Draft Animal Health and Welfare (Scotland) Bill Consultation

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PART 2: ANIMAL WELFARE

Background

1. The welfare part of the Bill modernises, strengthens and consolidates for Scotland animal welfare legislation from 1912 relating to animals that are commonly domesticated in the British Islands, are under the control of man on a permanent or temporary basis, or not living in a wild state. This will implement the Executive's Partnership Agreement commitment to introduce a Protection of Animals Bill into the Scottish Parliament by 2007.

Consultation

2. On 21 March 2003 the Scottish Executive issued a consultation on proposals to amend the Protection of Animals (Scotland) Act 1912. These proposals aimed to address the specific problem of the lack of statutory powers available to local authorities to remove neglected farm livestock which are suffering or at risk of suffering, to a place of safety. The responses from a number of organisations to that paper showed a clear desire for a much wider reform of our existing animal welfare legislation.

3. Ministers agreed to expand the scope of this proposal and to undertake a wider review of existing animal welfare legislation. This review was undertaken in another consultation document, "Proposals to revise existing animal welfare legislation", issued on 31 March 2004. It raised a series of 19 topics relating to the existing legislation, and gaps in that legislation, on the welfare of all animals (including domestic pets) for which man is responsible, including managing, or in any way keeping an animal, including buying, selling and transporting.

4. The basis of the review was the following existing legislation:

  • The Protection of Animals (Scotland) Act 1912 and amendments
  • Performing Animals (Regulation) Act 1925
  • Pet Animals Act 1951
  • Cockfighting Act 1952
  • Abandonment of Animals Act 1960
  • Animal Boarding Establishments Act 1963
  • Riding Establishments Acts 1964 and 1970
  • Agriculture (Miscellaneous Provisions) Act 1968 - Part 1
  • Breeding of Dogs Acts 1973 and 1991
  • Dangerous Wild Animals Act 1976
  • Animal Health Act 1981
  • The Deer (Scotland) Act 1996
  • Breeding and Sale of Dogs (Welfare) Act 1999.

5. This review did not cover the Dangerous Dogs Act 1991, dog fouling or the Protection of Wild Mammals (Scotland) Act 2002. It specifically excluded the welfare of animals in scientific experiments, a reserved matter which is the responsibility of the Home Office.

6. A total of 325 responses were received to the consultation. These were obtained from all the main stakeholder groups within the different subject areas, many of which discussed each of the subjects in the document. Many were substantial documents, and it was very clear that responders had taken much time and effort to consider and analyse the proposals. The subject of docking and mutilations received a total of 232 responses. All other subjects received between 55 and 103 responses. These were analysed and published in 'Analysis of responses to the consultation document "Proposals to revise existing animal welfare legislation"', on 28 February 2005. This document confirms that there was a widespread belief that there was a need to modernise and update the existing animal welfare legislation. Responders generally welcomed this process with enthusiasm and support. Their comments, which in many cases provided a great wealth of detail, have played a key role in the development of this Bill and also the regulations and Codes of Practice which will be made under it.

Key elements of the welfare provisions

7. The welfare part of the Bill will:

  • Strengthen a number of substantive provisions in the existing legislation: strengthen the specific offence of animal fighting by extending the prohibited activities, a number of which can be committed without a fight actually taking place; strengthen the cruelty offence; it will strengthen the offence on the abandonment of animals, so that it will be a welfare rather than a cruelty offence;
  • Introduce an offence for the failure to take reasonable steps to ensure the welfare of animals (the duty of care);
  • Raise the age at which young people can be sold animals to 16 years;
  • Introduce a prohibition on the giving of animals as prizes unless in a family context;
  • Allow Scottish Ministers to make regulations to regulate or prohibit a variety of matters, and also to make Codes of Practice providing guidance on a number of issues;
  • Repeal existing primary legislation to require the licensing of dog breeding and the commercial sale of dogs, riding establishments, pet shops, animal boarding establishments and the registration of performing animals. Legislation covering these activities will be made through secondary legislation which will require these establishments to be licensed or registered;
  • Enable a system for the licensing or registration of pet dealers, animal sanctuaries and livery stables which are not currently regulated. Scottish Ministers will be able to regulate other activities in the future;
  • Give power to local authorities or the Scottish Ministers to appoint inspectors to inspect premises where animals are kept, and these inspectors will have a range of powers in respect of arrest, powers of entry and to apply for a warrant;
  • Provide for emergency powers for the protection of animals including killing animals where they are suffering or likely to suffer if the circumstances do not change, seizure of animals, care of animals in situ or elsewhere;
  • Make provision to allow an application to be made for an order requiring the removal, care or killing of animals once proceedings for an offence under the Act or under regulations made under the Act have been commenced;
  • Give courts power to make orders upon conviction of an offence under the Act or under regulations made under the Act for the destruction or confiscation of the animal or for disqualifying the convicted person from owning or keeping animals, or orders for the removal of all animals in the care of the disqualified person.

