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Item 3 is to take oral evidence on the Control of Dogs (Scotland) Bill. I welcome our first panel of witnesses, who are Kenny MacAskill MSP, Cabinet Secretary for Justice; and, from the criminal law and licensing division of the Scottish Government, Philip Lamont, head of branch, and Jim Wilson, policy officer. I invite the cabinet secretary to make brief opening remarks.
We are generally supportive of the principles of the bill, which was first proposed by Alex Neil and has been taken on by Christine Grahame. It seems to us that it will be beneficial and will target some lacunae in the law, and that it is a proportionate response to a problem that is faced in many communities, including in my constituency.
Thank you for those brief remarks. The committee always welcomes such brevity, which allows us to get on to questions. I will open up by following on from oral evidence at last week's meeting. The National Dog Warden Association gave evidence about its role from 9 to 5 and the police's role out of hours and about the cost implications of budget transfer. What discussions are you aware of between the Association of Chief Police Officers in Scotland, the Convention of Scottish Local Authorities and the Scottish Government on costs and the transfer of budgets?
I have asked officials to set up a meeting in response to communications that we have had, particularly from Strathclyde Police and ACPOS. We seek to engage in meetings with ACPOS and COSLA on this tripartite matter to work out what is best for our communities and who is best placed to deal with matters. Meetings are being set up to ensure that discussions commence.
Are any meetings happening at this time?
I am not aware that they have started—my officials may have other information—but I am aware that the meetings are being set up, although that may come through a separate department. I have been lobbied by Strathclyde Police on the issue, which is a legitimate one to raise. We are making arrangements to engage with all parties and get round the table to work out what is best for our communities. It is a matter of bringing COSLA and ACPOS to the table.
Can the officials give us an update? I am pressing you on this because the police were unable to come to the meeting and we have not had any evidence from COSLA. We know that police time and costs are an issue.
Strathclyde Police wrote to the cabinet secretary a few weeks ago raising the issue. A meeting is due to be set up and will take place, I hope, before the end of the year. It is just an initial meeting to find out more about where the police are coming from. Obviously, it is critical that both ACPOS and COSLA agree with what is decided, especially for the financing. The meeting, which will be between officials, will discuss that as an initial stage.
An issue that has been raised by people who largely support the bill's aims is the definition of "out of control". Does the Government have a view on that issue?
We agree with the bill's definition. Section 1(3) has a two-part test for whether a dog is deemed to be out of control. It states:
The Government's reading is that the test has two parts, which must both be met.
It is a two-part test both parts of which must be met.
Good morning, cabinet secretary. Do you have concerns or views about how dog control notices will be enforced?
The cost implications will depend largely on the use that local authorities choose to make of the system. The financial memorandum acknowledges a margin of uncertainty, given that we do not know what the precise numbers will be. The memorandum says that the number of notices will probably be 1,100. If the number went beyond that, discussions about funding would have to be held under the concordat between local and national Government. However, the costs should not be significant. You have taken evidence on that.
We will pursue the costs issue, but my question was more about the practical measures that are being requested. I understand that only one person will be needed to investigate the situation and issue a dog control notice, but I am a little more concerned about how to ensure that that is enforced. We all want the dog that is out of control to be put under control, so that it does not cause problems. How will notices be enforced?
I agree with the witnesses last week who said that notices will be an effective tool in their overall armoury to deal with dogs. We hope that even just the power for dog wardens to issue such notices should act as a deterrent and that not too many notices will need to be issued. As a result, the problems that might be associated with enforcement or the burden of enforcement might not be too great.
I agree with the hope that the power will act as a deterrent and that, if a DCN needs to be issued, it will provide a direction of travel for how to behave in the future. Unfortunately, some of the people who have dogs that have caused problems are not the most responsive to such measures. If they did not respond to notices—if they just ignored them and carried on as before—what action would be taken?
The bill will not establish, and we would not support, an appeal or court mechanism. We will give powers to local authorities, which will have to consider the impact of a notice on somebody's tenancy if they are a local authority tenant and on how their behaviour is viewed—the situation could provide grounds and meet criteria for pursuing an antisocial behaviour order. The bill does not specify a sanction, but those who are being given powers will have other tools in their armoury when considering breaches. That will be for local authorities to deal with.
Do you accept that certainty about the process is needed? As the ultimate sanction is destroying the dog, the measures before that point is reached must be sufficient.
Section 5 sets out the formal breach procedure. We hope that the bill will act as a good deterrent and that the procedures in it will not have to be used. That will take us so far. However, as you said, in some cases that will not work, so section 5 covers failure to comply with a dog control notice.
