The Scottish Government

« Previous | Contents | Next »

Listen

PART 1: ANIMAL HEALTH

Background

1. There are 2 broad proposals:

• To amend the Animal Health Act 1981 and to provide additional powers to deal with the most contagious, exotic (foreign) animal diseases affecting livestock, which can have widespread social, economic and environment consequences; and
• To provide additional powers to deal with Transmissible Spongiform Encephalopathies ( TSEs) if, for example, BSE or another TSE which could affect human health was confirmed in sheep, goats or other livestock animals.

2. The powers of Scottish Ministers to tackle and eliminate exotic animal disease are governed by the 1981 Act. It is this Act that is being amended by these proposals. Since 1981 there have been a number of developments in the science of disease control, the identification of new and emerging disease threats and also heightened awareness of disease risks. The importance of the 1981 legislation was reinforced by the consequences of the 2001 Foot and Mouth Disease ( FMD) outbreak. The disease was fast moving - requiring a quick response from Scottish Ministers to eradicate it. Whilst the existing legislation broadly served its purpose during 2001, there were some instances which highlighted the importance of reviewing the legislation to make some powers more explicit and to increase the powers available to Scottish Ministers to tackle new and emerging diseases quickly. A key lesson of the Phillips Inquiry into BSE (1999) was legislative preparedness.

Consultation Document

3. On 28 February 2003 the Scottish Executive issued a paper "Animal Disease Control: Proposals for Legislation in Scotland - Consultation Document on Protecting Scotland's Livestock Industry and Wider Rural Economy" to agricultural related organisations; trade and veterinary interests; Scottish local authorities and other relevant public bodies; tourism interests; animal societies and welfare organisations; and to religious organisations and some charities.

4. The Consultation Document proposed:

• Amendments to the 1981 Act, and new powers, to enhance Scottish Ministers' ability to respond quickly to exotic animal disease outbreaks thus minimising their economic and other (possibly including zoonotic/human health) impacts. The legislation would complement other measures taken by the Executive and the industry to protect Scotland's livestock industry from exotic and endemic disease.
• That most of the legislative powers in the Bill would be for use only in the event of a serious and fast-spreading animal disease outbreak. Even if such an event occurred, some of the additional powers might not be used. The Bill would, however, provide Scottish Ministers with maximum flexibility in bringing a virulent disease quickly under control. In seeking to eliminate such a serious disease outbreak quickly, Scottish Ministers would be guided by scientific and veterinary advice at the time, taking into account, for example, technical advances in diagnosis or in vaccination.
• That the Bill would focus on farm animals such as cattle, sheep, goats, pigs, poultry and farmed deer, not domestic or companion (pet) farm animals such as dogs, cats, etc or horses. However, the susceptibility of any animal to a major exotic disease outbreak would have to be considered at the time.
• That some provisions would mirror animal health legislation already passed at Westminster for England and Wales: the Animal Health Act 2002. Broadly speaking the principles of disease control are consistent across GB because, in veterinary terms, GB is a single epidemiological unit.

Learning Lessons

5. The Scottish Executive's Response of November 2002, to the 3 main FMD Inquiries that considered aspects of the disease outbreak of 2001, provided a framework for:

• keeping out infectious agents of exotic animal disease;
• reducing livestock vulnerability by reforms in industry practice; and
• minimising the impact of future disease outbreaks.

6. The Response also outlined the significant work programme for each of these areas, including a commitment to develop further contingency planning for major disease outbreaks and parallel legislation. Collectively the aim of the contingency planning arrangements, and the legislation that supports them, is to minimise the scale and impact of any outbreak and the number of animals which must be slaughtered.

Slaughter to prevent spread of disease

7. The 1981 Act provides powers to Scottish Ministers to slaughter animals infected with specified diseases. The diseases are specified in section 31 of the Act:

• cattle plague;
• pleuro-pneumonia;
• foot-and-mouth disease;
• swine fever; and
• diseases of poultry.

8. Schedule 3 of the 1981 Act (which is referred to in section 31 of that Act) contains the detail of the powers. The Schedule sets out the powers for each of the specified diseases. Generally the powers extend to slaughtering animals which have been affected, are suspected of being affected, been exposed to the disease or have come into contact with other animals with the disease. However, the powers differ slightly (between each specified disease) in terms of the tests to be applied prior to exercising them. The reasons for this is the characteristics of the particular disease. For example, in relation to cattle plague, Scottish Ministers are compelled (under the Act) to slaughter animals affected by cattle plague whereas, in relation to FMD, the Scottish Ministers are not so compelled but may slaughter if they "think fit". Also, as an example of the differences, in the powers in relation to cattle plague, Scottish Ministers have discretion to slaughter animals that have come into contact with an affected animal for the purpose of "preventing the spreading of cattle plague". A similar power in relation to pleuro-pneumonia does not have the condition of prevention of spreading the disease.

