Rural Affairs and Environment Committee, 25 Jun 2008

Meeting date: Wednesday, June 25, 2008

Official Report 252KB pdf

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Subordinate Legislation

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Licensing of Animal Dealers (Young Cats and Dogs) (Scotland) Regulations 2008 (Draft)

Welcome to the committee's 13th meeting in 2008, and our final meeting of the term. I remind everyone present to switch off the wireless element of their mobile phones and pagers, so that the sound system is not interrupted by buzzings and vibrations. We have received apologies from Des McNulty. I understand that this morning there are traffic difficulties in Edinburgh that may be holding up other members.

Agenda item 1 is consideration of the draft Licensing of Animal Dealers (Young Cats and Dogs) (Scotland) Regulations 2008, which are subject to the affirmative procedure. We have with us the Cabinet Secretary for Rural Affairs and the Environment and his officials. I welcome Richard Lochhead, who is accompanied by Ian Strachan, head of the animal welfare branch of the Scottish Government's rural directorate, and Kirsten Simonnet-Lefevre, a solicitor in the rural affairs division of the Scottish Government's legal directorate. Christine Grahame, the member who initiated the regulations, wanted to be here. However, she is the convener of the Health and Sport Committee, which is meeting at Murrayfield, so her ability to pop in even for five minutes is non-existent. In other circumstances, she would have been here.

Members have copies of the draft regulations. The Subordinate Legislation Committee's report on the regulations has also been circulated. Under item 1, members are allowed to discuss and to ask questions about the regulations. We will then move to a formal debate on the regulations, which we hope will be shortened considerably by the previous discussion. Officials may contribute at this stage but not during the formal debate. I invite the cabinet secretary to make a brief opening statement.

Thank you, convener. It is a pleasure to be here.

The regulations aim to control the trade in puppies and kittens. There has been considerable concern about the way in which those animals have been reared and transported, especially—but not exclusively—those that have been reared in and transported from Ireland. Unfortunately, there is nothing that we can do about how the animals are reared outwith Scotland, but we can take steps to ensure that their welfare is protected once they arrive in Scotland.

The regulations will require anyone who resells more than two puppies and kittens under 84 days old over a 12-month period to obtain a licence from the local authority. Any dealer who does not have premises in Scotland can obtain a licence from the City of Edinburgh Council. A licence will remain in force for a maximum of three years. An exception will be made for people who hold a pet shop licence.

Licensed dealers will be able to sell puppies and kittens only to other licensed dealers, licensed pet shops or licensed dog-rearing establishments. In order to sell directly to members of the public, dealers will have to obtain a pet shop licence or dog-rearing licence.

Many of the animals that are born in puppy farms are incorrectly weaned and are susceptible to every infection around. Many of them have behavioural problems, because they have not been given proper care and attention. Licence holders with premises in Scotland who take possession of such young animals will have to keep them separate from all other animals for 10 days before they may be resold. That is very important, as it allows time for the manifestation of any behavioural problems or health issues—and, if necessary, for treatment by a veterinary surgeon.

Provision is made in the regulations for the licensing authority to attach conditions to all the licences, many of which will help to secure the welfare of the animals. For example, it will be an offence for licensed animal dealers to sell an animal of under 12 weeks and to transport one of under eight weeks, unless it is accompanied by its mother. All animals must be examined by a veterinary surgeon in the first 24 hours of their 10-day separation period, and they must be treated for any health problems. That will address the concerns of the Scottish Society for the Prevention of Cruelty to Animals and other organisations that have heard complaints from members of the public about the health problems of puppies and kittens that have been sold by dealers.

Other conditions will require pet dealers to give each animal a unique identification number, to maintain records and to provide validation of their licensed state when they conduct sales. Those licence conditions should ensure that the young animals being sold are healthier and happier. In the event that they are not, a dealer can be held accountable.

Enforcement of the regulations is for local authorities. Anyone failing to comply with the provisions will be liable to a fine of up to £2,500 and/or up to three months' imprisonment.

I do not propose to refer to all the detail of the legislation, but I will do my best to answer any questions relating to it.

