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Chamber and committees

Meeting date: Tuesday, November 23, 2021

Local Government, Housing and Planning Committee 23 November 2021 [Draft]

Agenda: Decision on Taking Business in Private, Subordinate Legislation, Local Elected Office (Barriers), UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021


Contents


Subordinate Legislation


Scottish Dog Control Database Order 2021 [Draft]

The second agenda item is an evidence session on the draft Scottish Dog Control Database Order 2021. I welcome the Minister for Community Safety, Ash Regan; Jim Wilson, who is licensing team leader in the Scottish Government; and Louise Miller, who is a solicitor in the Scottish Government. We will take evidence from the minister before we move to a formal debate on the draft order. I invite the minister to make a short opening statement on the order.

Good morning. I thank the committee for inviting me to speak about the draft order that has been laid for Parliament’s approval. I very much welcome the opportunity to give evidence. I also thank the Delegated Powers and Law Reform Committee for its consideration of the draft order earlier this month.

The Control of Dogs (Scotland) Act 2010 introduced the dog control notice regime. Local authority dog wardens are able to issue a dog control notice to a dog owner who allows their dog to be out of control. The civil notice can contain a number of conditions, such as the need to muzzle the dog or to keep it on a lead whenever it is in a public place. Breach of a dog control notice is a criminal offence.

Section 8 of the 2010 act provides the Scottish ministers with an enabling power to make an order to establish a national database of dog control notices. The intention of the draft order is to provide for the establishment of such a database. Each local authority already has a statutory responsibility to monitor the effectiveness of every dog control notice that it has issued, but the national database will bring together the records of all local authorities in a centralised database that will be accessible to local authorities and Police Scotland. The database will be a valuable tool in improving the effectiveness of the 2010 act.

The information that will be held on the database will include the name of the person to whom the dog control notice applies, the address of that person, and information relating to the dog, such as whether it is microchipped and the name of the animal.

That is a brief overview of the draft order. I will be happy to answer any questions that the committee has about it.

Thank you, minister. I will start the questions.

In response to the 2019 consultation on the Control of Dogs (Scotland) Act 2010, local authorities raised a number of issues, including the difficulty of working across all the different information technology systems that are used by the different local authorities, and questions about who would be responsible for maintaining and running the database and who would have access to it. How have you involved, or how do you intend to involve, local authorities in the design of the database? How have their concerns been addressed? Do you have a plan? Have you already involved other stakeholders in the design?

Yes, we have. We have had quite a large amount of consultation with local authorities and others on the design and implementation of the database. I will ask Jim Wilson to give some of the detail of that.

Right at the beginning of the process, I initiated direct engagement with Councillor Kelly Parry, who is the Convention of Scottish Local Authorities spokesperson for community safety and wellbeing. That was to ensure that COSLA was sighted on what we were doing and to get its full involvement in the plan for initiating the design of the database and so on. I think that I have met her twice over the past year—I ask Jim Wilson to confirm whether that is right.

Jim Wilson (Scottish Government)

Yes.

I would say that that was in the past year and a half.

We have had quite a lot of engagement with local authorities and other stakeholders. The committee might be aware that the Scottish Government leads a working group on dog control and dangerous dogs, which covers the other part of the legislation—the Dangerous Dogs Act 1991. That group has lots of members, including COSLA, the Scottish Community Safety Network, a victims’ voice—we thought that it was important to have that—the National Dog Warden Association and Police Scotland.

I think that the convener asked about whether local authorities have raised issues and what we have done to work through those. I can think of a couple of things that came up.

There have been issues relating to the migration of data. The populations of local authority areas vary, so I guess that it makes sense that there is variation in that some give out very large numbers of DCNs and others give out quite tiny numbers of them. There was some concern about pressure on local authorities to migrate that data on to the database. We are working with them, as the Improvement Service is, to make sure that we are not putting undue pressure on them but, equally, to ensure that we get the data on there so that we can start to use it. We think that we have sufficient time in the roll-out plan to make sure that that happens in a timely fashion.

The other issue was costs to do with developing the database—the set-up costs and the running costs. The Scottish Government has funded the set-up costs, and it has agreed to fund the running of the database for the first two years. We are in on-going discussions with stakeholders about what might be called a fair funding model and how that will go. Further discussions are under way on that.

I ask Jim Wilson to give a bit of the flavour of the engagement that we have done with local authorities.

Sure. Thank you, minister.

I will come on to the convener’s point about engagement very shortly. First, I will add to the minister’s helpful comments on migration.

We asked the Improvement Service to do some targeted engagement with the six local authorities that have served the highest number of dog control notices. A migration workshop was conducted on 18 November. There will be further discussions with all 32 local authorities about the timescales in which they will have to transfer across the data that will populate the database system.