The bill would require authorities to appoint authorised officers. The committee heard in evidence last week that some local authorities in Scotland do not have dog wardens, but it is suggested that the bill would have no impact on authorities' resources. Does the cabinet secretary think that there would be an impact on local authorities' resources, and if so, would the Scottish Government be prepared to allocate funding so that the approach could be taken forward?
I understand that the committee has heard from local authorities. We will listen with interest to what authorities say about how they would pursue the issue. Rural and urban authorities might operate in different ways, and we are interested in hearing about what authorities propose to do.
I appreciate that you might have to enter into negotiations with local authorities. Do you accept that it is clear that, if additional resources are required, there will be financial implications, whether for local authorities or for the Scottish Government?
That is clearly the case. I know from experience in my constituency that the antisocial behaviour unit in the east Edinburgh area office has to deal with dogs. It would be for the City of Edinburgh Council to decide how to deal with the matter. We would have to discuss with COSLA any difficulties to do with increased cost or resource implications, and we would be happy to do so.
The bill provides for the creation of a national database of dog control notices, which would also have financial implications. I understand that although there is a preference for having such a database, there is no requirement in the bill to create one.
We do not see the need for a national database, which would have a cost. Local authorities will be required to keep records, and the benefits of a national database that would be built up from data that were kept locally are not clear. The bill would not require a national database to be created and we remain to be convinced that one should be established. Much of the information would be collected by local authorities. Equally, I am aware that the police keep their own records of dogs, just as they possess records of where they believe weapons may be stored. I do not understand what benefit a national database would have when the information is collected locally but, if you can tell us why we need one, who would access it and for what purpose they would do so, we are open to persuasion.
There are many instances in which bodies such as local authorities and health boards collect information on the Scottish Government's behalf. My concern is that different local authorities may collect the information in different ways. Is there any way round that, because it would be hard to get a good comparative picture in Scotland if the information was collected in different ways?
To some extent, it does not matter what information is collected because there is only so much information that we can collect regarding a dangerous dog. I am not sure what other criteria would be specified in such a database.
At this stage of discussions, we are here to question the points in the bill and put them to the cabinet secretary, regardless of our politics. I appreciate the answers that he has given us this morning.
There has been some discussion about the benefits of a database of people who are not suitable to have dogs or who use them almost as offensive weapons. It was suggested last week that a database could keep a check on people who should not have dogs owning them for that purpose.
I did not dismiss outright the idea of sharing information.
I must have misunderstood you.
I said that I was not convinced of the benefit of a national database. The sharing of information seems to me to be a commonsense no-brainer. After all, not only organisations such as housing associations but professionals such as health visitors face dogs. I know from 20 years' legal experience that there is concern about the safety of sheriff officers who have to go to the door to serve interim interdicts in domestic violence cases, for example. Mr McLetchie might also be aware of such instances. In my experience, a sheriff officer would usually be given support by the police if they were going to a house where they knew that there would be some difficulty, some danger or perhaps even a ferocious dog.
Is such information shared now and, if so, how?
That is a matter for the various organisations to comment on. I am not aware of any difficulties, in that no organisation has lobbied me to say that it is not aware of such information. I assume that that is largely down to good custom and practice—which I have experienced myself in the east Edinburgh area office, where the City of Edinburgh Council brings together relevant departments. You would require to ask others about that point; I do not think that it is in the Government's domain.
In response to Mr Tolson's questions, you have told us that you support the principle of sharing information, even if you do not support having a database. Let me go to the next stage: what sort of guidance should there be and what discussions could and should take place to ensure that information is shared among the police, housing associations, posties and others? How would information be collected in a given area? What discussions should be taking place to enable that commonsense sharing of information to take place for the protection of people in communities? How could we bring that about?
Section 4(4) provides a power for the Scottish ministers to make an order permitting the local authority
Christine Grahame may come in on this point—but on this point only.
The officials have already addressed some points about section 4. Section 4(3) contains a duty on local authorities
Let me explore the issue of corroboration in relation to the issuing of dog control notices and prosecution for their breach. If someone is prosecuted for breach of a dog control notice, would it be a defence to that action to challenge the validity of the original notice?
That is a good question. There is a power in section 3 for someone to appeal against the issuing of a dog control notice in the first place. It could be argued that, if that person does not use that power, and then breaches the dog control notice and is prosecuted, they have in effect admitted that the dog control notice has been issued, as they have not appealed against it. That is a slightly tortuous argument, I accept, and it perhaps needs to be examined for the sake of clarity.
