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Welfare of Equidae Code of Practice (Revocation) (Scotland) Notice 2026
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Agenda item 2 is an evidence session on subordinate legislation. This notice seeks to revoke the 2009 code of practice. The Scottish Government also published guidance that would replace the code in August 2026. The document is subject to affirmative resolution, which means that it is for the committee to recommend to Parliament whether the notice should be approved.
I welcome the Minister for Agriculture, Marine and the Islands, Jim Fairlie, and, from the Scottish Government, Professor Simon Girling, veterinary adviser, and Grant McLarty, solicitor. Minister, I invite you to make a short opening statement about the instrument. After that—you know how it works—members will have the opportunity to ask you some questions before we move to a formal debate, if required, on the motion.
Thank you very much, Presiding Officer—I mean convener. It has been a while since I was here. Thank you for taking time to consider this instrument.
On 25 August, the Scottish Government published comprehensive new guidance on the welfare of equids, which is now available on the Scottish Government website. The guidance replaces the 2009 “Code of Practice for the Welfare of Equidae”, and revocation of the 2009 code is sought in order to avoid confusion and to ensure that owners of equids are following the most up-to-date advice and management practices. We published the new guidance because animal welfare knowledge, equid-friendly management practices and science have moved on considerably since 2009. Research has deepened our understanding of equid behaviour, mental wellbeing and what equids need in order to experience not just a life worth living but a genuinely good life.
The new guidance reflects the modern evidence base and ensures that owners and keepers can access clear, current advice that is aligned with best practice. Its development was a collaborative exercise between the Scottish Government and the Scottish equid sector, and it incorporates the latest expertise from leading veterinarians, allied professionals and equid specialists, as well as expertise that simply did not exist in its current form in 2009. The new guidance sets out core principles that are based on the evolutionary needs of equids, recognising that horses, donkeys and their hybrids require social bonds, freedom of movement, appropriate safe forage and the opportunity to express their natural behaviours. The guidance provides practical advice to all those responsible for equids, with the aim of ensuring that they experience a good life that is worth living at every stage.
The Government has introduced guidance instead of a replacement code because, as we have seen, the research base and expertise evolve and statutory guidance can adapt quickly when evidence, best practice and legal requirements that improve the welfare of equids change. What is considered to be good practice in the area of animal welfare is constantly changing, and it is important that the information issued and requirements made by the Government are kept up to date. I highlight to the committee that the replacement of a code of practice with statutory guidance has occurred previously in relation to meat chickens in 2019, laying hens and pullets in 2020 and pigs in 2023, so this is not a new approach.
The existing code was made under section 37 of the Animal Health and Welfare (Scotland) Act 2006, whereas the legal basis for the recently published guidance is section 38 of the same act. It is worth clarifying that, regardless of whether it is presented as a code or as guidance, the content of these documents is advisory in nature and neither a code nor a guidance document contains legal requirements. However, just like the code that it is intended to replace, the guidance provides recommendations for compliance with animal welfare laws, and it may prove useful to the courts in the context of criminal prosecutions. The guidance may be particularly relevant in the context of establishing whether liability arises under section 19 the 2006 act, in relation to the offence of causing unnecessary suffering to animals, or section 24, in relation to the offence of failing to take reasonable steps to
“ensure that the needs of an animal are met by the standard required by good practice”
That is a really important line.
Accordingly, the guidance may be used by courts in the same way as a court may choose to use a code of practice. The new guidance represents a significant step forward in supporting Scotland’s equid sector to meet both its legal obligations and higher aspirations for animal welfare, and I am very grateful to the sector for the key role that it played in the development of the guidance.
I appreciate that we have limited time, so I will close my remarks and take any questions that the committee might have.
Thanks very much, minister, for that useful introductory statement. I ask you to reflect on whether it might have been better for the committee to have had a more detailed policy statement in advance of the meeting, but I very much welcome what you have put on the official record. We will move to questions from members.
I want to go back to the question that is always asked: why replace a code of practice with guidance? Can you point to one example where the welfare of horses and so on would be better protected under non-statutory guidance than through a code of practice that would be subject to the scrutiny of this Parliament?