It might be helpful to give the committee a flavour of the number of dog control notices that have been served across the country. The latest data that we have suggests that in the region of 1,465 live dog control notices will go on to the system.

I will touch on the engagement, which stems back to January. The Scottish Government and the Improvement Service have provided a number of joint communications. A workshop session on the dog control notice database, which was attended by 27 or 28 local authority representatives, was delivered in January.

We then decided to do a scoping study to try to understand the landscape. On the convener’s point, we wanted to know what processes are in place and what systems and technologies are used across the local authority estate. The Scottish Government funded that eight-week scoping study, which cost £15,000. Building on that, we decided to do a proof of concept, which involved creating a dummy system in order to prove that it would be possible for information sharing to take place. That work, which cost £30,000, was jointly funded by the Scottish Government and the Improvement Service. Six councils participated directly in that work.

We also held eight drop-in sessions, in which every local authority was invited to speak directly to my team, the Improvement Service and Police Scotland to consider any process issues. The sessions were really well attended. We managed to have 31 out of the 32 local authorities participating in the sessions, so there is still one with which we need to engage.

In addition, a knowledge hub has been set up for everybody who has a direct interest in the system. That has been done to ensure that there is regular communication on any matters that require clarification as we move towards the final development stages of the system. In the coming weeks, in order to support operational staff in local authorities and Police Scotland, we will produce a document of frequently asked questions that sets out any issues that have been raised on the knowledge hub. That will provide absolute certainty on how the system should be used and operated.

It sounds as though you have covered a lot of ground to ensure that the system is workable.

The order will restrict access to the database to only those who require access to the information under the 2010 act. The policy note states that local authorities, Police Scotland and Improvement Service staff will manage the database, but some stakeholders—including the Dogs Trust and Mike Radford OBE, who is an animal welfare law expert—recommended that the database should also be accessible to the Scottish Society for the Prevention of Cruelty to Animals and the judiciary. Will the SSPCA and the Crown Office have access to the database? If not, why was that not considered to be appropriate?

The provisions in the 2010 act control what we can do in establishing the database, and they are very specific. The act sets out what data we can hold and who can access it. At the moment, we are able to enact only what the act’s provisions give us the power to enact. That is what we have done; we have gone as far as we can. We have followed the act’s provisions in laying the draft order that is in front of the committee. That is why the order refers only to the organisations that you mentioned.

You are right to say that there is the potential for other organisations with an interest to be able to access the database and for additional data to be held on it. When the Public Audit and Post-legislative Scrutiny Committee considered the matter, there were questions about whether the database should hold additional data. For example, should it hold all the complaints that have been made about the conduct of a certain dog? Should it contain information on whether a DCN has been breached? At the moment, such data is not able to be held on the database because there are only specific provisions that we are allowed to enact.

However, I am going through a process of looking at what needs to be done to improve the enforcement of the provisions in the 2010 act. This session is part of that process. In the previous session, the Public Audit and Post-legislative Scrutiny Committee produced a report on the issue—which I am sure this committee will have seen—and recommended that that work be done.

09:15  

We have now moved on to review the wider regime of dog control. That includes consideration of the Dangerous Dogs Act 1991, which I am committed to reviewing. We will go through a number of steps in doing that. Once we have done that, we will introduce—I hope, in this parliamentary session—a bill on the control of dogs regime. If we want to change the database to allow additional information to be held and additional organisations to access it, that needs to be done through primary legislation, and the forthcoming bill will give us an opportunity to do that. We are actively considering including all those things in that bill.

It is great that we have the opportunity to look at what you have called the wider regime of dog control. That is heartening news.

Good morning. I refer everyone to my entry in the register of members’ interests, as I am a serving councillor on East Lothian Council.

My question is also on the database. How will it be ensured that the database complies with the requirements of the general data protection regulation?

That is an important point. From the beginning of the process of developing the database, we have involved the Information Commissioner’s Office. Obviously, the database will contain personal data, and we are required to ensure that the data is used and held appropriately.

The Government carried out a data protection impact assessment. I hope that the committee has that assessment as part of the documents that accompany the draft order, so members can have a look at that if they are interested in the detail. The ICO was also involved in the preparation of the draft order, and it is content with the policy as it stands.

There is a little complexity in relation to joint data sharing and so on, so a process needs to be worked through. The Improvement Service has what it calls framework service agreements, which will cover data sharing between all the organisations that are data controllers. Those agreements will need to be in place with all 32 local authorities. Local authorities will be issued with those agreements, and they have a statement of work that they will need to sign up to before the database goes live.

Have I missed anything out, Jim?