It is a fundamental point in relation to the evidence that we got previously from the dog wardens. They say that we need full corroboration of the background giving rise to the issue of a dog control notice, as that might get tested in a subsequent criminal prosecution for breach of that notice. All that has a bearing on cost. The member in charge is in effect saying that the issuing of the notice is simply an administrative act, that it would therefore be sufficient for there to be only one authorised officer to issue the notice, and that corroboration is relevant only in the context of a breach of a dog control notice and subsequent prosecution. Given what you have just described, would it be a good idea for the bill to state expressly that, when a dog control notice has not been appealed within the requisite appeal period, it is in effect final and its validity cannot be challenged in a subsequent criminal prosecution? That would remove the doubt that you mentioned, would it not?
On the face of it, that seems like a good idea.
What is the period within which a dog control notice, once issued, can be the subject of an appeal? I am afraid that I cannot find the relevant reference in the bill.
Sections 3 and 7 deal with someone who wants to appeal against a dog control notice or have it discharged. When I first read section 3, it was not entirely clear to me, but it became clearer after further investigation. The section relates to someone who wants to appeal against the issuing of a dog control notice in the first instance. It talks about a person P appealing
What happens if a notice is served by a single authorised officer and then a further serious incident that might found a criminal prosecution occurs within the appeal period? Would we not have a kind of interval period in which a prosecution would be based on the breach of a dog control notice that might be the subject of an appeal and thereby nullified? Is that right?
You might have a point. Given how the provisions work together, there might be ambiguity about the time periods. That might have to be considered, with the aim of making clear the exact process that is to be followed.
On the other side of the coin, suppose that someone is being prosecuted for the breach of a dog control notice and the 21-day period has expired—so the notice is final—but the person is arguing for a discharge because they maintain that the notice probably should never have been issued in the first place and they have a very well-behaved dog and so on. Would the fact that someone has applied for a discharge undermine the prospects of a successful prosecution?
Less so, because the person has not used the 21 days to appeal against the issuing of the dog control notice in the first place. If an appeal is successful, it is as if the notice was never in place. However, if someone asks for a dog control notice to be discharged, they are asking for it no longer to be in place from a set date, although it would have been in place between dates X and Y. I argue that, if the alleged offence took place between those dates, that would be sufficient for prosecution, because the person did not use the opportunity to appeal against the notice in the first place and, in effect, accepted it, even though they might have been unhappy with it, as you say.
I think that I can see the logic of that. To return to the first scenario, on the face of it, the issue of the validity of notices in periods when they are under appeal and whether the validity of the notice can be a defence in a criminal prosecution lends credence to the suggestion by the dog wardens who gave evidence to us that a higher level of corroboration of the original incident and circumstances that gave rise to the issuing of the notice is required than might at first be assumed. Is that fair?
That is a fair comment.
We can explore that with the member in charge of the bill. Thank you very much for that.
I think I understood the cabinet secretary to indicate that the authorised person could be a variety of individuals doing a variety of jobs. Would it not be sensible for local authorities across Scotland to take a consistent approach to who the authorised person might be, or to the category of person who would qualify as an authorised person under the bill?
Section 1(7) states:
In relation to Mr McLetchie's questions, if matters were to escalate to the issuing of a dog control notice or if, ultimately, a case went to court, would a consistent approach not be expected? Is there not, therefore, a need for local authorities to have trained dog wardens to carry out the job of authorised officer? My concern is that I would have thought that, at the moment, very few people would fit the definition in the bill. Is that an element that the Scottish Government has considered, not only in light of the possible prosecution of individuals, but from the point of view of the cost of implementing the bill?
No. The points that Mr McLetchie made are, fundamentally, matters for the Crown. I would be extremely surprised if the Crown would mark a complaint if it did not feel that it had verification that the requisite time period for someone to make a challenge had elapsed. It is clear that there are matters that must be considered to ensure that if there are to be prosecutions, they can be sustained. It is legitimate for the committee to check such matters. Doubtless, it will ask the member in charge of the bill and perhaps it should seek further information from the Crown about what would satisfy it. As Philip Lamont said, methods for dealing with such matters already exist—they are used, for example, to deal with a variety of road traffic offences.
Perhaps it is a matter for local authorities, but the fact that section 1 of the bill specifies that the authorised officer must be someone who has the necessary knowledge and expertise suggests to me that, regardless of geography—which might dictate the numbers of such persons—or any other factor, every local authority in Scotland will have to have persons who conform to that designation. Surely that implies that there is a cost associated with that element of the bill.
Section 1(6) says:
I will be brief because I wanted to talk about the national database and a lot of that has been covered already. Before we talk about that, do you support the idea of a register of disqualified persons?
