Control of Dogs (Scotland) Bill: Stage 2
Amendment 1, in the name of Christine Grahame, is grouped with amendments 2 and 3.
Amendment 10, in the name of David McLetchie, is in a group on its own.
Under amendment 10, if an individual feels apprehensive about the safety of an animal that is not kept under the control of humans, such as an animal living in the wild, such as a squirrel, their apprehensiveness would not be relevant and a dog could never be considered out of control in such circumstances. We think it appropriate that the two-part test that must be met before a dog can be deemed to be out of control should include situations where apprehensiveness is felt by an individual for the safety of any animal.
Although we understand the intention behind amendment 10, our view is that a dog owner must take responsibility for their dog’s actions at all times, including when the dog is in the countryside and around animals living in the wild. The way in which the two-part test is defined makes it clear that it is only where an individual’s apprehensiveness is seen as “reasonable” in respect of the safety of another animal that an authorised officer can consider issuing a dog control notice. We would expect authorised officers to take careful account of all the circumstances before deciding whether to issue such a notice.
As a result, we oppose amendment 10.
The question is, that amendment 10 be agreed to. Are we agreed?
Members: No.
Section 2(8) sets out the mandatory content of a dog control notice and section 7(3) sets out grounds on which an application to discharge such a notice may be made. In each case, the section erroneously refers to an “order”. The amendments insert the appropriate term.
I move amendment 4.
Christine Grahame (South of Scotland) (SNP)
This group of amendments seeks to address the committee’s concerns in paragraphs 67 and 69 of its stage 1 report relating to the test to establish whether a dog is out of control and the potential for a lack of consistency in decisions by authorised officers.
Section 1(3) sets out the test that must be met in all cases to establish that a dog is out of control. The test is in two parts, and both parts must be met before a notice can be issued. The test requires both that the proper person is not keeping the dog under control effectively and consistently, which is dealt with in paragraph (a), and that the behaviour of the dog, or the size and power of the dog, gives rise to alarm or apprehensiveness on the part of any person, which is dealt with in paragraph (b).
As I said during the stage 1 debate, a reasonableness test is used in many acts and is a widely recognised proposition. It applies to MSPs when we consider what interests to register. For example, with regard to an overseas visit, the test for registration involves consideration of whether a fair-minded and impartial observer could reasonably consider that the visit would prejudice a member’s behaviour. Under the Control of Dogs (Scotland) Bill, authorised officers will have to ask themselves whether a fair-minded and impartial observer could conclude that the behaviour or actions of the dog would cause alarm or apprehensiveness. Only if the authorised officer can answer that question in the affirmative can they consider that a dog is out of control. Section 2(8)(d) also requires authorised officers to explain the reasons that have led them to issue a notice. If a person receives a notice and does not agree that the dog is out of control, they can appeal to the courts, which will rule on the matter. That element is important: unreasonableness can be challenged.
The committee also considered the term “size and power” and paragraph 68 of its stage 1 report recommends that the term be removed as it was considered to undermine the deed-not-breed principle of the bill. However, I have looked again at the out of control test and I am convinced that it is framed in such a way that it focuses on deed. A dog that is large and powerful and which might otherwise cause alarm or apprehensiveness, such as a Rottweiler, but which is kept under control cannot be the subject of a notice. The same Rottweiler walked by a person who, for whatever reason, is incapable of controlling the dog because of its sheer size and power could be considered to be out of control, but only if, for example, it was snapping at people or other dogs. The deed is made up of the actions of the dog allied to someone being in charge of a dog that they cannot physically control. Taking that argument one step further, a dog that might not be large or powerful, such as a Yorkshire terrier, but which behaves in a manner that causes alarm or apprehensiveness and is not controlled effectively and consistently would also be out of control. It is irrelevant what breed or size of dog is misbehaving. The bill concentrates on the deed and its effect on individuals and others. That takes us back to the reasonableness test because actions such as growling, barking or jumping up at people might be more alarming if performed by a larger and more powerful dog than if performed by a Yorkshire terrier.
Amendments 2 and 3 clarify that the alarm or apprehensiveness of an individual must not be unreasonable. That means that, irrespective of an individual’s concern, a dog control notice can be issued only when the authorised officer is satisfied that the alarm or apprehension that has been experienced would be held by a reasonable person and can therefore be deemed to exist from an objective standpoint.