Thank you. This item should principally be for questions of clarification. Argumentative questions are probably best dealt with as part of the debate.

Minister, I draw your attention to the comments that were made by the Subordinate Legislation Committee. Are you happy about the criminal liability issue, as covered in paragraph 8 of its report? It says:

"the meaning and effect of the offence provisions as a whole could be clearer."

The Subordinate Legislation Committee also noted that a "reasonable excuse" defence is acceptable for the offence of making a false statement. Are you setting a precedent in law, whereby a reasonable excuse has now become an acceptable defence, which it was not before?

After you have addressed those points, could you also tell us about the licensing scheme? By your own admission, nothing can be done about animals that are reared outwith Scotland. I refer to paragraph 13 of the Subordinate Legislation Committee's report. I appreciate and agree with the sentiment behind the regulations but, if it is not possible to inspect premises outwith Scotland or to do anything about them, what can you do? The Subordinate Legislation Committee states that the drafting of the regulations

"appears to be defective in so far as it purports to provide for a licensing regime involving inspection"

of persons whose premises are outside Scotland. The regulations imply that such premises will be inspected as well.

I will address the latter point, before handing over to Kirsten Simonnet-Lefevre from the legal directorate, who will address your first point.

It is clear that we do not propose to apply the regulations to premises outside Scotland; the regulations make it clear that the provisions apply to premises in Scotland, although people who do not have premises in Scotland still have to apply for a licence if they wish to trade in Scotland. We believe that the position is made clear elsewhere in the regulations, over and above the provision to which the Subordinate Legislation Committee referred, so we are content on that point.

If you do not mind, I will hand over to our legal adviser to address your first point.

We considered that the drafting of the offence provisions was clear, because we stated in each case where an offence could take place. To avoid repetition and to keep the regulations concise, we put all the penalties in regulation 17, which deals with penalties for different levels of offence. We do not necessarily agree that the offences are unclear.

As for the reasonable excuse defence, we had to weigh up which penalty was appropriate to each offence. The general guidance that we follow is to use strict liability only for more serious offences. In the regulations, the more serious offence is that of obstructing an inspector or someone who is assisting an inspector. We kept that offence subject to strict liability and decided that it was appropriate to use the qualification of having a reasonable excuse for the other offences, because a person could be acting in error or could have received and passed on in good faith incorrect information about animals, for example.

I am interested in the reasonable excuse concept. Are we establishing a new concept in law? As the cabinet secretary is responsible for other agricultural regulation, I hope that a reasonable excuse will become acceptable for farmers who do not fill in a subsidy claim form accurately, for example. The concept of a reasonable excuse is new to me.

I do not think that the concept is new overall; it has been used before.

The offence in question is knowingly making a false statement. What might be a reasonable excuse for knowingly lying? If a person knows that they are making a false statement, what might be an excuse for that?

I cannot think of an example off the top of my head.

If the offence was making a false statement, one could see how someone might err because they did not realise that a statement was false. However, when the offence is knowingly making a false statement, what does "reasonable excuse" mean? I am curious about why it was thought appropriate to put that in the provisions.

The defence of reasonable excuse applies to all the offences and not just to the offence of making a false statement, on which I agree with you.

The offence is knowingly making a false statement.

I agree with you—I can think of no reasonable excuse for knowingly making a false statement. However, the reasonable excuse defence applies to all the offences. For example, one provision is that it is an offence to have puppies or kittens on the premises without their mother if they are under eight weeks old, but a reasonable excuse for not having the mother there would be that she had died.

Thank you, but that does not answer the question. My question is what would be a reasonable excuse for knowingly lying. I understand the concept of a reasonable excuse when inspectors turn up the day after the parent has died, for example, but what could possibly be a reasonable excuse for lying—that someone does not want to be caught?

The courts would decide whether somebody had a reasonable excuse for deliberately making a false statement. I agree that such cases would be few; I cannot think offhand of such a case, unless a gun was being held to somebody's head to force them to make a false statement.