That can only be of assistance. We live in a world where there is dog fighting—criminal proceedings are pending in a case in my constituency—and there are people who keep animals almost as weapons and implements. I see merit in the idea of a register. We are aware that the police already do some informal tracking, but it might be beneficial to ensure wider access to such information.
Such a register could be an extra tool to help various agencies to deal with people who might be predisposed to criminal or antisocial behaviour. We would want such information to be shared among the relevant agencies. Perhaps that is particularly true in urban settings in which local authorities are close to each other and there is a large population. For example, people move from North Lanarkshire to South Lanarkshire to Glasgow to Renfrewshire and the population in some places is transient, so we would want the relevant information to be shared.
Section 4(4) confers powers to share information, and we are genuinely open to that because we can see merit in it. I know that dog fighting is not a pastime that people just bump into; a lot of it seems to relate to organised criminal gangs and is almost a commercial enterprise with gambling attached to it. So there is merit in the information being made available and the bill contains order-making powers to enable that.
I am concerned not just about dog fighting, but the petty criminal who is a nuisance within the housing scheme, or the known drug dealer who is up a close with a powerful dog so that he can intimidate those around him. I would like to see such people on a register of disqualified persons once the system has been put in place.
It does not have to be Government led. We have order-making powers and we are happy to use them where that would be proportionate, supportive and beneficial. There is sound merit in achieving things simply by sharing existing information, rather than by creating an additional database that might cause fear and alarm to some people.
If an individual was keeping a dog despite being on a register of disqualified persons, and their tenancy with a registered social landlord was in doubt, would you let that fact be part of the criteria for moving towards eviction in certain cases? I know that that extends the issue in a different direction, but there could be overlap.
That is a matter for my colleagues in the housing department to comment on. Factors such as behaviour would be involved. Christine Grahame mentioned in passing that information should be available to health visitors and RSLs. Such matters must be taken into account, and the fact that an individual is prepared to keep a dog that can be viewed as dangerous can be a relevant factor for those who are in charge of maintaining some semblance of order in the community to consider.
Concerns were raised in written evidence to the committee and by witnesses at last week's meeting that imposing measures such as microchipping, dog training and so on may have a disproportionate effect on those on low incomes. How can we deal with that issue? Will the bill mean, in effect, that unless someone can prove that they have an adequate income, they will not be able to keep a dog in case it becomes out of control?
That is for others to comment on. Our general view is that it is a matter of balance. Dogs are not necessarily cheap to run. We do not wish to be disproportionate, but certain types of dogs can cause significant danger, damage and even death in our communities, and we must remember the rights of others. That takes us back to the central issue that the committee is considering: how we deal with the issue in a proportionate way.
I agree, cabinet secretary—we must consider how such matters can be dealt with proportionately. In some cases, as members have mentioned, dogs are kept solely for the purpose of raising alarm and concern among other residents in a community. However, a witness at our meeting last week referred to a situation in which a person became alarmed and fearful because a German shepherd dog approached her in a park, and we heard about another situation in which west Highland terriers were causing alarm to some residents and children in a particular area. How would you deal with the fear and alarm that is caused by small dogs? I understand that the concern of the bill and of many members of the committee is to try to do away with situations in which people keep potentially dangerous dogs for the purpose of fear and intimidation, not to create a situation in which small family pets nip at the heels of children or adults and are then registered as dangerous dogs.
That is why it is correct that we have included a two-part test in the bill. It is not simply about the dog
I have a couple of questions about costs and resources.
At the moment, COSLA is responsible. Negotiations are on-going on the broader matters that you raise, and the chief constable of Strathclyde has raised the issue of the current responsibilities of the police for dealing with strays. The consequences of the bill, however, are a matter for COSLA.
But if someone did not comply with the notice, that would become a police matter.
A breach would be referred to the Crown.
To what extent would that increase police work? I am trying to get an idea of the extent of the cost impact, which the Scottish Government has already said has caused some concern in its discussions with COSLA. We have not had any evidence from the police, but the expectation is that we could end up with an increased number of stray dogs on the streets, which would become the responsibility of the police, and an increase in prosecutions, as a result of people who are unable to comply with the notices.
I will ask Philip Lamont to comment on that. Based on my experience, however, I would say that any breach would go directly to the procurator fiscal's office.
There might be some small involvement of the police, as the report from the dog warden might go to the police, who would then report it to the procurator fiscal. However, it might be more of an administrative issue. It depends on whether the authorised officers are able to report matters directly to the Crown—they would have to have certain powers to enable them to do so.