9. The proposed new Animal Health and Welfare (Scotland) Bill amends the 1981 Act. Section 1 (inserting a new section 32E and a new Schedule 3A into the 1981 Act) would extend the power in the 1981 Act to enable farm livestock animals (sheep, cattle, pigs, goats, poultry, farmed deer and other cloven hoofed, mainly of the deer family, animals) to be slaughtered with a view to preventing the spread of FMD, Avian Influenza, Swine Fever and other similar fast spreading diseases were they to take hold in Scotland. Slaughter would be on the basis of the then current scientific and veterinary advice. It would be immaterial whether or not the animals were affected with the relevant disease; were suspected of being affected; were or had been in contact with affected animals; had been exposed to the infection; or had been treated with vaccine or serum or both against the disease.

10. In other words, Scottish Ministers could, if considered necessary, adopt a slaughter policy to ring-fence disease beyond a disease infected area (see below). Such a disease defensive policy is particularly relevant to FMD where the virus has been known to spread over 180 Km in certain wind conditions. This policy would allow the slaughter of animals for precautionary and possibly preventative reasons usually, but not always (given climatic or other veterinary related reasons), close to an infected area. That slaughter could be deemed necessary by Scottish Ministers in order to prevent the disease from spreading more widely to the rest of the country.

11. This list of potentially trans-national, serious and rapid spreading animal diseases could be amended by secondary legislation (by Order). Compensation would be payable for an animal necessarily slaughtered under these new provisions, the rate being determined, and set out in an Order, at the time of the relevant disease outbreak.

QUESTION 1: Do you agree that Scottish Ministers should have greater flexibility of action to deal with foreign, fast spreading animal diseases?

QUESTION 2: Do you agree that, if considered necessary and taking into account veterinary advice, this should include culling animals close to an area already affected by a fast spreading disease?

Slaughter of treated animals

12. Protective vaccination (animals that are vaccinated against disease and intended to live) is the preferred option of Scottish Ministers. However, in a fast moving disease situation, it may be necessary or appropriate to slaughter vaccinated animals. One of the difficulties with any decision to slaughter a vaccinated animal is that it can be argued that slaughter is unnecessary because the animal cannot be said to be exposed to or affected by the disease against which it has been vaccinated. However, we believe, for the reasons given below, that a power is needed to allow for the slaughter of vaccinated and/or serum treated animals.

(a) Where the infection is "masked" by the vaccination

It is possible that a vaccinated animal has already become infected with the disease and that the vaccine is masking its effect. This is the "carrier state" where the animal, which has been both infected with live virus and vaccinated, may develop a sub clinical infection. The concern, in disease control terms, is not with the individual animal but how infective it may be to others. While this is considered to be of low probability with the known strains of, for example, FMD virus, it is possible that a future strain may show a greater tendency to produce the "carrier state".

(b) To allow the disposal of slaughtered animals to be staggered

Scottish Ministers might wish to vaccinate animals to control the spread of disease and decide to slaughter those vaccinated animals at a later stage. Such a vaccination policy could be necessary where the main disease control effort is elsewhere. Logistical problems associated with a high rate of slaughter in the country and disposal of a large number of animals could be eased by slaughtering vaccinated animals at a later time.

(c) International trade

Under the international animal health trade rules that govern export to other countries, it is possible to allow the resumption of FMD free status 3 months after the slaughter of the last animal vaccinated against FMD. This is in contrast to the 6 month period required (from the last outbreak or completion of vaccination, whichever is later) if animals are vaccinated and allowed to live out their economic lives. These requirements reflect the importance of minimising the risk of disease transmission. A power to slaughter vaccinated animals would therefore permit earlier resumption of trade and associated economic benefits. This could be very important, particularly to livestock industries in Scotland which can be dependent on high added value export markets.

13. Section 2 of the draft Bill (inserting a new section 16B into the 1981 Act) provides a power to slaughter a vaccinated or serum (or both) treated animal for the purpose of preventing the spread of certain diseases or in certain circumstances such as those described in the paragraph above, e.g. for international trade reasons. The owner of such a slaughtered animal would be compensated, the rate being determined, and set out in an Order, at the time. A decision on the level of compensation cannot be made until the exact circumstances of the particular animal disease outbreak are known.