Having sought to amend section 1(3)(b), I have also taken the opportunity to propose an amendment—amendment 1—that makes a minor change to tidy up the grammar of this section.
I move amendment 1.
Amendment 6, in the name of Christine Grahame, is grouped with amendment 7.
In their submissions to the committee, the Kennel Club and, in particular, the dangerous dogs act study group express concern that
“Section 1 (4)(c) seems to risk a dog making a small rodent ‘apprehensive’ an offence. This could theoretically lead to the seizure of any dog which attacked a rat or rabbit for example.”
However, in its submission, Advocates for Animals did not share that view. Given the confusion that has arisen over this provision, it might be helpful to clarify the position before I address amendment 10.
First, under section 1(4), “apprehensiveness” may be felt by an individual in relation to their own safety, to others’ safety or to the safety of other animals. The bill’s definition of “out of control” provides safeguards for people with responsibility for working dogs, who might use dogs legally to track, control or flush out other animals such as rats and rabbits. Before a dog can be considered out of control under the bill, it would have to be both out of control and causing a person to be alarmed for or apprehensive about their own safety or the safety of others or of an animal other than the dog in question. If alarm or apprehensiveness is not present, the out of control test cannot be met. If a legal activity involving the tracking, controlling or flushing out of animals was alleged to have caused alarm, the authorised officer must consider from an objective standpoint whether both tests have been met. In other words, as long as a dog is kept under control, it will not be the subject of a dog control notice. No dog is exempted from the bill’s provisions—and nor should it be, because that would defeat the bill’s purpose of promoting responsible ownership of dogs.
Amendment 10 seeks to replace the words “an animal” with
“a protected animal (within the meaning given by section 17 of the Animal Health and Welfare (Scotland) Act 2006)”.
Any explanation of protected or, for that matter, unprotected animals is—believe you me—long and complex. The position is not straightforward, but I will try to explain it using deer as an example. Are you sitting comfortably? [Laughter.] Farmed deer are classed as protected animals as they are under the control of man. On the other hand, wild deer are not protected, even where the land manager provides supplementary food or fodder for them, and neither is a farmed deer that has escaped from the farm and is living in a wild state. However, if deer are managed in such a way that the land available to them is restricted to such an extent that they cannot live in a wild state, they must be considered to be under the control of man and therefore are protected animals.
The effect of amendment 10 is to exclude an individual’s alarm or apprehension if it relates to unprotected animals, which in practice would mean that an individual’s alarm or apprehensiveness could not relate to a dog’s behaviour towards, for example, swans, wild deer, ducks and badgers. That concerns me greatly as that is the very behaviour that my predecessor on the bill, Alex Neil, sought to address in his consultation, in which he set out the examples of a swan that had to be put down after an attack by a Rottweiler, leaving her six cygnets abandoned and of a terrier that crawled into a badger’s sett and killed the cub. Clearly, in both cases the owners were partly responsible in that they did not keep their dogs under control.
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It is clear to me that the bill provides sufficient safeguards for those using working dogs to carry out their pest control duties. By their very nature, working dogs are well trained and responsive to their handler’s commands. Equally important, however, the bill’s out of control test is flexible enough to address out of control behaviour where animals such as swans, badgers or deer are threatened or attacked.
I am sure that Mr McLetchie did not intend this, but amendment 10 would overcomplicate the implementation of the out of control test, making it harder rather than easier for authorised officers to decide whether to serve a dog control notice. In addition, it would create a division between the types of animals covered by the bill where none is required.
I hope members will be reassured that the two-part test is effective as drafted and I urge the committee not to support this amendment.
The result of the division is: For 1, Against 6, Abstentions 0.
Amendment 10 disagreed to.
Section 1, as amended, agreed to.
Section 2—Content of dog control notice
In paragraph 143 of its stage 1 report, the committee agreed with the Subordinate Legislation Committee’s recommendation that I should lodge appropriate amendments at stage 2 to put beyond doubt how the power at section 2(7) in relation to the content of dog control notices will be used. In the stage 1 debate, I agreed to do so and, as a consequence, the matter is addressed in amendments 6 and 7.
I will explain the detail of the issue in question and the amendments that I hope will address both committees’ concerns. Section 2 specifies requirements of a dog control notice additional to the requirement set out in section 1(1) to bring and keep the dog under control, sets out information that must be included in the notice and lists some indicative control measures. In particular, section 2(1) sets out further requirements that are considered to be important to the effective operation of the regime of dog control notices but that might require further refinement in light of operational experience. Such requirements might include, for example, the implantation of an electronic transponder.