As members have no other questions, I thank the cabinet secretary and his officials for attending.
I do and I shall, convener. Knowing what it is like to be in your place, I will be as brief as possible.
Thank you.
You will know what has been said in our previous evidence taking about the idea of a national database. What is the purpose of such a database?
I am content with the powers under section 8 to establish a Scottish dog control database by way of statutory instrument to provide for the
So you are satisfied that the bill's provisions for local authorities to collect information do not contradict or complicate the argument that you just made about the potential for a national database.
I used the expression "suck it and see" because there is a duty on local authorities to co-operate with one another to exchange information. Somebody may move with a dog, for example, so there are opportunities for local authorities to co-operate in that regard. Local authorities will have to co-operate on a range of issues relating to the control of dogs and to the Dogs Act 1906 and the Dangerous Dogs Act 1991.
You gave us a written response on issues that have been raised, but have you considered in detail the Subordinate Legislation Committee's views on section 8?
Yes, I have. I do not call the views misguided—although that comment may just suggest that I think that they are—but I think that the Subordinate Legislation Committee raises an issue where one does not exist. In response to the committee's concerns about the power in section 8, I said:
I was interested in the reference in your opening remarks to the statistic that dog attacks, or at least reported dog attacks, have gone up by 160 per cent over the past eight years. I do not know that for sure, but I am happy to take the figure as given. However, I suggest that it could be looked at in two ways: either there are more dog attacks, or more people are prepared to report dog attacks. It is possibly a combination of both.
On your point about people who are in a state of fear and alarm, when we read subsections (3) and (4) of section 1 we must also look at subsection (5), which refers to circumstances that
That is a laudable aim, and I hope that people would do so. However, my concern is that many members of the public would not realise—as you and I and members of the committee realise—that two elements would have to be in place before a dog control notice could be served. People might think that if a dog put them in a state of fear and alarm while they were walking in the park or other public place they could begin a reporting procedure to local authorities. That in itself would significantly increase the burden on local authorities, over and above what you suggest would happen.
The bill is receiving quite a lot of publicity and will continue to attract attention from the public, so in a way its purpose will feed in through newspaper reports and so on.
I accept that there is a range, but let me put to you another concern that has been highlighted. You clearly stated that the bill was preventive. I assume that, by that, you mean such measures as training dogs to ensure that their behaviour in a public place is more reasonable. However, there is a great deal of concern that certain less-well-off members of society, who often have dogs as their only company, would not have the wherewithal to afford such training. How do you suggest that we get round that problem?
First of all, it is up to the dog warden. I do not expect that the dog warden, community warden or environmental warden would serve a notice for every minor event, because the aim is to divert from that. They might just have a wee word in the owner's ear.
I am grateful for that response.
Some serious concerns have been expressed and representations made about the provisions on the behaviour of dogs on private properties. I am sure that you are aware of that, Ms Grahame; I think that you and Alex Neil have received representations about it. Is it fair that people can complain about being put in a state of fear and alarm by a dog in someone's garden, irrespective of the dog's behaviour? Many people get dogs for companionship, but many also get them because they live on their own and having a dog makes them feel more secure in and around their home. What is your response to that criticism of the bill?
I will not defend politicians taking leaflets up a path and putting their fingers through letterboxes, as I think was mentioned in previous evidence. However, postmen, delivery men and neighbours who are visiting are entitled to know that they can approach even if a dog is loose in somebody's garden. They are bona fide people at the front door, and they are entitled to know that they will not be put in a state of alarm and distress by a dog that is out of control.
That would be covered by dangerous dogs legislation.
Indeed—a warden would go straight to dangerous dogs legislation or use the bill, which provides that if a sheriff decides that a dog is dangerous it might have to be put down. If somebody who came up a garden path uninvited was aggressive and threatening, and the dog barked, jumped and snarled at them and then ran away around the corner, I do not think that a dog control notice would be appropriate. It would be for the warden to decide, but I doubt whether it would be reasonable to serve a notice in such circumstances.
But wardens would have the power to serve a notice in that situation. I presume that they would take guidance from the bill and not just say, "Oh well—mebbes aye, mebbes naw."
Of course the bill provides discretion. Section 1(5)(b)(ii) gives a warden discretion not to serve a notice if
Would the dog not react to somebody's presence on the property, irrespective of their size or whatever? The dog would not think, "Oh, there's a nice wee cuddly girl—I won't attack and I know not to bark," but that it could bark at an adult.