QUESTION 3: Do you agree that under certain circumstances, such as those described at a to c above, vaccinated animals may be slaughtered?

Biosecurity Codes

14. Good biosecurity is fundamental to the prevention of animal diseases occurring or spreading to other animals and to humans. Section 3 of the draft Bill (inserting sections 6C and 6D into the 1981 Act) provides a new power to allow Scottish Ministers to issue "Biosecurity Codes". Currently, under section 3 of the Agriculture (Miscellaneous Provisions) Act 1968 (c.34), Scottish Ministers, after consultation, may issue Codes containing recommendations on the welfare of livestock situated on agricultural land. Livestock is defined in section 8 of that Act as follows: "Any creature kept for the production of food, wool, skin or fur or for use in the farming of land for such purpose as the Minister may by order specify." A breach of any provision of a Code issued under section 3 of the 1968 Act does not constitute a criminal offence. Such a breach may, however, be relied upon in a prosecution under section 1 of the 1968 Act. It is an offence under section 1 for a person to cause unnecessary pain or distress to livestock situated on agricultural land.

15. In November 2002 the Parliament approved a Biosecurity Code ("Codes of Recommendations for the Welfare of Livestock: Animal Health and Biosecurity"). This was made under the 1968 Act. It is proposed that Part 1 of the 1968 Act will be revoked by means of this Bill.

16. The power now proposed would allow Scottish Ministers to make a number of Biosecurity Codes to deal with a range of scenarios concerning particular animal diseases and groups of animals. For example, Scottish Ministers may need to issue a separate Code for livestock animals and a separate one for companion (pet) animals. Similarly, it may be considered prudent to issue separate Codes for individual animal diseases depending upon the threat each disease presents. Biosecurity Codes will be of particular significance during a serious animal disease outbreak but their provisions will also apply on a day to day basis, i.e. when there is no exotic or fast spreading disease in the country. The intention is to ensure that any Code issued should apply to persons who own, keep or are in charge of animals. To that extent it is irrelevant whether the animals are kept on agricultural land or not.

17. It is proposed that the new power to issue Biosecurity Codes will be by Statutory Instrument and be subject to consultation with the appropriate industry bodies. Where there has been an outbreak of a notifiable disease that is subject to the provisions of the 1981 Act and which requires either a new Code or an amendment to an existing Code to deal with the outbreak, it is proposed that Scottish Ministers will have the power to make either an Ordinary Order or an Emergency Order. An Emergency Order could be necessary in the event of a new, particularly virulent disease suddenly emerging. Such an Emergency Order would allow Scottish Ministers to make the Statutory Instrument at a time of disease emergency without the requirement to consult interested parties. The Emergency Order would cease to have effect at the end of 28 days beginning with the date on which it was made unless, before the expiry of that period, the Order had been approved by the Parliament.

18. We propose that the new Biosecurity Codes should go beyond having a mere guidance function. We are seeking to give Ministers the power to make the Codes in a way that will require mandatory compliance with some matters in the Code, the breach of which would result in criminal offences. There may be other parts of the Code which would be for guidance only. The Code would make this distinction clear. Thus some parts of the Code will be mandatory and subject to criminal offence in the ordinary course, i.e. without there being an outbreak of disease. Most of these offences already exist, for example, swill feeding is banned. However, the power being sought will be flexible enough to allow certain parts of the Code to provide guidance, while there is no notification of outbreak of disease, but that in the event of disease notification (such as FMD) then the relevant parts of the Code would become mandatory and failure to observe them would be an offence.

QUESTION 4: Do you agree that there should be criminal offences that apply to the new Biosecurity Codes?

Animal gatherings

19. Places such as markets, fairs, exhibitions, shows and other places where animals are gathered or are sold can result in animal disease being spread quickly across distances. This is due to the close contact of animals from a variety of places around Scotland and elsewhere followed by the onward movement of those animals to a number of locations around Scotland or further afield. A similar animal disease risk is associated with animal dealers.

20. There are a number of provisions contained in existing secondary legislation with regard to the regulation of markets. These are contained in:

• The Markets, Sales and Lairs Order 1925 (S.I. 1925/1349) as amended.
• The Welfare of Horses at Markets (and Other Places of Sale) Order 1990 (S.I. 1990/2627).
• The Welfare of Animals at Markets Order 1990 (S.I. 1990/2628).
• The Disease Control (Interim Measures) (Scotland) Order 2002 - see Schedule 2 (S.S.I. 2002/221).