Issues on which we seek your views

8. We are seeking your views on the welfare provisions of the attached Bill which are listed in the order as they appear in it. The questions in this part of the consultation document specifically refer to the welfare provisions in Part 2 of the Bill, and any reference to the "Bill" is to Part 2. The questions have been listed after each proposal and are summarised at the end of this Part for easy reference. We are also interested in your views on the welfare provisions of the Draft Regulatory Impact Assessment at Annex A.

9. It is proposed that the Bill will have power for regulations to be made under it. These will be consulted on at a later date, and in advance of any regulations being made. Details of the regulation making process are found in section 49.

Definitions of "animal" - Sections 14 and 15

10. In the document "Proposals to revise existing animal welfare legislation" we consulted on a broader definition of "animal" than the one we have included in the Bill. We have heard a range of views about whether crustaceans and cephalopods and other non-vertebrate animals are likely to be sentient, i.e. "having the power of sense perception or sensation; conscious", and be able to feel pain. It is our intention that the definition of "animal" should be based on the ability to have sentience and the ability to experience suffering and cruelty. However, we acknowledge that our understanding of pain and whether invertebrates can feel pain may change, and that it is important that we make provision to be able to take this into account. Scottish Ministers will be able to make regulations to change this definition so that it can be extended to include invertebrates of any description, and so that the Bill can apply to the earlier stages in the development of an animal. However, this power may only be exercised if Scottish Ministers are satisfied, on the basis of scientific evidence, that animals of the kind concerned are capable of experiencing pain or suffering. This approach will have the advantage of enabling the definition to be amended in line with scientific developments and knowledge, and without recourse to primary legislation.

11. The definition of "protected animal" in the Bill includes three types of animals: (1) animals of a kind commonly domesticated in the British Islands; (2) animals which are under the control of man, whether on a permanent or temporary basis; or (3) animals which are not living in a wild state.

12. The welfare of animals that are not defined as "protected animals" is covered by other legislation such as the Wildlife and Countryside Act 1981.

QUESTION 1: Do you agree with the definitions of "animal" and "protected animal"?

Responsibility for animals - Section 16

13. Section 16 defines who is responsible for an animal. We believe that responsibility covers a range of activities such as owning and being in charge of an animal, and that people can undertake these activities either on a permanent or a temporary basis. There can also be more than one person who is responsible for an animal. For example, a person who is in charge of an animal may not necessarily be its owner. However, we consider that an owner is always responsible for his animals, whether or not he is in charge of them. A person under 16 can have a range of responsibilities for an animal, but the responsibility for that animal should legally rest with the parent or guardian. A person should never be able to relinquish responsibility for an animal by abandoning it.

QUESTION 2: Do you agree with the definition of the person who is responsible for an animal?

Unnecessary suffering - Section 17

14. Section 17 proposes that unnecessary suffering can be caused in two ways: either by taking an action which causes unnecessary suffering, or failing to take such steps to prevent unnecessary suffering from happening. In both cases, an offence would be committed if the person should have reasonably known that their action or their omission to take action would have caused the animal to suffer. These offences will apply to all persons who have responsibility for an animal.

15. We consider that a number of factors should be taken into consideration when deciding whether suffering has been unnecessary, and provision has been made for this. These focus on the necessity, proportionality, humanity and competence of the conduct of the person who has caused unnecessary suffering to an animal. We believe that the setting out of the items or areas which should be taken into consideration when deciding whether suffering was unnecessary, is an improvement on the provisions of the Protection of Animals (Scotland) Act 1912.