I did not say that; I referred to threatening and aggressive behaviour from somebody who approaches a house. That is different from an adult such as a postman walking up to a house with his bag or a child walking up a path. If somebody behaved threateningly and aggressively to the dog's owner, what was reasonable in the circumstances would be considered.
To comply with that, we would expect all dogs to be tethered—
No.
That would be a satisfactory fail-safe measure. If all dogs were tethered, everyone would escape criticism or any visit from the dog warden. If a dog was not tethered, its owner would run the risk of somebody knocking at their door because the dog barked at the gate when the kids went by on their way to school and made a lot of noise.
I am enjoying this little confrontation with you, convener, but I must say that every responsible dog owner knows their dog. If their dog cannot be let out for fear that it will bite or snap at the postman's leg, that dog should not—
Is that not a matter for the dangerous dogs legislation?
No.
You talk about biting and attacks. The bill talks about placing someone in a state of fear or alarm. When I deliver leaflets or whatever, I am sometimes made fearful or alarmed when a big dog breenges at me over a gate. That is frightening, even though I have not been bitten.
I will put the situation another way. If an owner knows that their dog looks aggressive when somebody comes up the path—even if it does not harm anybody and just snarls, barks and jumps—the owner should be careful that the dog does not do that if the postman or a child comes up the path, because that might well alarm them. Owners should know their dogs. We are talking about owners keeping their dogs under control and knowing what they should do.
We have received evidence that big dogs place people in a state of fear just because of their size or loud bark, for example. However, the most vicious case that we heard about last week was of a wee terrier that would lock on—people could not shake the blooming thing off. You do not seem to be taking on board people's concern about the terminology in the bill.
On size?
On size, on dogs on private property or whatever.
I am happy to deal with that point.
The people concerned have not just made representations to the committee; as I understand it, they have written to you and to Alex Neil on the matter.
I return to some of the scenarios that you have described, Ms Grahame, with people being chased up a garden path and so on. I declare an interest as someone who stuck his hand through a letterbox in Aberdeen during an election campaign and got his hand bitten. The first thing that the man said when he came to the door was, "Oh, he wouldnae touch you"—as the blood was running down my sleeve. How is a dog warden supposed to deal with a situation in which the account of the person who was put in a state of fear and alarm in the front garden totally contradicts the account of the person who came to the door?
It would be a matter of investigating all the circumstances. For example, the dog might have acted in the same way with other people. It would not necessarily be an on-the-spot judgment. There might be circumstances in which an on-the-spot judgment is appropriate, taking into account reasonableness, fear and alarm and the out-of-control nature of the dog, but it might not be appropriate if there was a dispute.
Let us take the example of a dog on private property. If an owner is aware that their dog might be out of control and they display a "Dangerous dog" or "Beware of the dog" sign at the entrance to the property—we often see them on people's doors—how would such situations be dealt with? Would the owner have absolved themselves of responsibility because they had said, "Beware of the dog" at the garden gate? What action could be taken in that situation to serve a notice on the owner? The owner would say that they had forewarned anybody entering the garden that they should be aware of their dog.
First, it would not be an absolute disclaimer simply to have a notice up. A child could walk up to a gate, or someone with sight difficulties could walk up the path and not see or understand the notice. It is not an absolute disclaimer to have a notice that warns, "My dog bites."
So if there was a notice and the dog was tethered and under control, the owner would be absolved but, with anything less than that, a complaint would instigate an investigation or a knock at the door.
Are you talking about all dogs or just guard dogs?
I am talking about dogs that place in a state of fear or alarm someone who passes or approaches a gate or house. That would be the basis for a complaint to the dog warden, who would investigate. Anything short of tethering—
No, you are jumping to an enormous conclusion.
I am making a comparison based on the evidence that you have given.
The officer will have to apply the tests. The first test is whether the dog is kept under control effectively and consistently. Whether the dog is small or big, its behaviour is the key, and the second test is whether that behaviour gives rise to reasonable alarm and apprehensiveness in an individual. That is the test of reasonableness—the alarm has to be reasonable on the part of the individual. The dog must threaten their safety, the safety of some other person or that of another animal or dog, which might be out in the park.
That is just one scenario. Does that not bring us back to the local authorities' worry about resources? In some places there are no dog wardens, in others there is one warden, and other areas have environmental health officers. The bill will increase people's expectation that they can complain about a dog. You describe a series of tests, which will be a burden on the individual dog warden and the local authority, and we have to multiply that 32 times. Do the local authorities have a reasonable claim that, under the bill, it will cost a lot more than it currently costs to deal with the issue? Will councils have to employ many more dog wardens and other staff than they currently do?