21. We now propose to amend the 1981 Act (section 8) in relation to the movement of animals to give Scottish Ministers the power to license "animal gatherings". This proposal is to extend licensing to any gathering of animals at a market, fair, exhibition, show or other place or sale. The proposal for licensing would also apply to any person who deals in animals. A dealer may purchase animals for onward sale (i.e. physically takes possession of the animals) or may act as an intermediary in a transaction for the sale and purchase of animals. A farmer would not be regarded as a dealer for these licensing purposes where that farmer's principal business on a farm is the raising of livestock for the purpose of sale either for slaughter or breeding purposes.

21a. The main purpose of the power is to address concerns about the possible spread of diseases such as FMD among livestock, ie principally sheep, cattle, pigs and goats. Events such as Common Ridings, Pony Club Gymkhanas, etc would not normally be subject to licensing. Licensing would apply to situations where, on the basis of veterinary advice Ministers believe that the risk of disease spread is possible.

22. Section 4 of the draft Bill (inserting section 6E into the 1981 Act) provides a power to license animal gatherings in a way which would allow the supervising authorities (the State Veterinary Service) the flexibility to ensure that conditions attached to licences are appropriate for the individual places where the animals are gathering.

23. The intention is that the person who will be responsible for applying for a licence is, in the case of an animal gathering, the person who proposes to hold the animal gathering; and in the case of a dealer, the dealer. Breaches of the licence will be subject to the penalties to be introduced into the 1981 Act by section 13.

QUESTION 5: Do you agree that animal gatherings (including animal dealers) should be licensed to operate?

Tests and samples

24. Section 5 of the Bill (inserting section 6F into the 1981 Act) provides clearer powers for inspectors, appointed by Scottish Ministers, to undertake tests and samples to ascertain whether or not animal disease exists or has existed on any land, in any building or other place.

QUESTION 6: Do you agree that inspectors should have powers to check for animal disease and, if necessary, take samples for analysis?

Treatment

25. Section 16 of the 1981 Act provides for the treatment, with serum or vaccine or both, of any animal or bird:

• which has been in contact with a diseased animal or bird;
• which appears to Scottish Ministers to be or to have been in any way exposed to the infection of disease; or
• which is in an infected area.

26. The term "infected area" takes its meaning from section 17 (powers as to infected places and areas) of the 1981 Act. Serum contains disease antibodies, whilst vaccine contains antigen (which is any substance which is capable of triggering an immune response - usually a foreign protein in the context of animal disease) to stimulate the production of antibodies in the treated animal.

27. Section 6 of the proposed Bill (amending section 16 of the 1981 Act) would enable Scottish Ministers, if necessary, to extend such treatment (serum or vaccine or both) beyond an infected area to permit the compulsory treatment of animals elsewhere. Such a policy could be integral to the welfare of these animals and could form part of the strategy to stop disease spreading.

28. A good example of the possible application of such policy is found in the EUFMD Directive (2003/85/ EC). This allows for a programme of vaccination where animals are vaccinated to protect them from infection and allowed to live out their normal economic lives. As the animals are protected from infection, they cannot transmit the disease to others. This type of vaccination, known as "protective vaccination", takes place in a defined area known as the vaccination zone. The vaccination zone is not restricted to the infected area (the infected area is the extent of the Protection Zone and the Surveillance Zone, which are the preferred terms in the Directive). The extent of the vaccination zone will be determined by the epidemiology of the disease together with geographical and meteorological factors.

29. For other diseases the detail may vary but in general a protective vaccination programme may well require vaccination to take place outwith the infected area in order fully to protect the maximum number of animals. However, in the case of a suppressive vaccination campaign, where animals are vaccinated and then killed, this can only be applied within a Protection Zone, and thus we believe that the existing powers are insufficient.

QUESTION 7: Do you agree that it should be possible to vaccinate or treat an animal beyond the current area limit?

Specified diseases

30. Section 7 of the Bill (inserting section 28E and Schedule 2B into the 1981 Act) relates to the proposed new powers of deliberate infection of animals (new section 9). The Schedule lists those very fast spreading exotic diseases that can have a significant impact on a country if an outbreak occurs. The list of diseases can be changed by an Emergency Order. This Order would cease to have effect at the end of 28 days beginning with the date on which it was made unless, before the expiry of that period, the Order had been approved by the Parliament.