The important thing to remember is that neither the guidance nor the code has legal effect. The legal effect comes when the court deals with a prosecution. The line that I highlighted to you in the Animal Health and Welfare (Scotland) Act 2006 concerning the offence of failing to take reasonable steps to
“ensure that the needs of an animal are met by the standard required by good practice”
is the relevant one, along with the wording in section 19 on the offence of causing unnecessary suffering to animals. Those are the bits that the courts will use to decide where they go with any prosecution that is put in front of them—it is up to the courts to decide.
Yes, but the question is, why go for non-statutory guidance rather than a code of practice? Given that the code of practice is approved by Parliament, why would horses be better protected under non-statutory guidance? Why choose guidance over a code of practice?
As I said, neither the code nor the guidance is a legal requirement, so the position is exactly the same. Grant McLarty will correct me if I am wrong, but the position is exactly the same whether it is in guidance or a code. If there is a prosecution because somebody is not looking after the welfare of their animals, the decision about what to do will be for the court, whether it refers to a code or to guidance.
I get that, but the point of the question is, why move away from a code of practice that this Parliament gets the opportunity to scrutinise? We also get to see the consultation responses, which are lacking in relation to the guidance. There is no indication of whether those who are looking after horses, donkeys or whatever responded to the consultation on the guidance. We do not know who was asked, whether anybody responded or whether those responses were supportive or otherwise. What is the difference about having guidance that makes you go for that rather than a code of practice?
In terms of how the process functions, from the Parliament’s point of view, if you have a code, you have to go through the entire process, so you do not have the flexibility and nimbleness to be able to respond quickly. As you can see, the code was set in 2009. It is now 2026 and a lot of changes have happened over the intervening period, which is why the guidance was developed in the first place. I take the point that you are making, but the guidance gives us more flexibility to get the kind of welfare changes that we want to see in place more quickly.
With regard to the consultation with those who are involved, I think that I made it quite clear in my opening statement that the proposal has been developed in full conjunction with the sector. The sector itself wants to be held to the highest standards of animal welfare. There is nothing being hidden here. There is nothing that is not being done to benefit the animals that we are trying to protect.
I take the point that you are making, but the point of what we propose is to ensure that we are nimble in our ability to put protections or guidance in place as quickly as we can.
The minister was invited to clarify the legal position, so it is perhaps worth saying that codes of practice and statutory guidance are both available as a means of issuing non-binding advice under the Animal Health and Welfare (Scotland) Act 2006. Section 37(9) of that act says that, in any proceedings for an offence under the act,
“failure to comply with a relevant provision of an animal welfare code may be relied upon as tending to establish liability”,
whereas
“compliance with a relevant provision of an animal welfare code may be relied upon as tending to negative liability.”
There is no such express provision in relation to statutory guidance under section 38, which is what has been published. However, notwithstanding the lack of express words in the 2006 act, a court would be entitled to make reference to the guidance, as the minister says, in the same way.
The guidance itself includes text advising that it may be considered relevant by the courts in any prosecution of offences under sections 19 and 24 of the 2006 act. That is where there is similarity between the two types of document.
Okay. That is useful. Andrew Baxter, do you want to come in?
Finlay Carson has slightly touched on the area that I would like to concentrate on, but I will say that it is somewhat unusual that neither the committee nor individual members have received correspondence from the sector on the new guidance. That means either that the sector is completely satisfied or that there is a lack of knowledge of the new guidance among the public. Could you provide more detail of the collaboration with the sector and of the wider consultation beyond veterinary advice and the views of the National Equine Welfare Council, so that we can be satisfied that the new guidance has received the public scrutiny that it deserves outside Parliament?
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Simon Girling will be able to answer that question better than me, as he has had more contact with people in relation to the instrument.
We went through a fairly lengthy process involving people who were not just from the veterinary and academic side of things but included representatives from the British Horse Society and welfare organisations, as well as nutritionists and so on, so it was a large committee that drew up this guidance, with our help. That process went on for the best part of a year. At the beginning, we made sure that the make-up of the committee was appropriate and covered all the areas that we thought needed to be covered in order to write authoritative guidance.