My contention is that they will not. As I have already said, a range of people deal with dog-related issues—if I can put it as broadly as that. In the Borders, community wardens and environmental health officers have such duties. I have conceded that there might be an initial upsurge in interest—although I do not know—but the bill is a preventive measure and the aim is to reduce problems for wardens.
I am sure that you read the evidence to the committee last week. Although the National Dog Warden Association welcomes the bill as a tool in the box, it is concerned that the formal procedures will be additional burdens. The association is also concerned that wardens will have to pick up a lot more police work, and that the contracts will not cover weekend and out-of-hours work, which will become increasingly necessary. As we have received no evidence from COSLA on increased costs, I can only presume that it has changed its mind about the concerns that it raised with the Scottish Government, although we might hear from COSLA before the stage 1 process is finished. Do you agree that there is at least uncertainty about the costs and the resources that might be required as a result of the bill?
I can only repeat what I said in my introduction: the authorities in Aberdeen and Edinburgh made it plain that they do not see additional costs being incurred.
We must look at the evidence in total. As a committee, we were all impressed by those who gave evidence last week. It would give us confidence and reassure us if such people implemented the bill across Scotland, but their point that the situation will become more formal than it is at the moment needs to be recognised. Some of the interventions that you believe would be helpful are being used now—having a quiet word with someone, for example—but under the bill the process will need to become more formal. The wardens' evidence showed that, so I hope that you will reconsider the point.
I want to follow up on a good point that John Wilson made about someone who issued a disclaimer. Your answer that that would not absolve them of any responsibility was satisfactory, but should the bill refer to that, because there is nothing to tell people that the use of a disclaimer would not get them out of such situations?
I do not think so. All the circumstances must be looked at. Would it be appropriate to allow a person to say that there was no need to worry about their dog because, although it bared its teeth and snarled at someone, it would never bite them? I do not think that the use of a disclaimer would be satisfactory.
I am just concerned about the clarity of the bill.
The bill follows established principles of Scots law on civil matters; I am thinking of the example of interim interdicts. It is good to have corroboration, but it is not mandatory in civil matters.
Perhaps it was the way in which I worded my question, but I am not so concerned about the legal points, to which you are more than able to respond. I am more concerned about the financial aspects of providing the necessary resources—people, basically—to corroborate and support complaints of a breach. I am not sure that that has been addressed.
In order to assess the level of breaches and appeals, I sought information on the experience of the Dog Fouling (Scotland) Act 2003. However, no such information is held, so I sought to estimate the number of likely breaches and appeals based on the experience of antisocial behaviour orders and community service orders. Based on that experience, the estimated number of appeals and breaches is not expected to be high, and the work will easily be subsumed into the existing workload of the Scottish Court Service.
I am interested in your point that the legislation will be preventive. You said earlier that once the bill is passed, we will see fewer incidents. I suspect that that will not happen until people have actually been served with notices, in which case they might think that we are taking the issue seriously. In what sense is the bill preventive?
The bill will give community wardens, environmental wardens or whoever and the public a statutory right to intervene in the behaviour of a dog at a much lower level of concern, which will, I hope, be way before the dog can be deemed to be dangerous.
I really hope that you are right about that. There is room for an additional measure in the process, but I am concerned about the time that it will take to provide information to people and to educate them on looking after their dog, and whether the resources are available for that. After all, it takes time to educate a co-operative person; the situation is even more difficult if someone does not co-operate. I am not sure that the right balance has been struck in that respect.
Every citizen has to operate within Scotland's legal framework. If that framework includes the measures in the Control of Dogs (Scotland) Bill, everyone who purchases or is given a dog will know that they have a duty to bring it up responsibly and to ensure that they are responsible owners and that the dog responds and behaves appropriately.
I want to finish the evidence taking by about 12 o'clock, so I am looking for sharp questions and short answers.
I beg your pardon, convener.
I want to follow up the issue of corroboration in relation to the civil and criminal aspects of issuing a notice that we discussed with the cabinet secretary and Mr Lamont. You have drawn a comparison between gathering evidence for antisocial behaviour orders on out-of-control people and gathering evidence for dog control notices on out-of-control dogs. As a constituency member who has had to deal with complaints of antisocial behaviour and has experience of the various processes involved, I have found that neighbours are quick to complain to the council but that the provision of evidence usually comes down to a council official, because the neighbour is reluctant to come forward and testify in public about the conduct of the person in question. As a result, responsibility for pursuing the matter usually ends up with officials in the housing department and so on. Similarly, dog wardens were concerned that even with a dog control notice, which might be subject to an appeal, two wardens might be required to do the attesting, because there would be no attestation from others. In other words, if the job is to be done properly, it will fall on the shoulders of local government officials to get the evidence and make the case fireproof.