QUESTION 3: Do you agree with the scope of unnecessary suffering?

Mutilation - Section 18

16. We intend that all mutilations which involve the interference with the sensitive tissues or the bone structure of an animal will be prohibited unless it is for the medical treatment of the animal. However, certain mutilations can be permitted if specified by Scottish Ministers in regulations. This will enable us to update and amend permitted mutilations more easily.

QUESTION 4: Do you agree with the definition of mutilation and with the provision that certain procedures can be carried out if specified in regulations?

Cruel operations and administration of poisons etc - Sections 19 and 20

17. The provision on cruel operations in section 19 replaces section 1(1)(e) of the Protection of Animals (Scotland) Act 1912. Under it, it is not necessary to prove that the animal suffered in order to establish liability. The provision on the administration of poisons in section 20 replaces section 1(1)(d) of the 1912 Act. It extends the liability to the persons responsible for the animal if that person had allowed another person to administer a poisonous or injurious drug or substance.

QUESTION 5: Do you agree with the scope of the offence of cruel operations and administration of poisons?

Animal fights - Section 21

18. We consider that the scope of the animal fighting offence in the 1912 Act is too narrow and excludes a range of activities that can take place in connection with an animal fight. Also, there has been some concern that the 1912 Act is unclear whether an offence has been committed before a fight has taken place. This section is based on the offences relating to animal fighting in the 1912 Act and the Cockfighting Act 1952. It has clarified them and extended the scope of their provision. For example, the possession of equipment intended for use in cockfighting has been extended to apply to all animal fights; and the types of fights which are prohibited has been extended to include the situation where a "protected animal" fights with another animal or a human. Some offences can be committed without a fight having taken place.

QUESTION 6: Do you agree with the scope of the offence of animal fights?

Promotion of welfare - Sections 22 and 23

19. We firmly believe that the needs of all animals for which people are responsible should be met, and have made provision for this in section 22. These needs include environment, diet, behaviour, socialisation, and protection from pain, suffering, injury and disease. However, we accept that in some circumstances or situations, it is not always possible for all of these to be met. This could be permissible as long as the animal is kept for a lawful purpose and any activities in relation to the animal are lawful.

20. Section 23 proposes that Scottish Ministers should be able to make regulations to ensure the welfare of animals for which a person is responsible and their offspring.

21. These regulations could specify how people responsible for animals should meet their animal's needs. They may provide a non-exhaustive list of purposes for which they can be made, including provision for enforcement, offences, penalties, post-conviction orders, conferring of powers on specified people (such as powers of entry, search, inspection and seizure), an offence of obstructing a person who is exercising their powers under the Bill, fees or other charges, and provisions for exemptions or exceptions to the regulations. A duty will be placed on Scottish Ministers to consult before they introduce regulations.

QUESTION 7: Do you agree with the provisions to ensure the welfare of animals?

Licensing etc of activities involving animals - Section 24

22. Section 24 provides that Scottish Ministers should have the power to license or register a range of activities for the purpose of ensuring the welfare of animals and their offspring. At present, licensing regimes contain many identical or similar provisions and are found in a number of statutes and secondary legislation. These have been drawn together to create a broad framework which will provide a consistent approach to the wide range of activities that require to be licensed or registered.

23. It also sets out that certain activities involving animals will only be able to be carried out under license. Scottish Ministers will determine the activities which should be licensed or registered for animal welfare purposes and will only be able to do so after appropriate consultation.

24. It includes powers for Scottish Ministers to make regulations which will enable a range of specified animal practices and activities to be licensed or registered. They will set out the procedures that should be followed in applying for licences or registration, granting and refusing applications, qualifications to be held by applicants, and other matters that are to be taken into account when considering applications. They will also cover the conditions that are to be set out in the licence or registration, for suspension or revocation of a licence or registration, appeals, and for making provision for fees or other charges.