QUESTION 8: Do the 15 specified diseases (listed in Schedule 2B of the Bill) adequately cover any offence under section 9 (deliberate infection of animals with disease)?

Seizure and disposal of carcases etc

31. Section 35 of the 1981 Act enables Scottish Ministers to make an Order to seize anything which appears to them might carry or transmit any specified disease, for example, swine-fever (see section 31); other diseases besides those referred to in section 31; or others in section 88. We need additional powers on the disposal of carcases, or products from them, following slaughter under the new powers - where it cannot be shown that disposal would prevent the spread of disease (see section 35(1) of the 1981 Act). Section 8 of the Bill (inserting new section 36ZA into the 1981 Act) therefore makes provision for Scottish Ministers to make an Order to allow for the seizure and disposal of carcases etc following the exercise of the extended power of slaughter of animals; or after any necessary slaughter of vaccinated or treated animals; or slaughter for Transmissible Spongiform Encephalopathy ( TSE) purposes (see below for TSE proposals). Section 8 (inserting new section 36ZB into the Act) also provides for the payment of compensation.

QUESTION 9: Do you agree that it is necessary to clarify and extend the powers to seize and safely dispose of carcases?

Deliberate infection of animals

32. During the 2001 outbreak of FMD there were unconfirmed reports that infected tissue could be supplied to enable disease to be established at livestock premises so that the owners of those premises could obtain compensation for their animals that would require to be slaughtered. We believe the seriousness of deliberately infecting an animal, both on animal welfare grounds and due to the risk of serious disease spread, requires legislative action.

33. Section 15(1) of the 1981 Act provides that any person having in his possession or under his charge an animal affected with disease shall, as far as practicable, keep that animal separate from animals not affected and with all practicable speed notify a police constable in the police force in which the animal is affected. "Disease" in this case is defined in section 88 of the 1981 Act as meaning cattle plague, pleuro-pneumonia, FMD, sheep-pox, sheep scab or swine fever. Section 88(2) contains an Order making power to enable the extension of the definition of disease. A recent example of the exercise of this power can be found in the Bluetongue (Scotland) Order 2003 (S.S.I. 2003/91).

34. Section 15(7) of the 1981 Act provides that a person is guilty of an offence if, without lawful authority or excuse, he fails to keep a diseased animal separate so far as practicable or fails to give notice of disease with all practicable speed. This provision is directed at separating diseased animals from healthy ones. However, we also believe there should be a power to deal with any wider mischief of deliberate infection of healthy animals.

35. Section 9 of the draft Bill (inserting new sections 28C and 28D into the 1981 Act) creates a new offence of knowingly doing anything which causes or is intended to cause an animal to be infected with a specified disease (for a list of the diseases see sections 7 and 9 which inserts section 28E and Schedule 2B in to the 1981 Act). The diseases specified in the new Schedule 2B are all fast spreading with significant consequences on society. It is proposed that the list of these specified diseases would be capable of being modified by Order of the Scottish Ministers. As there may be a need to respond quickly to a disease outbreak and therefore the need to add a new disease to the list, it is also proposed that the Parliamentary procedure would allow an Emergency Order to be laid before the Parliament. This Emergency Order would cease to have effect at the end of 28 days beginning with the date on which it was made unless, before the expiry of that period, the Order had been approved by the Parliament.

36. Anyone found guilty of committing this new offence of deliberate infection of an animal would be subject to the penalties set out in new section 75 as substituted into the 1981 Act by section 13 of the Bill. Section 28E provides that, following conviction, any compensation paid to the person for animals that had been slaughtered on his premises on account of deliberate infection, will be repayable by that person. Similarly, following conviction for deliberate infection, any compensation that would otherwise be payable to that person would not be payable. To take an example, if a farmer has 3 premises in different parts of the country but is convicted of an offence of deliberate infection against animals at only one of those premises, then it will only be the compensation for the animals on that proved, deliberately infected premises that will be subject to non-payment or recovery of compensation.

37. In addition, Scottish Ministers propose that the court will have the power to disqualify a person found guilty of an offence of deliberately infecting an animal from keeping or dealing in any animals or any animals of a specified kind (see section 28D). The disqualification Order would be capable of suspension to enable arrangements to be made for keeping the animals to which the disqualification relates and also pending an appeal. Provision would also be made to allow a person subject to a disqualification Order to apply to the court for its revocation or variation. The court could refuse the application, vary or revoke the Order and could have regard to the offence, the character of the applicant and his or her conduct following the imposition of the disqualification. The disqualification provision would additionally specify that keeping or dealing in an animal includes:

• having custody or control of an animal; and
• being concerned in the management or control of a body (whether or not incorporated) whose activities include keeping or dealing in animals.