Section 2(6) lists other measures such as neutering a male dog that may be included in a dog control notice if thought appropriate. Section 2(7) gives the Scottish ministers the power to amend the requirements that must be included in a dog control notice as set out in section 2(1) and enables them to add to the list and to amend or add to the illustrative list of steps in section 2(6). The powers are exercisable by statutory instrument. They are, however, subject to affirmative resolution procedure because it is considered that, although they are more closely related to administrative matters and the operation of the bill, they could affect important provisions such as those in subsection (1) and will affect primary legislation.
Amendment 6 removes words that would be rendered unnecessary by amendment 7. Amendment 7 in effect reinstates the power to amend any paragraph that is added by paragraphs (b) or (c) of subsection (7). That was the effect of the words removed from paragraph (a) of subsection (7) by amendment 6. Given, however, that amendment 7 deals specifically with added paragraphs, I considered it appropriate to include provisions relating to them in the same amendment. Amendment 7 also makes it clear that the power to amend an added paragraph includes the power to remove it. I did not consider it appropriate that ministers, having added a requirement or a step, should not be able to remove it. Therefore, amendment 7 allows paragraphs that have been added by subordinate legislation—but only those paragraphs—to be omitted later. That should also make it clearer that the power to amend the paragraphs that are already in the bill, not added by the Scottish ministers, does not include the power to remove them, as no explicit power to omit is given—in contrast to the power relating to the added paragraphs.
Let me summarise. By affirmative procedure, paragraphs can be added to the requirements relating to the dog control notice, its service and any steps to be taken in relation to it. Amendment 7 adds the power to amend those additional paragraphs as well as the paragraphs that are already in the bill. It will be possible to omit those paragraphs that are added subsequently by affirmative procedure, but it will not be possible to omit those that are already in the bill. Is that clear? Shall I start again? The provisions in section 2(1), on the dog control notice and its service, and in section 2(6), on the range of things that must be done once the notice has been served, can be added to by ministers through affirmative procedure. It will be possible to amend all the provisions in those subsections—whether they are already in the bill or added later—but the ministers will be able to omit at a later date only those that they have added subsequently, not those that are in the bill now. That is what my amendments will ensure. I hope that that is clear and addresses the concerns that the Subordinate Legislation Committee had. Any changes to the bill would have to be made through affirmative procedure, which requires pretty rigorous scrutiny by committees.
I move amendment 6.
Amendment 4, in the name of Christine Grahame, is grouped with amendments 5 and 9.
These are technical amendments and we are happy to support them.
Amendment 4 agreed to.
Section 2, as amended, agreed to.
Sections 3 to 6 agreed to.
Section 7—Discharge or variation of dog control notice on application of person on whom it was served
Amendments 5 and 9 moved—[Christine Grahame]—and agreed to.
Section 7, as amended, agreed to.
Sections 8 to 13 agreed to.
Schedule 1 agreed to.
Section 14 agreed to.
Schedule 2 agreed to.
Sections 15 and 16 agreed to.
Section 17—Short title and commencement
Item 2 concerns consideration of the Control of Dogs (Scotland) Bill at stage 2. I welcome to the committee Christine Grahame MSP; Claire Tosh, solicitor to the Scottish Parliament; David Cullum, the clerk team leader of the non-Executive bills unit; Kenny MacAskill MSP, the Cabinet Secretary for Justice; Philip Lamont, the head of branch of the criminal law and licensing division of the justice directorate; and Anne-Louise House, of the Scottish Government legal directorate.
Section 1—Serving of dog control notice
The Cabinet Secretary for Justice (Kenny MacAskill)
These are technical amendments, and we support them.
Amendment 1 agreed to.
Amendment 11 not moved.
Amendments 2 and 3 moved—[Christine Grahame]—and agreed to.
David McLetchie (Edinburgh Pentlands) (Con)
The purpose of amendment 10 is to bring the provisions of this bill into line with the Animal Health and Welfare (Scotland) Act 2006 and to deal with the concern that was raised by the British Veterinary Association during our stage 1 consideration of the bill, and in the subsequent stage 1 debate, as was exemplified in an exchange between the member in charge, Christine Grahame, and Mike Rumbles.
