Order where a relevant offence has been committed. This protocol is set out in section 60 of the consultation document in relation to Deprivation Orders and Disqualification Orders, but not Destruction Orders.
Further the Scottish Kennel Club would like to see section 36 (4) amended so that even in relation to an offence committed under section 21 (animal fights) a court would not be able to make a Destruction Order unless satisfied this was in the animals' best interests. Further consideration needs to be given to the fact that in some cases, it is possible to re-home dogs once used for fighting.

Disqualification Orders: The Scottish Kennel Club welcomes the fact that Disqualification Orders focus on the offender but remains concerned that such Orders do not on the face of the Bill indicate what would happen to the animal in the offender's keeping at the time an offence was committed. To ensure the equitable treatment of animals, the Scottish Kennel Club would recommend that the court consider an appropriate way to deal with all animals, not just those of a specific kind. For example, provisions could be made for the removal of an animal to a place of safety or the caring of an animal at the place where it was found or at another place.

Breach of disqualification: Seizure Orders: The Scottish Kennel Club does not agree that there is a need for seizure Orders.

Since Seizure Orders reiterate the provisions outlined under disqualification Orders and only come into force if Disqualification Orders are breached, it would appear that their existence undermines Disqualification Orders: their inclusion in the Bill assumes that offenders will breach Disqualification Orders and even encourages this by not subjecting repeat offenders to more severe penalties. The Scottish Kennel Club would recommend that if an offender breaches a Disqualification Order, and thereby breaks the law, they be subject to fines or imprisonment depending on the severity of the offence committed and that section 37 on Disqualification Orders be re-drafted in light of this.
If Seizure Orders remain part of the final Bill, the Scottish Kennel Club would also be concerned that this Order could not be imposed unless the Court took into consideration how to protect the value of the animal and minimise any expenses that needed to be reimbursed - this implies that if the animal was not of a high value, the court would instead impose a Destruction Order.
With regards to all Orders, the Scottish Kennel Club notes that each can be imposed in relation to offences for mutilation - but for the reasons outlined previously, the Scottish Kennel Club is of the opinion that tail docking and dew claw removal should be exempt from any list of mutilations.

Proceedings: Question 20 - Do you agree with the timescales for bringing proceedings for an offence under the Bill?

The Scottish Kennel Club would encourage proceedings for an offence under the proposed legislation or accompanying regulations to be brought within a period of 6 months from the date on which evidence sufficient in the opinion of the prosecutor to justify the proceedings came to the prosecutor's knowledge, as stated in section 41 (1) of the draft Bill. The Scottish Kennel Club would not, however, welcome proposals that set a time limit for taking such proceedings forward. While the Scottish Kennel Club appreciates that under existing legislation, it can be difficult to prosecute for cruelty to animals when evidence of the offence has not been discovered until considerable time after the offence was committed, it is certainly still possible and should therefore not be outlawed.

Exception for Fishing: Question 23 - Do you agree that fishing should be excluded from the scope of the Welfare part of the Bill?

As the duty of care states that animals must have the right to 'express normal behaviour', Scottish Kennel Club suggests that Field Trials, Tests of Work and Rough Shooting should also be exempt as these are important aspects regarding the assessment of a Gundog's ability to express normal behaviour.

Inspectors: Question 24 - Do you agree with the system for appointing 'inspectors' and that inspectors will not incur criminal liability?

Scottish Kennel Club is in full agreement with the Kennel Club as follows:-
To ensure that Inspectors are not deterred from acting in the best interests of the animals or intimidated by a person in possession of an animal whose welfare is in question, the Scottish Kennel Club would agree that inspectors should not incur civil or criminal liability for their actions when exercising any functions conferred on them, if they had reasonable grounds for carrying them out and acted in good faith.
The Scottish Kennel Club does however remain concerned that the draft Bill effectively delegates an unlimited power to Scottish Ministers and local authorities to decide who may act as an inspector and believes that, at the very least, the Bill should specify the appropriate categories of person or 'characteristics' of persons who may be appointed to the role. As having inexperienced or unqualified inspectors would undermine the effectiveness of the Bill and destroy trust in the inspection regime, the Scottish Kennel Club seeks assurances that:

• At the very least inspectors must not have any conviction for animal cruelty or a record of having had an animal removed for protection.
  
• Any 'person' or 'body' chosen as an authorised inspector will have to demonstrate competence and be trained to a set of common standards that ensures that the provisions contained in the Bill will be upheld and carried out to the highest possible standard.
  
• A national qualification for animal welfare inspectors be put in place as soon as is practicably possible and that all persons appointed to these positions be required to complete this course before being allowed to carry out their duties under the Bill.

Powers of authorised persons: Question 25 - Do you agree with the powers of entry, search, inspection and seizure which authorised persons will be given?

Under Schedule 1, paragraph 5 which sets out the conditions for granting warrants, the Scottish Kennel Club is of the opinion that a warrant should not be required in the circumstances defined in sub-sections (3) and (4). These are that premises are unoccupied or the occupier is temporarily absent - time periods would need to be defined in secondary legislation.