QUESTION 10: Do you agree that it should be a crime to infect deliberately an animal with a disease?

QUESTION 11: In the above circumstances, do you agree that the courts should have the power to ban those convicted from future keeping of, or dealing in, animals?

Livestock genotypes: identification, breeding and slaughter

38. Section 10 of the Bill (inserting Part 2B into the 1981 Act) deals with Transmissible Spongiform Encephalopathies ( TSEs) which are found in a number of animal species and cause changes to the brain and nervous system leading to death. Whilst scientific knowledge of TSEs is limited to sheep at the present time, Section 10 seeks to provide enough flexibility to deal with other species of livestock (a definition is given in section 36W of Part 2B). BSE, a form of TSE, in cattle was first identified in 1986 and has serious implications for public health. Both European and domestic legislation is now in place to minimise the risk to the public. Scrapie is a TSE of sheep and goats, which has been endemic in GB for over 250 years. Scrapie does not have implications for public health but there is an acknowledged risk that sheep and goats could have been exposed to the same infected feed as cattle - and BSE in sheep, if present, would pose a threat to human health.

39. There is presently no vaccine or cure for TSEs. It is possible to identify whether sheep are naturally resistant or susceptible to Scrapie by testing a blood sample or tissue containing the animal's DNA. The gene that controls resistance or susceptibility to Scrapie and experimentally induced BSE in sheep is called the prion protein (PrP) gene. Control of TSEs in sheep is possible by selective breeding to increase the levels of natural genetic resistance. This underpins both UK and EU breeding programmes currently underway to control TSEs in sheep.

40. The EU also requires Member States to draw up contingency plans for the possibility of BSE being discovered in small ruminants. A UK contingency plan and local action plans have been drawn up. There is no live test for TSEs in cattle, sheep or other livestock species (animals must first be slaughtered and then their brains examined). Consequently disease control measures to protect human health in a BSE in sheep crisis would be based on a slaughter and/or breeding programme, i.e. at present sheep only. A breeding programme would be set up where rams and breeding ewes would be genotyped and animals capable of being infected by a TSE would be slaughtered. Certain groups of animals such as cull ewes and castrated male lambs would be slaughtered without genotyping since it would not be financially viable to test or breed from these animals. Powers in the Bill would be used if TSEs were found in sheep and goats or another livestock species which had an implication for human health.

41. In essence, the proposed new Part 2B of the 1981 Act provides powers to:

• specify TSE susceptible livestock genotypes;
• ascertain, by sampling, genotypes and identify livestock;
• place restrictions on breeding;
• review the above restrictions;
• enforce the restrictions if not undertaken;
• specify offences if the restrictions are not followed;
• slaughter livestock susceptible to TSEs;
• gain entry to premises; and
• have Parliament approve the measures.

QUESTION 12: Do you agree with Scottish Ministers' proposed powers to deal with TSEs?

Powers of entry etc

42. The draft Bill deals with powers to prevent or limit a fast spreading exotic animal disease. It may therefore be necessary to enter land or premises to take action under these powers. Entry may be necessary as a matter of urgency because of the nature of the disease.

43. The 1981 Act contains the following powers relating to entry land or premises:

• section 16 - for the treatment (by vaccine or serum or both) of animals after exposure to infection;
• section 22 - to deal with diseased wild animals other than those with rabies;
• section 30 - to make tests and take samples from animals that may have links with risks to human health;
• section 62 - police powers to enter vessels, boats, aircraft or vehicles in relation to arrest and rabies disease;
• section 63 - to enable an inspector to enter any land, shed, building or place where a disease exists or has existed for the last 56 days, or where compliance with the 1981 Act (or Order or regulation made thereunder) is not being met;
• section 64 - to enable an inspector to enter any pen, shed, land or other place for the purpose of ascertaining if there is disease in poultry;
• section 64A - to enable an inspector to ascertain compliance with European Community obligations.

44. There are also Order making provisions in the 1981 Act that allow Scottish Ministers to make secondary legislation (such as for FMD) which can provide for further powers of entry. For example, specific reference to powers of entry can be found at section 19(2)(a) and section 20(1)(e). The duty to enforce the 1981 Act under section 60 provides a police constable with the implied power to enter premises for that purpose. Section 66 of the 1981 Act creates an offence of refusing to allow an inspector or other officer to enter land or obstructing the entry into land.