Convener, I take your point, which is valid. Two issues are involved. Ian Strachan said that the reasonable excuse defence applies to all offences in all circumstances, so it does not apply only to the offence of knowingly giving wrong information.

We do not raise the point in relation to other provisions, because reasonableness is a well-known concept in law. However, I do not know whether reasonableness in law applies to lying deliberately. I cannot imagine a court thinking that someone has a reasonable excuse for perjury. Why is that defence there for the specific offence of knowingly making a false statement?

It is there for the reasons that we have outlined, which apply to the rest of the provisions.

You might be aware of a company that recently opened in London, which rents dogs to individuals and which is proposing to open an office in Scotland. The regulations deal with the sale and resale of dogs, but if an individual or dealer rents dogs, does the legislation cover them, or is there a loophole?

My understanding is that the regulations refer to trading, as in buying and selling.

The legislation does not cover the renting of dogs. I am aware of the flexpetz scheme that you are talking about. The regulations apply only to the buying and selling of dogs and cats under 84 days old. The company to which you refer rents out adult dogs, so the regulations do not cover it. In fact, no regulations cover that particular activity, although the general provisions of part 2 of the Animal Health and Welfare (Scotland) Act 2006 would apply—particularly the provisions on the duty of care.

In that case, I urge the cabinet secretary to consider bringing forward legislation on the renting of dogs.

If that is the committee's view at any stage, it can bring it to my attention.

Why is it deemed necessary to allow the sheriff power to override mandatory licensing conditions?

That is a policy issue. From memory, I think that we want the sheriff to be able to change all the conditions. This is a new scheme, and there are new situations that need to be clarified. We have no precedent for a scheme of this nature.

So any sheriff at any time could choose to change what we have laid down as the appropriate licensing conditions?

If that is necessary.

I presume that that will then become the precedent.

Yes.

Has any thought been given to what would happen if cases go to court and changes are made to the licensing conditions beyond anything that has been envisaged in the regulations? We are putting into place legislation that says that the Parliament has a view on the licensing conditions for dealers in a particular category of animals. We make that view clear and we legislate for it, but here we are saying that any sheriff can change it at any point.

Yes.

Is that what we are saying?

Yes.

I presume that you can envisage such a situation. In what circumstances would a sheriff change the conditions? There seems to be an expectation in the regulations that the sheriff will exercise their power to change them. Can you envisage circumstances in which you think that the conditions might be inadequate and in which sheriffs could alter them to improve them?

I expect that a sheriff would alter the licensing conditions only if doing so was required by a situation that is not already covered by the conditions that are listed in the regulations.

Do you have, in your head, any hypothetical example where that might be appropriate?

No.

None?

No.

Have you laid down any conditions that you would definitely not want a sheriff to alter?

The sheriff will have to work within the context of the regulations, but he would be able to alter the conditions of licences issued under the regulations. However, it is clearly difficult to predict what view a sheriff would take in enforcing the regulations.

You have spelled out some of the provisions in the regulations—for example, there must be a veterinary inspection within 24 hours of the start of the separation period, and animals under eight weeks must not be separated from their mother—so I presume that they are an advance on existing law and that there is a legal vacuum at present in those areas. Can you or your officials set out where the current gaps in the law are? In what ways does the current law allow animals to be mistreated?

The regulations arose from Christine Grahame's proposed member's bill, which attracted cross-party support. At the time, more than 40 MSPs from across the then six parliamentary parties signed up for her bill because of the lack of regulation of the trade in puppies and kittens, particularly those that come here from outwith Scotland and are sold on. The loophole relates to those who buy young puppies and kittens with a view to selling them on. The view is that the animal health and welfare aspects of that trade are such that animals suffer.

Do you have any examples?

Often, people are left with young puppies and kittens that have been sold to them and which then become ill or die because the animals had received no veterinary care. That situation is not regulated at present, but it would be regulated under the regulations. People buy young puppies or kittens having looked at adverts in newspapers and phoned a mobile number. A dealer may have several mobile numbers; they change the mobile number each time they go through the selling process. They might go over to Ireland, bring back a litter, get a new mobile number and put that in the newspaper. People then buy an animal from the litter that becomes ill and perhaps dies. Clearly, animal welfare issues are involved, as well as the fact that the purchaser has no way of tracing the trader and holding them to account. That is the gap in the law. Currently, breeding establishments, pet shops and so on are licensed, but the trading aspect is not.