I will add a couple of points. I stress that we have had on-going engagement with the Information Commissioner’s Office. We invited representatives from the ICO to a show-and-tell session that was delivered jointly by the Improvement Service and the Scottish Government. That provided an opportunity for local authorities and the police to be kept up to date on the latest developments on the delivery of the system.

We have further engagements planned with the Information Commissioner’s Office to iron out any GDPR-related issues. As things stand, I am not aware of any significant issues having been aired, but we want to ensure that the information on the system is held securely and appropriately. I stress that further engagement is planned with the ICO in the coming weeks.

The minister mentioned that local authorities will have to sign up to the agreements. Is there an estimated timescale or a target date for that?

There are three phases. We are now in the final delivery and development phase, which will last from now until December. Phase 2 will be from the end of December to the end of January. Any documentation will need to be finalised during that time, with a view to the system going live on 11 February. That is the target date. There is a three-stage process.

I invite Willie Coffey, who joins us on BlueJeans, to ask his questions.

Good morning. I am delighted that a wider review is taking place of the 1991 act and the 2010 act, which was the subject of the work that the Public Audit and Post-legislative Scrutiny Committee did in the previous parliamentary session, as the minister will recall. I am sure that members who served on that committee will be listening in to this meeting.

I ask the minister to clarify something. If a person who has been served with a dog control notice in one local authority moves to a different local authority with the dog, does the dog control notice cease to apply in the second authority, or does it still apply?

That was our understanding of the way in which the regime is functioning at the moment. One of the reasons for implementing the database is to make enforcement easier in cases in which someone is issued with a dog control notice in, say, Fife, but they then move to Lanarkshire. We think that the enforcement process will be easier for local authorities and, we hope, for Police Scotland.

As you have said, access to the database will be on a national level—any authority will be able to access the database, even if a person with a dangerous dog that is subject to a notice moves around. Should an animal commit a second offence—if I can put it that way—in a neighbouring authority, would that become the first offence in that authority, or would it count as a second offence? You have said that the notice is a civil notice, but breaching it becomes a criminal offence, so it is probably important that a person knows whether, if their dog commits a second act of aggression, such as an attack, in the neighbouring authority, it will be a criminal offence.

I have a couple of points to add to the minister’s answer, which relate to the digital transfer of dog control notices. The situation will very much depend on the circumstances. If I were to move from Fife to Edinburgh, I could seek a variation of a dog control notice that had been served, because my circumstances would have changed. A key concern that was raised by local authority staff was to do with enforcement difficulties. Although there is an obligation on the owner—the “proper person”, as defined by the 2010 act—there will be occasions on which there could be challenges around information not being fed into the new local authority, which would have to consider whether the notice that had been served by another local authority still stood.

It is possible for specific conditions to be set in a dog control notice—for example, that the proper person, or the dog owner, must avoid particular places and must ensure that the dog is on a lead in particular parks in a local area or community. However, the 2010 act has national effect, so the serving of a dog control notice can be done nationally. We looked at clarifying the transfer process in the context of the updated statutory guidance that was produced by the Scottish Government in December 2020.

I mentioned the frequently asked questions document that we are developing. We would want to provide more clarity to operational wardens on the transfer of digital notices, because at the moment wardens are scrabbling about. They know that they have enforcement responsibilities under the 2010 act. When somebody suddenly goes off their radar, so to speak, they wonder whether the person is still in the community or whether they have moved to another area. We reckon that one of the benefits of the database system will be to support wardens’ enforcement duties and to support wider work that might be undertaken by Police Scotland.

There is also a welfare angle. The gathering of microchip information was made possible through the prescribed order form that was agreed to by Parliament in 2011. That means that if, for example, a stray dog is reported to the local authority or the police are asked to intervene and investigate, the microchip information will be key in helping to reacquaint the dog with the proper person or owner.

Thank you for that.

I have a final point of clarification. If a person whose dog is subject to a DCN moves to another authority, who is obliged to tell the authority? Is it that person who is obliged to report to the authority whose area he or she has moved into that they have a dog that is subject to a DCN, so that that can be recorded in the database? Is that how it works?

Jim Wilson

It is.

Yes, it is their responsibility. They are the proper person to notify the new local authority that they have moved there and to give their new address.

If they did not notify the local authority, would that be an offence under the 2010 act?

No, that would not be an offence under the 2010 act. We might look at that as part of our review in relation to potential future legislation.

That is great.

Good morning. I have a couple of questions that follow on from Willie Coffey’s questions. People moving between local authorities is one issue, but will you also capture information on changes of dog ownership? Has that issue been explored?