The feedback that we have had from the equine industry and from private horse owners is that this guidance is the best that we can produce on the current evidence and knowledge that we have about equine welfare. Individuals raised issues such as the plucking of hairs from horses’ tails, and we made sure that that particular issue, which was raised a couple of months in, was included in the process, because there was evidence in peer-reviewed journals about the importance of having a full tail and mane for natural equine behaviours.
We took a fairly in-depth approach to setting up the committee, to ensure that its composition was correct and represented all the different sectors. We made sure that there was consensus on the committee about the final version and that everyone agreed to it. The feedback that the animal health and welfare division has received from all the sectors so far has been very positive. The guidance has been warmly received.
I hope that I can allay any fears that the equine sector is not fully aware of the guidance. Indeed, it approves of it and thinks that it is a significant step forward. However, because of the guidance committee’s suggestion, we have also taken a further step that involves not only clearly defining what good practice is—that is, what you should be doing in order to stay within the requirements of the act—but also including aspirational welfare standards. Effectively, we have signposted the direction of travel in relation to equine behaviour and have indicated that we expect the guidance to be updated regularly as new evidence comes along in the areas in which there is ongoing research that might well change the definition of good practice in the guidance. That is a bit of a new step when it comes to what is included in guidance, but, following the great amount of effort that was put in by members of the guidance committee, we have had full sign-off from all members. There was an agreed consensus in what was a large committee.
Thank you for that. It would have been good to see that evidence on stakeholder engagement replicated in the policy note in advance of the SI being considered by the committee.
On that point, if we are doing anything further in relation to changes of this sort, I will endeavour to make sure that the committee is well aware of all the work that is going behind the scenes. I cannot promise that that will be done, but I will certainly endeavour to ensure that that happens.
I appreciate that offer, minister.
I have a final question, which concerns the Government’s wider work on animal licensing. I believe that the consultation in 2023 included proposals to introduce licensing of livery services and updated licensing for riding establishments. Can you give us an update on where that piece of work currently sits?
Again, I ask Simon Girling to comment on that.
Those proposals are on the work schedule at the minute. We have started the process, but there has been a bit of a hiatus in relation to dealing with the European alignment work, which has occupied a significant chunk of time. The European Union has extended the remit of those provisions, and farm welfare is now included alongside welfare in transport and welfare at the time of killing, which has meant considerable extra work for the legal team and the policy team.
The proposals are on the list, and the intention is to progress that work as soon as we possibly can, because we know that that licensing is needed.
Excellent. It would be helpful if this committee could get updates on that, so that we can plan our work.
My final point concerns your correspondence with the committee, minister. You wrote in August, apologising for the late notification of this SI to the committee. One of the reasons that you identified for that was that there were administrative difficulties within Government. It is not for this committee to speculate what those might have been—whether they were around work planning or training around parliamentary guidance and protocol—but I ask you again to reflect on those administrative challenges in order to ensure that we can work with you effectively in line with the appropriate timescales.
I have gently asked that the administrative error does not happen again.
Thank you, minister.
Our next item of business is the formal debate on motion S7M-01087, in the name of Jim Fairlie, recommending that the committee approve the Welfare of Equidae Code of Practice (Revocation) (Scotland) Notice 2026.
Motion moved,
That the Rural Affairs Committee recommends that the Welfare of Equidae Code of Practice (Revocation) (Scotland) Notice 2026 (SG/2026/193) be approved.—[Jim Fairlie]
Motion agreed to.
The committee will report its decision to the Parliament. I thank the minister and our witnesses for attending.
Charges for Residues Surveillance Amendment (Scotland) Regulations 2026
Agenda item 4 is consideration of a negative instrument, which will come into force unless the Parliament agrees a motion to annul it. No such motion has been lodged. The Delegated Powers and Law Reform Committee has made no comment on the instrument. Do members have any comments?
As we have no comments, do members agree that we do not wish to make any recommendations in relation to the instrument?
Members indicated agreement.
I suspend the meeting briefly to enable witnesses for our next agenda item to come into the committee room.
09:23
Meeting suspended.
09:26
On resuming—
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