25. The section gives Scottish Ministers further powers dealing with licences which may include provisions for enforcement, offences, penalties, post-conviction orders, the conferring of powers on specified individuals (such as powers of entry, search, inspection and seizure in connection with breaches and suspected breaches of them), an offence of obstructing a person who is exercising their powers under the Bill and for provisions for exemptions or exceptions.

QUESTION 8: Are the powers of Scottish Ministers sufficient and satisfactory to ensure that animal related activities can be adequately licensed and registered?

Prohibition on keeping certain animals - Section 25

26. Section 25 gives Scottish Ministers the power to make regulations to prohibit the keeping of certain types of animals at domestic or other specified premises, for animal welfare purposes. "Domestic premises" are defined in section 47 of the Bill.

27. This section sets down that the regulations must be made to ensure the welfare of animals covered by them. The regulations may make and include provision for enforcement, offences, penalties, post-conviction orders, the conferring of powers on specified individuals (such as powers of entry, search, inspection and seizure of animals), an offence of obstructing a person who is exercising their powers under the Bill and of provision for exemptions or exceptions.

QUESTION 9: Do you agree that Scottish Ministers could prohibit, by regulation, the keeping of any animal kept at domestic or other premises?

Abandonment - Section 26

28. Responders to the consultation document "Proposals to revise existing animal welfare legislation" agreed that abandonment should be made a specific offence, and we have made this provision in the Bill. Some of them also pointed out that it is a complex issue which covers a number of situations, and we have also reflected this in the offence.

29. Section 26 provides that a person commits the offence of abandonment in two ways: first, if they abandon an animal for which they are responsible; and second, if they leave an animal and fail to make adequate provision for its welfare.

30. This section lists the factors that should be taken into account when considering whether an animal has been abandoned. These relate to the animal itself (its kind, age, and state of health), the length of time for which it has been left and its requirements for food and water and shelter and warmth.

QUESTION 10: Do you agree with the scope of the offence of abandonment?

Sale of animals to children - Section 27

31. At present, children as young as 12 are legally able to buy an animal and concerns have been raised among animal welfare organisations and animal welfare enforcing authorities that children of this age may do so, possibly on a whim and without parental consent or knowledge. Responses to the consultation document "Proposals to revise existing animal welfare legislation" strongly supported the proposal that this age should be raised.

32. Section 27 makes it an offence for a person to sell an animal to another person who they have reasonable cause to believe to be under the age of 16 years.

QUESTION 11: Do you agree that there should be a prohibition on the selling of animals to persons under 16 years of age?

Giving animals as prizes - Section 28

33. The aim of the proposed Bill is to encourage greater responsibility towards animals and to encourage people to think carefully about taking on the responsibility of animal ownership. "Winning" an animal is inconsistent with the need for people to think carefully about an animal's welfare needs before becoming its owner or keeper. A person may well not have anticipated their ownership of the animal and have given prior consideration to the welfare needs of the animal.

34. We believe that the principle of responsible animal ownership justifies a ban on animals being used as prizes, with the only exception being where the prize is given in a family context, such as a reward for good behaviour.

QUESTION 12: Do you agree that animals should not be used as prizes unless given in a family context?

Taking possession of an animal - Section 29

35. Responders to the consultation "Proposals to revise existing animal welfare legislation" felt that it was important that animals which are suffering or are in danger of suffering are able to be taken into care. They believed that powers to undertake this action should be flexible.

36. We consider that inspectors or constables should have a number of procedures available to them when they wish to take possession of an animal, and these are set out in section 29:

(1) They can take steps which appear to be immediately necessary to alleviate the animal's suffering. This does not include destroying the animal.

(2) They may take possession of an animal if it is suffering or is likely to suffer if its circumstances do not change. This can be undertaken in two ways. Firstly, where a veterinary surgeon certifies that the animal is suffering or is likely to suffer if its circumstances do not change. In order to determine its condition, a veterinary surgeon may examine and take samples from the animal. Secondly, when action is urgent, then it can be taken by an inspector or constable without the need to wait for a certificate from a veterinary surgeon.

(3) Where an animal has been taken into possession, inspectors and constables are able to remove it, arrange for it to be removed to another place, or care for the animal at the place where it was found (in which case they can make use of any equipment taken or found at the place). In these circumstances, they may identify the animal by means of a mark, microchip or another method.