Absolutely. We recognise that there could be situations in which a family believe, for whatever reason, that they are not in a position to care for and look after their dog, so they ask someone else to take on the dog. I go back to what I said to Mr Coffey. If there is a change in circumstances, a critical part of the process is the person who has been served with a dog control notice notifying the local authority. Someone who takes on responsibility for a dog might feel that the conditions that were set out in the dog control notice no longer apply—they might view themselves as a very responsible dog owner—so, under the provisions in the 2010 act, they could seek to have the dog control notice discharged. From my direct experience of dealing with local authority dog wardens, I think that a challenge that they face is that, under the 2010 act, there is perhaps an overreliance on people notifying the local authority of a change in circumstances.

I will pick up on the minister’s point about the opportunity to strengthen the 2010 act. There is the commitment to review the 1991 act, but we are also mindful of the responses to the consultation on the operational effectiveness of the 2010 act. We have looked at an obstruction offence that would be similar to provisions that are contained in the Dog Fouling (Scotland) Act 2003, so that there would be an opportunity to serve a penalty if somebody did not comply in giving information to the local authority in order to allow dog wardens to do their job. Local authority dog wardens felt quite strongly about that. We have had discussions about the opportunity, if the primary legislation vehicle comes along, not only to reform the 1991 act but to strengthen the regime under the 2010 act.

That is very helpful. The wider review probably presents far more opportunities. I think that I am right in saying that the minister said in her opening statement that the information that will be shared will include that relating to microchipping.

Yes.

We have heard a lot about the other opportunities that the database will present, but we know that social services would also often be interested in looking at some of the information, particularly given the link between animal welfare issues, domestic abuse and violent crime. Is that issue being pursued during the review?

It is. We have committed to that. I want to have the most effective dog control regime. We have been talking about two acts. It is envisaged that the 2010 act should act as a preventative regime. We want people to be responsible dog owners by keeping their dogs under control and behaving when they are out, so that they do not become dangerous dogs, which is an issue that is covered by the 1991 act.

There is quite a complex interplay, with dog wardens at one end and Police Scotland and the Crown at the other. There is an opportunity to look at everything in the round and to see whether the legislation needs to be strengthened, although I think that we all agree that it does need to be strengthened. There is an opportunity to consider all those factors. Miles Briggs has raised a good point.

09:30  

The Parliament has also investigated dog breeding and puppy farming. Will such matters form part of the future review, or will they be able to be recorded in the system that we have been talking about, when it is up and running? Sadly, there is also often a link between people having dangerous dogs and the breeding of such dogs.

That issue could be considered, but I think that that is more to do with animal welfare. I think that there is a reporting duty in the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020. I did not work on that legislation, but there might be opportunities for justice and animal welfare colleagues to work together on such issues. I know that Jim Wilson works with them, so he might be able to give the committee an update.

Mr Briggs has raised a really good point. We have a Scottish Government led working group, which includes a presence from the Government’s animal welfare policy team, because we understand that it is important to consider dog control policy development through a cross-portfolio lens. In the previous parliamentary session, we were brought into discussions on Emma Harper’s member’s bill—the Dogs (Protection of Livestock) (Amendment) (Scotland) Bill—and we even gave evidence alongside Mairi Gougeon at the Rural Economy and Connectivity Committee. We are keen to work with animal welfare colleagues, because there is a cross-portfolio interest.

A question was posed earlier about engagement with other stakeholders such as the SSPCA. I have had a number of recent discussions with Mike Flynn from the SSPCA. During our review of the 1991 act, we are keen to bring him in to enhance our expertise on the Scottish Government-led working group once we get into the nitty-gritty of potential policy changes in that space.

That is very helpful. There are many smaller such charities across Scotland—the minister and I know about the work that the Edinburgh Dog and Cat Home does; she does a lot of fundraising for it, which is very appreciated and welcome—but a lot of them do not have people working on policy, so it will be useful to ensure that they are supported in understanding how they can play an important part in the work.

Absolutely. I have had conversations with the Edinburgh Dog and Cat Home about the issue. As you said, it and a number of smaller stakeholders with expertise in the area want to contribute to the development of the work. We will expand the working group, because we want to ensure that we have the right expertise on it. We are moving from considering operational issues relating to the 2010 act to considering wider policy and legislative changes. We will keep Miles Briggs’s point in mind.

Thank you.

I thank the witnesses for responding to the questions so thoroughly. The next agenda item is consideration of motion S6M-01888. I invite the minister to move the motion.

Motion moved,

That the Local Government, Housing and Planning Committee recommends the Scottish Dog Control Database Order 2021 be approved.—[Ash Regan]

Motion agreed to.

I will suspend the meeting for a changeover of witnesses.

09:33 Meeting suspended.  

09:39 On resuming—