45. Section 11 of the Bill (inserting new sections 62G to 62I into the 1981 Act) clarifies the powers of the 1981 Act whereby an animal health inspector can gain entry to any premises, land, building, or other place where animals are or were located. This would be subject to there being reasonable grounds to seek entry and, if necessary, the issue of a time-limited (one month) warrant or notice of intention of obtaining one. Reasonable force could be used and, if urgent, e.g for disease assessment, entry could be gained at any time. The purpose of entry would be to examine animals for any disease; slaughter or vaccinate or treat the animals if necessary; take blood or other samples for analysis; or monitor the animals for disease. The inspector would be able to take with him other persons or equipment which he considers necessary to assist in any of the above tasks. The inspector would be able to call on the assistance of the occupier of the premises or a person appearing to have charge of the animal.

QUESTION 13: Do you agree that these powers of entry are needed?

Inspection of vehicles

46. A key component in the strategy to deal with a fast spreading animal disease is for Scottish Ministers to declare an area as a Infected Area ( IA) in which a number of animal disease containment measures are imposed. The relevant provision in the 1981 Act is section 17. The boundaries of any IA are defined by recognisable geographical features (such as roads; rivers, forests, etc) and the size of the area is determined following a veterinary assessment of risk of disease spread. An area is designated as an IA by an Order made by Scottish Ministers and would be at least 10 km from the nearest farm/premises with confirmed disease. The designation of an area as an IA is usually for a limited period of time, as declared in the Order, which is determined by how quickly the disease is brought under control.

47. We believe the power to stop and search any vehicle within an IA is a vital disease containment measure. It is proposed that this power would be used to ascertain whether any provision under the 1981 Act, an Order made under the Act or Regulation made by a local authority under such an Order is being met.

48. Under section 60(2) of the 1981 Act, where a person is reasonably suspected of being engaged in committing an offence under the Act, he may be stopped and detained by a police constable without a warrant. A vehicle may be stopped, detained and examined by a police constable under section 60(4). These provisions are in addition to any other powers available to a constable.

49. Section 63 of the 1981 Act gives the powers of police constables to inspectors acting in place of a constable. Specifically, an inspector has the power to enter, among other things, a vehicle where he has reasonable grounds for supposing that a person is not complying with the 1981 Act. There is also a specific power given to inspectors at section 64A allowing an inspector to enter, among other things, any vehicle and inspect it to check compliance with EU Community obligations made by Order under the 1981 Act. With the exception of the very specific Community directed provision, there needs to be reasonable suspicion of an offence before a vehicle can be detained.

50. The 1981 Act confers powers on police constables and inspectors in addition to their common law powers. A warrant is required to carry out a search unless the search can be justified on the grounds of urgency or necessity.

51. Section 12 (inserting new section 65B into the 1981 Act) proposes a power to enable an inspector to stop and search any vehicle within an IA to ascertain whether any provision under the 1981 Act, or Order made under the 1981 Act or any local authority Regulation made under an Order is being met. This power would be used when Scottish Ministers consider it necessary to ensure proper containment of a fast spreading disease. An inspector would only be able to exercise this power where a police constable in uniform was present. It is important to emphasise that the power would only be available within the IA, within the designated time period set by the Order and be carried out by inspectors appointed by Scottish Ministers.

QUESTION 14: Do you agree that vehicles can be stopped in a disease infected area, with police in attendance?

Offences: penalties and time limits

52. Section 13 of the Bill (substituting section 75 of the 1981 Act) revises and brings up-to-date the penalties (financial and/or custodial) for existing animal health offences committed under the 1981 Act and for the new offences detailed in the draft Bill.

53. Under the 1981 Act there are specific provisions dealing with the punishment of offenders. There is a general provision (section 75) which it is considered no longer reflects modern sentencing practice and policy and has become needlessly confusing. This applies equally to the specific provisions. A straightforward and modernised provision for fines and/or imprisonment for offences committed under the 1981 Act is therefore proposed. On summary conviction, that will be imprisonment for a term not exceeding 6 months, or a fine not exceeding level 5 on the standard scale fixed by the Criminal Procedure (Scotland) Act 1995, or both.

54. The general provision also provides that all offences under the 1981 Act shall be liable only to summary conviction unless a separate provision has been made. Experience in enforcing the 1981 Act has shown that not all offences committed under the Act become known to the enforcing authority until late into, and sometimes beyond, the 6 month limit. The updated section 75 of the Act would enable a prosecution to be raised within 6 months of the contravention coming to the attention of the enforcement authority. However, proceedings could not be brought more than 3 years after the offence was committed. Section 136 of the Criminal Procedure (Scotland) Act 1995 will not apply.