37. This section does not prejudice the abilities of an inspector or a constable to take an animal into possession with the consent of it's owner or another person who is responsible for it, and also any other authority for taking possession of an animal.

38. Provision is made that inspectors or constables should be reimbursed for all reasonable expenses incurred when taking possession of an animal.

39. It is important that inspectors and constables should be able to undertake these functions without hindrance. The Bill makes it an offence for a person to intentionally obstruct them in undertaking that work.

QUESTION 13: Do you agree with the powers that an inspector or a constable will have to deal with animals in distress?

Order for release of animals taken - Section 30

40. Where an animal has been taken into possession without the agreement of the owner or keeper then a court should be able to decide the future of that animal.

41. Section 30 provides that animals which have been taken into possession can be given up to a person who is specified in an order made by a court. It sets out the procedures that have to be followed for making that order. It also describes who can apply for an order (the owner of the animal or any other person appearing to the court to have a sufficient interest in the animal), as well as those entitled to be heard in relation to an application (by another person) for an order (the owner of the animal, an inspector, a constable who took the animal into possession or is caring for or has arranged for the care of the animal, a person with whom an arrangement for the care of the animal has been made, and a person who is authorised by the Scottish Ministers in relation to the application).

42. Before making an order, the court must take into consideration how to protect the value of the animal and minimise any expenses which need to be reimbursed.

QUESTION 14: Do you agree with the powers that are available to courts to deal with animals taken into possession?

Other orders relating to animals taken - Section 31

43. Section 31 sets out that an order for animals taken into possession may specify certain actions and provisions, such as specified treatment for the animal, for its destruction, sale (any money obtained as a result of the sale of an animal may be used to offset expenses incurred in carrying out an order) or other method of disposal.

44. This section sets out the procedures for making these orders. Before a court makes an order it must give the owner of the animal the opportunity to make representations except where it is not practicable to do so, and it must consider how to protect the value of the animal and to minimise any expenses which need to be reimbursed. The order may appoint a person to carry it out, and provide for the reimbursement of any expenses and any other provisions which the court considers to be appropriate.

45. It also specifies who can apply to the court for an order (i.e. the owner of the animal, an inspector, a constable who took the animal into possession or is caring for the animal or has arranged for its care, a person with whom an arrangement for the care of the animal has been made and who is authorised by the Scottish Ministers or any other person appearing to the court to have a sufficient interest in the animal). If the application is not made by another person within a period of 14 days after the animal was taken into possession, then an inspector must make an application. The section also specifies the people who are entitled to be heard in relation to the application for the order.

QUESTION 15: Do you agree with the extent of the powers that are available to courts to deal with animals taken into possession?

Resort to the destruction of animals - Section 32

46. We believe that it is necessary to describe the provisions under which a "protected animal" should be destroyed. Section 32 sets down a framework of provisions which allows this action to be undertaken by a range of people, namely an inspector, a constable and, exceptionally, any other person.

47. First, it sets out the steps which an inspector or constable must take to destroy an animal where a veterinary surgeon certifies that the animal should be destroyed. In such cases the inspector or constable may destroy the animal themselves or arrange for its destruction either where it is or at another place. In the course of determining the condition of the animal, a veterinary surgeon may take samples from it. Where it is not reasonable or practicable to wait for a veterinary surgeon and if the inspector or the constable believe that there is no reasonable alternative, then they may destroy or arrange for the animal to be immediately destroyed.

48. Second, it sets out the circumstances in which it is permissible for any other person to destroy an animal. It is important that this action is only conducted under exceptional circumstances. These are: that there is no reasonable alternative to destroying the animal; that it not reasonable in the circumstances to wait for an inspector, a constable or a veterinary surgeon; and the person is, without assistance, able to destroy the animal in an appropriate and a humane manner. As this is an exceptional activity, the person who destroys the animal must, as soon as practicable, inform an inspector or a constable that they have taken this action.

49. This section also makes provision that any reasonable expenses incurred by an inspector or a constable in destroying an animal may be reimbursed by any person responsible for the animal.

QUESTION 16: Do you agree with the provisions which allow an animal to be destroyed?