So this is not just an animal welfare issue; it is also about protecting those who purchase.

The purchaser will be protected as well.

The minister has obviously brought forward the regulations in good faith and is attempting to fulfil a decision of Parliament in trying to make progress on them. However, given that the Subordinate Legislation Committee has raised some important issues of principle, and given that the minister has probably detected some uncertainty among committee members about the proposals, is there any particular reason why the regulations must be progressed right now? Would any damage be done if the regulations were looked at a bit more closely to try to address the points of concern and then brought back to the committee? Is the timescale driven by anything in particular, other than the desire to get the regulations approved and implemented?

Clearly, we believe that there is public demand, and a parliamentary appetite, to get the regulations through. However, we will take on board the committee's views. If you have serious concerns, we will have to go away and reflect on that. On the timescale, we hope to have the regulations in place by November.

I have some serious concerns about the regulations because of the report from the Subordinate Legislation Committee and some of the explanations that have been given, particularly in relation to the reasonable excuse provision, which has been highlighted. I am still not clear why that must apply to all offences under the regulations. I am not comfortable that a reasonable excuse defence is suitable in the context of someone knowingly telling a lie; I am uncomfortable with seeing such a defence in legislation that we pass as a Parliament. I am not clear why the minister could not amend the regulations to include a provision that said something like "that defence applies to all offences bar this one". I think that it sets a dangerous legal precedent if we say that, as a Parliament, we accept that there may be a reasonable excuse for telling a lie or knowingly giving a false statement. I certainly want that provision to be amended before we take a position on the regulations.

Right. Cabinet secretary, before we move to agenda item 2, you might want to reflect on some of the concerns that have been raised. The timescale is such that we need to report on the regulations by 1 September, which means that the committee must make a decision today one way or another—that is, if the motion is moved.

Can I ask a procedural point about that?

Yes.

Is it necessary for the motion that is on the agenda to be moved? If it were not moved, would that get around the 1 September deadline?

The motion does not have to be moved.

Would that relieve us of the 1 September deadline?

Yes, but a new instrument would need to be drafted.

Could the regulations be brought back to the committee in September?

A new instrument would have to be laid in September.

I am happy to take the regulations away and address the concerns that have been raised over the phrase "reasonable excuse", if the committee would find that helpful. The timetable is flexible to a degree; this is not like other pieces of legislation. If the committee would find it helpful, I will not move the motion and we will address the legal considerations.

That might be helpful in the circumstances. I suggest that your legal team think about some of the legal aspects and take on board the issues that were raised in the Subordinate Legislation Committee's report.

We are happy to do that.

They are reasonable—if I may use that term—questions to ask.

Agenda item 2 is the formal debate on the motion. This is the point at which officials cannot participate. I invite the cabinet secretary to move the motion—or otherwise.

I will not move the motion, with a view to addressing the concerns that members have raised. The purpose of the parliamentary process is for committees to highlight such concerns and for ministers to respond.

I thank the cabinet secretary for listening to members, taking on board their concerns and responding in that way. I also thank him and his officials for their attendance.

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National Scenic Areas (Scotland) Regulations 2008 (SSI 2008/202)<br />Town and Country Planning (General Permitted Development) (Scotland) Amendment Order 2008 (SSI 2008/203)

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Register of Sites of Special Scientific Interest (Scotland) Regulations 2008 <br />(SSI 2008/221)<br />Registration of Fish Farming and Shellfish Farming Businesses Amendment (Scotland) Order 2008 (SSI 2008/222)

We have four negative instruments to consider under agenda item 3. Members will be glad to know that no concerns have been raised about any of the instruments and no motions to annul have been lodged. Does anybody have any comments to make on any of them?

No.

Do we agree not to make any recommendations in relation to the four instruments?

Members indicated agreement.