QUESTION 15: Do you agree that animal health legislation should reflect more up-to-date sentencing policy for offences that are committed?

Section 91 amendment

55. We have received representations from some local authorities that section 91(2) of the 1981 Act is outdated and is an inefficient use of resources because it duplicates effort through all local authorities. Section 91 provides for two methods of publication of Orders. Sub-section (1) requires Scottish Ministers to publish details of Orders made by them in the London and Edinburgh Gazette. Sub-section (2), on which the representatives have been made, places a duty upon every local authority to publish, at their own expense, Orders, licences and other instruments sent to them by Ministers. The method of publication may be as directed by Scottish Ministers or, if there is no such direction, by advertisement in a local newspaper. Given technological advances in communication over recent years, this process seems outdated.

56. We therefore propose, in Schedule section 2 to delete section 91(2) - no section has yet been drafted - to remove the requirement that local authorities publish Orders and other documents made under the 1981 Act.

QUESTION 16: Do you agree with the proposed revised arrangements for publishing legal matters?

Repeated use of animal samples

57. Many thousands of blood samples are taken each year from cattle in Scotland for brucellosis (a major cause of abortion) surveillance under the existing brucellosis legislation: the Brucellosis (Scotland) Regulations 2000 (2000/364). See Regulation 7 ("Sampling of milk for testing for evidence of the existence of brucellosis"); Regulation 8 ("Testing of bovine animals or steers for brucellosis"); and Regulation 22 ("Powers of veterinary inspectors and inspectors").

58. Another existing statutory disease surveillance example relates to infestations of cattle, deer and occasionally horses by warble flies. The relevant legislation is the Warble Fly (Scotland) Order 1982 (1982/207), Article 5 ("Veterinary inquiry and service of notices"). That Article was amended by the 1995 Amendment Order (1995/2042). The legislation provides that a veterinary inspector may carry out examinations and tests and take samples to ascertain whether cattle have been infested with the disease.

59. We now intend to seek a power to enable the use of samples (blood, tissue, etc) already taken for existing animal disease statutory surveillance purposes, for other animal disease surveillance and/or disease control purposes. The hope is that, in practice, owners of animals will give their consent to this secondary testing of samples taken already from their animals. Nonetheless, Ministers plan to use these powers, if necessary, without the consent of the owner of the animals. These samples would be under the safe keeping of the State Veterinary Service ( SVS) but be owned and their use controlled by Scottish Ministers.

60. Please note there are no draft sections for these proposed powers at present. Work is on-going, and comments on this proposal will be of assistance.

61. In the future, Scottish Ministers may wish to develop a particular disease control strategy targeting, say, a non-notifiable disease. As things stand, the SVS would have to duplicate the blood sampling effort to take samples on a voluntary basis, thus wasting time and money. It seems difficult to argue against keepers of animals who ask why the SVS, operating on behalf of Scottish Ministers, cannot use the blood samples already taken.

62. From a veterinary perspective there are therefore significant advantages to be obtained from introducing a power that would allow Scottish Ministers to use samples taken for statutory disease surveillance for further diagnostic work. Such a power would have a positive impact on the welfare of animals as they would be handled less as repeat sampling would not be required. There would also be staff and cost savings and most importantly Scottish Ministers would have a resource available which could be used to determine the health status of the national herd and flock if there was good reason to do so. This could be very helpful in pursuing the aims of the Animal Health and Welfare Strategy which in Scotland will involve the setting of targets for the reduction and eradication of specific diseases. In order to measure the success of such schemes Scottish Ministers need to produce a baseline of the current disease situation. The availability of samples for multiple testing would greatly enhance Scottish Ministers' ability to undertake this work.

63. There are seemingly no negative implications to the above approach from a veterinary perspective. However, it is recognised that it will be important to keep control of the samples that have been obtained and to regulate closely any work that is undertaken on them. It will also be very important to consider carefully the consequences, for Scottish Ministers, the owner of the animals, as well as the wider community, if another serious disease is found in later diagnostic work on samples already taken for existing statutory disease surveillance work.

QUESTION 17: Do you agree that animal samples already taken can be used again for other diagnostic purposes - if necessary without the animal keeper's consent?

Animal Health Provisions: Summary of questions and the sections which they relate to

« Previous | Contents | Next »