The amendment seeks to narrow the criterion of apprehensiveness so that it relates only to the safety of a protected animal as defined in the 2006 act, rather than any animal, as stated in section 1(4)(c) of the bill. The definition of “protected animal” in the 2006 act is an animal that is
“of a kind which is commonly domesticated in the British Islands”,
or is
“under the control of man on a permanent or temporary basis”
or is
“not living in a wild state”.
In the bill, an individual’s apprehensiveness about the safety of a mouse, rat or other rodent could give rise to circumstances in which a dog control notice might be served, if the dog in question was simply expressing its natural behaviour in the context of its proximity to such a rodent. I am quite sure that Christine Grahame does not intend that to be the case, and would no doubt point to the fact that her bill requires a dual test to be satisfied before grounds for serving a notice are established, namely that the dog is not being kept under control and that the behaviour must give rise to reasonable apprehensiveness.
That brings us to an issue that crops up often in the consideration of legislation in this Parliament, which is whether we should put a qualification in a bill to deal with a specific concern or point or simply rely on a general test of reasonableness and leave it to the good sense and discretion of authorised officers and, ultimately, the courts to deal with the matter in a sensible manner.
Normally, I would be in favour of laws based on general principles and on leaving matters ultimately to the judgment of the courts. However, in this case, given the history surrounding animal welfare legislation in the Parliament and the concerns that have been expressed by responsible bodies that support the bill, such as the British Veterinary Association, the Scottish Countryside Alliance and the Scottish Rural Property and Business Association—all of which have considerable experience of these matters—the amendment represents a sensible and modest change to the bill. I commend it to members of the committee.
I move amendment 10.
I understand, from discussions with Scottish Government officials, that it would be helpful for local authorities to have more time to prepare for the implementation of the bill should it have a successful passage through the Parliament. It is important that preliminary work, including training, is given adequate time before the provisions commence. Amendment 8 gives a further three months for that and brings the bill into force nine months after it receives royal assent.
I move amendment 8.
I have listened with interest to the member in charge, Christine Grahame, and the cabinet secretary. I defer to Ms Grahame if I am wrong, but I thought that swans and badgers were already protected by legislation in this country, so I am not entirely sure that the example that she used in arguing against my point is apposite. Be that as it may—the detail can be considered further at stage 3.
It is important to recognise that many people in our rural communities who are in charge of working dogs are responsible and control them. However, there are times that, when faced with a wild animal, such dogs, like any other dog, will act in a perfectly natural manner. It is a matter for debate whether at that point the dog is in or out of control but, nevertheless, it is a reasonable concern that certain members of the public might take an overzealous attitude and pursue what might be seen as a vindictive approach to people who are simply going about their daily business in a responsible manner.
That is the motivation behind the amendment that the various organisations have invited us to consider. We must ensure that we are dealing not with the whole animal population but with animals that are protected, a distinction that the Parliament made in the Animal Health and Welfare (Scotland) Act 2006 and which it would seem sensible for the committee to follow in this bill. As a result, I press amendment 10.
There will be a division.
For
McLetchie, David (Edinburgh Pentlands) (Con)
Against
Allan, Alasdair (Western Isles) (SNP)
Doris, Bob (Glasgow) (SNP)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
Mulligan, Mary (Linlithgow) (Lab)
Tolson, Jim (Dunfermline West) (LD)
Wilson, John (Central Scotland) (SNP)
The Scottish Government welcomes the amendments, which address matters that were raised appropriately by the Subordinate Legislation Committee.
Amendment 6 agreed to.
Amendment 7 moved—[Christine Grahame]—and agreed to.
Amendment 8, in the name of Christine Grahame, is in a group on its own.
As Christine Grahame says, amendment 8 seeks to alter from six months to nine months the period between the bill receiving royal assent and its provisions coming into force. In its stage 1 report, the committee recommended that appropriate training must be made available by local authorities for those officers who will take on new responsibilities under the bill. In our view, amendment 8 will assist local authorities in that regard by providing them with additional time to develop their training strategies, identify and deliver appropriate training for their staff and undertake other preliminary work to ensure that they are adequately prepared and ready for implementation of the bill. We therefore support amendment 8.
Amendment 8 agreed to.
Section 17, as amended, agreed to.
Long title agreed to.
That ends stage 2 consideration of the bill. I suspend the meeting to allow the panel of witnesses to be set up.
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Meeting suspended.
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On resuming—