Animal welfare bodies - Section 33

50. Section 33 provides that Scottish Ministers should have the power to establish animal welfare advisory bodies. Scottish Ministers should also be able to make regulations to facilitate or improve the co-ordination among bodies which have functions relating to animal welfare.

QUESTION 17: Should Scottish Ministers have powers to make regulations to establish animal welfare advisory bodies and facilitate the co-ordination of bodies that have functions relating to animal welfare?

Animal welfare Codes - Section 34

51. Codes of Practice are already widely used to promote the welfare of farmed animals. Scottish Ministers should be able to continue to make, revise and revoke these Codes. We also want to extend the provision for making Codes to non-farmed animals.

52. Section 34 sets out that when making, issuing, revising and amending these Codes, Scottish Ministers should follow a set of procedures. A Code will only be made following consultation with groups that represent relevant interests to it, and with other persons whom the Ministers consider to be appropriate. They must be laid before the Scottish Parliament and approved by it. Scottish Ministers must publicise any animal welfare Code. This may be undertaken in a manner and to an extent which they consider to be appropriate.

53. Codes will provide guidance that enforcers and the courts can refer to when making judgements on whether the relevant standards specified in the Bill have been met. Owners and keepers of animals may also find them a useful resource to increase or confirm their understanding of acceptable welfare standards and to regulate their conduct accordingly.

QUESTION 18: Do you agree with the procedures under which Scottish Ministers can issue animal welfare Codes of Practice and the legal status of these Codes?

Post-conviction orders - sections 35, 36, 37, 38, 39 and 40

54. Sections 35 to 40 specify the types of court orders that can be made to deal with animals after a person has been convicted of an offence under the Bill. These are set out within a broad framework which details how they can be made, undertaken and terminated on appeal.

55. After a person has been convicted of an offence under the Bill, a court can make a number of orders which relate to the animal or animals that were involved in that offence. These are:

  • A deprivation Order which deprives a person of the ownership of an animal and for the disposal (including destruction) of that animal and its offspring;
  • An order for the destruction of an animal;
  • A disqualification Order which disqualifies a person from undertaking a range of activities, namely, owning, keeping and participating in the keeping of animals, being involved in arrangements under which the keeping of animals may be controlled or influenced; dealing in animals; and transporting and arranging for the transport of animals. These orders may relate to animals in general or to particular kinds and have effect for a specified period of time;
  • A seizure Order applies where a person has breached a disqualification Order by owning or keeping animals. It may be made for all animals owned or kept during that breach and allows these animals to be taken from that person. If that person is the owner, then the order will authorise the destruction or other disposal of the animals. Where a seizure Order is sought against a person who is not the owner then the court will consider an appropriate way to deal with the animals;
  • A disqualification Order can be terminated or varied by a court, under specified circumstances. In considering an application from a person who is subject to a disqualification Order, a court must consider a range of circumstances and factors which it considers to be relevant. If it refuses to terminate or vary an order, it may specify a period of time in which the applicant cannot make a further application regarding that order.
  • When an appeal against a deprivation Order, a destruction Order or a seizure Order is made, these orders are suspended until the appeal has been withdrawn or determined. A person commits an offence if they sell or part with an animal under a deprivation Order when it is suspended. Any person who has an interest in any animal covered by an order may make an appeal to the High Court of Justicary against the order within 7 days of it being made.

56. The procedures for making these orders have been set within a broad framework. Each order can be made in relation to offences for unnecessary suffering, mutilation, cruel operations, administration of poisons, animal fights, and ensuring the welfare of animals. A deprivation Order can also be made in respect of an offence where a person has breached a disqualification Order and a seizure Order can only be made against a person who has breached a disqualification Order.

57. A court cannot make these orders unless a number of procedures are undertaken. These can differ from order to order. Before a deprivation Order, a destruction Order, and a seizure Order can be made, the court must give the owner of the animal an opportunity to make representations except where it is not practicable for it to do so. A deprivation Order cannot be made unless a court is satisfied it would be in the best interests of each animal to which it applies. A destruction Order cannot be made unless the court is satisfied that the evidence of a veterinary surgeon shows that it would be in the interests of each animal to which it relates. A seizure Order cannot be made unless the court takes into consideration how to protect the value of the animal and to minimise any expenses which need to be reimbursed.