First of all, you will accept that, as this is a civil matter, corroboration is not mandatory. It is nice if you can get it, but you do not need it.
But my point is that if an appeal came down to a tit-for-tat thing with one person saying, "He said this, he did that," and the other saying, "No, I said this, I did the other," even though, as you rightly point out, the burden of proof would be lower, the balance would still be in favour of the serving of the notice. That is what is giving rise to concerns.
I understand that. At the end of the day, it would come down to the credibility of the witnesses in the eyes of the sheriff. It would not be in all circumstances that there would be no corroboration whatsoever, although I am not conceding that there must be corroboration. I gave the example that somebody might be given several warnings, which would be noted, and words might be said in their ear, but if finally the dog warden was called again, he would say, "No, this time it is reasonable that I give you a dog control notice."
Are you in possession of the letter that we have received from the National Dog Warden Association? If not, we will get that letter to you; otherwise it is not fair to ask you about it. The dog wardens, whom we all praised earlier, raise an issue with regard to your written statement to the committee on the matter of corroboration. The letter states:
I will follow up Mr McLetchie's question. I am sorry if I am labouring the point, but I want to be absolutely clear on the issue. My understanding from reading the bill and from what you have said today is that the dog is deemed to be out of control if
Do you want me to deal with the issue of consistency?
Yes.
It would depend on the circumstances. For instance, a dog would not be regarded as being consistently out of control if, when it was in the park for half an hour, it harassed someone and failed to come back despite the owner calling it. That would be one event, rather than a series of events. It would also depend on the period of time. If the event took place over two minutes, but the dog did the same thing on another occasion, a different definition of "consistently" would apply, because there would be separate events. However, it could also apply to one long event.
That is helpful. I read "consistently" as suggesting that there might have to be a sustained period of misconduct by the dog and/or its owner. Are you saying that it could involve a one-off event?
It could be a one-off event. The owner might endeavour several times to get the dog under control but fail, and the situation might get worse, with the person becoming more alarmed because of the failure of the owner to be able to control the dog. Such a situation would show that the dog was not being kept under control "effectively and consistently". The dog might return to the owner and then dash back to the person again to worry them—that type of thing might be involved.
I want to follow up on the issue of the bill being a preventive measure. You referred to dog fouling legislation and the smoking ban, which have been heavily supported by on-going publicity. Every public premises has had to display a no-smoking sign, and local authorities have had to put up signs on lamp posts or park gates where there has been dog fouling and to provide bins for dogs' mess. I do not see anywhere the costs of on-going publicity relating to the bill. We are talking about a preventive measure. You gave the examples of people who are given a dog and people who buy a dog, and they should all be aware of the impact that the bill may have on them.
People do not even need to be told about the smoking ban in public places now, as that ban has, like the measures on dog fouling, come into public knowledge.
Public premises must display signs that say that smoking cannot take place in them. That is the result of legislation that is in force. You compared the smoking ban and your bill. How will we provide on-going funding and publicity to ensure that the bill becomes well known to potential dog owners?
I accept that the display of certain notices is mandatory, but people are now aware that they cannot sit in a pub or restaurant and light up a cigarette. Similarly, dog fouling notices do not need to be displayed, because dog fouling is an offence anyway. However, having such notices is handy.
I have a final wee question for the sake of clarity. Earlier, we spoke about private property. I think that you said that you would not want the legislation that covers private property to be weaker than that which covers commercial property and guard dogs. Will you make it clear that you do not expect people with dogs on private property to deal with the same tethering and other ownership requirements all the time?
Of course I do not.
It is just that you made a comparison at least twice—you said that the legislation that covers private property should not be weaker than that which covers commercial property and guard dogs.
In the specific circumstances in which somebody endeavours to use their dog like a guard dog on their private property—if they say, "I've got my dog running about my garden. Beware of the dog"—a lighter touch should be applied than is applied to commercial premises. Ordinary pets that are not being used for that purpose would not be tethered. My own dog was pretty useless at even barking at anyone coming up the path.
When you go to some people's houses, you see signs all over the place that say "dangerous dog", "dog bites" and so on. They are almost saying that the dog is a guard dog, which would mean not only that a dog notice would be required but that that dog would need to be tethered or that someone would need to be there.
It should be under control. If it was not under control, the person would be in breach of one of the tests in the bill.
Thank you very much for your attendance this morning and for the evidence that you have provided. We look forward to working with you as the bill progresses.