Further review of existing legislation: Dangerous Dogs Act; Breeding and Sale of Dogs (Welfare) Act

The Scottish Kennel Club is in full agreement with the Kennel Club as follows:-
The Scottish Kennel Club is pleased that the Animal Health and Welfare (Scotland) Bill has modernised and consolidated a vast array of existing animal welfare legislation following an extensive review. The Scottish Kennel Club does however regret that in undertaking this review the Executive did not attempt to review or amend the Dangerous Dogs Act 1991, or address the Scottish Kennel Club's concerns regarding the Breeding and Sale of Dogs (Welfare) Act 1999.

THE DANGEROUS DOGS ACT

The Scottish Kennel Club recommends that the current legislation be reviewed for the following reasons: it only applies after an incident has taken place, rather than operating on a preventative basis; it only applies when the dog is in a public place, or a private place where it is not permitted to be (so that persons entering a private place where the dog is permitted to be have no protection); it only applies to dogs that have acted dangerously towards people; the only alternative to destruction is a Contingent Destruction Order, breach of which leads to mandatory destruction, with no additional penalty to the offender; there is no provision for a seized dog to be returned to its owner pending a full hearing and; despite numerous circulars reminding prosecuting authorities that the Dogs Act 1871 is still in force, the DDA continues to be widely used for less serious incidents.
The Metropolitan Police alone have spent several million pounds since the inception of the Act and those involved do not perceive this to be an effective use of resources. In addition the Act and its predecessors (primarily the Dogs Act 1871) have failed to prevent a number of attacks by dogs. Statistics from this country and overseas indicate that the majority of dog bite incidents involved a dog known to the person bitten.

• Section One of the DDA be repealed as the draft Animal Health and Welfare (Scotland) Bill makes provision to tighten up the regulations relating to dog fighting and may also cover the advertising and selling aspects of Section One. Repealing Section One will also remove the contentious issue of identification.
  
• Under the Animal Health and Welfare (Scotland) Bill, a legal duty of care is placed on the person in whose keeping the dog is. Control is a welfare issue as an uncontrolled dog may be caused injury by, for example, involvement in a road traffic accident or fighting with another dog. The proper control should also act as a measure of protection for the general public.

Breeding and Sale of Dogs (Welfare) Act 1999

Although the consultation document on the proposals to revise existing animal welfare legislation included a review of the Breeding and Sale of Dogs (Welfare) Act 1999, the Scottish Kennel Club regrets that the 'business test' element of this legislation remains to be more specifically defined under new legislation in order that it captures those breeding for commercial gain; currently, the prohibition of having more than one litter in twelve months catches out a large number of hobby breeders. If it is not possible to more specifically define this legislation, the Scottish Kennel Club would recommend a new clause be introduced to prohibit the breeding of a bitch until nine months had elapsed from a previous litter - this would prevent breeding at successive 6 month seasons but would allow two litters within a year for bitches that came into season early.

With regard to the issue of the trade in young puppies by dealers who purchase these animals outside of the UK for resale in Scotland, the Scottish Kennel Club does not support any such trade. The Scottish Kennel Club position is that all prospective dog owners should consult with and buy from the original breeder, as they are then able to receive expert advice on its health and welfare and see the environment it was raised in and its mother - reply to Question 11.

Additional: Defining duty of care; Electric Shock Collars; Licensing of Dog Track Kennels

As it has already suggested, the Scottish Kennel Club would recommend the Executive consider including sections on the following areas on the face of the Bill to better achieve its objective of improving animal welfare.

Definition of Duty of Care
Although the Bill introduces an offence for the failure to take reasonable steps to ensure the welfare of animals, and thereby introduces a duty of care on those responsible for animals, the Scottish Kennel Club would urge the Executive to define the term duty of care on the face of the Bill as: freedom from hunger and thirst; freedom from discomfort; freedom from pain, injury and disease; freedom to express normal behaviour; freedom from fear and distress.

Electric Shock Collars

The Scottish Kennel Club strongly recommends the Executive regulate the sale and use of shock collars as soon as possible. Independent, scientific evidence proves that the use of shock collars is cruel. As this evidence demonstrates their use is 'unpleasant…painful and frightening' and 'may influence the dog's well being in the long term in a negative way' (Applied Animal Behaviour Science Journal), a power should exist in the Bill for regulations to be introduced to ban the use of shock collars.

Licensing of Dog Track Kennels

The Scottish Kennel Club is disappointed that the Bill does not contain a section on the Greyhound racing industry as although the industry is self-regulated, many tracks are run independently. The Scottish Kennel Club would encourage the Executive to introduce a provision in the Bill to call for external, independent regulation of all tracks, as a matter of urgency.

Signed on behalf of The Scottish Kennel Club

Jean Fairlie
Parliamentary Liaison Officer