58. The orders may include provision for a number of activities: the appointment of an authorised person or a person who is to act on their behalf, who will ensure that the order is carried out, and where appropriate, take possession of the animal. These persons can enter any premises where the animal is kept to carry out the provisions of the order.

59. Other provisions, which a court considers to be appropriate, may also be included in a deprivation Order, a destruction Order, a seizure Order and an appeal Order against these orders. A deprivation Order may specify the manner in which an animal is to be disposed of, or delegate this decision to the authorised person. A destruction Order and a seizure Order may make provision which requires that an offender reimburses any expenses that are reasonably incurred in carrying out the order. An appeal Order which suspends these orders may make provision for the removal of an animal to a place of safety or for the care of an animal at the place where it was found or elsewhere.

60. We consider that a court must state the reasons why it has decided not to make a deprivation or disqualification Order where a relevant offence has been committed, and this has been provided for in sections 35 and 37. A number of further provisions also require to be made for some of the other orders. A person who is subject to a seizure Order may appeal to the Sheriff Principal against the order. A person who is the subject of a disqualification Order may, within 7 days of the making of that order, appeal to the High Court of Justicary against it. The operation of a disqualification Order is suspended pending an appeal or where the court decides that the owner or keeper of the animals should be given time to make alternate arrangements for the animals.

QUESTION 19: Do you agree with the provisions of deprivation Orders, destruction Orders, disqualification Orders, breach of disqualification Orders and the suspension of Orders pending appeal?

Proceedings - Section 41

61. Under existing legislation it has sometimes proved difficult to prosecute for cruelty to animals when evidence of the offence has not been discovered until some considerable time after the offence was committed.

62. Section 41 sets out maximum periods after which proceedings for an offence under the Bill or regulations made under the Bill can be brought. Generally, this should be within a period of six months from the date on which evidence, which is considered to be sufficient in the opinion of the prosecutor to justify the proceedings, came to the knowledge of the prosecutor. However, proceedings cannot be brought more than 3 years after the commission of the offence. Where an offence has involved a continuous contravention, proceedings cannot be brought more than 3 years after the last date on which the offence was committed.

63. The date on which the proof of evidence came to the attention of the prosecutor is to be stated in a certificate. Proceedings are considered to be commenced on the date on which a warrant to apprehend or to cite the accused is granted, provided that the warrant is executed without undue delay.

64. In the Bill, a reference to a 'court' is to a Sheriff court.

QUESTION 20: Do you agree with the timescales for bringing proceedings for an offence under the Bill?

Bodies corporate - Section 42

65. Section 42 specifies that where a body corporate has committed an offence under the Bill or regulations made under it with the consent of or due to the neglect of an "officer" of that body, then both would be guilty.

66. In addition, where an offence under the Bill or regulations made under it has been committed by a Scottish partnership and has been committed with the consent or due to the neglect of a partner, that partner (as well as the partnership) is guilty of the offence.

QUESTION 21: Do you agree that bodies corporate or Scottish partnerships and the individuals within them should be guilty of an offence?

Penalties - Section 43

67. We have proposed that the Bill should have a range of penalties which reflect the seriousness of the different offences:

  • With the exception of a person who commits an offence relating to animal fights, or an aggravated offence, a person who commits an offence is liable on summary conviction to imprisonment up to six months or to a fine up to level 5 on the standard scale or to both;
  • With the exception of a person who commits an aggravated offence, a person who commits an offence under regulations made under the Bill is liable on summary conviction to penalties made under these regulations. These penalties will not exceed imprisonment of up to six months or a fine up to level 5 on the standard scale or to both;
  • A person who commits an offence relating to animal fights or an aggravated offence, is liable on summary conviction to imprisonment up to 12 months or to a fine of up to £20,000 or to both. The option of a very high fine is intended for use in serious cases, for example those which involve a significant profit for the offender. An offence is aggravated if it involves cruelty to an animal;
  • A person who commits an aggravated offence under regulations made under the Bill is liable on summary conviction to penalties set out in these regulations. These shall not exceed imprisonment for more than 12 months or a fine up to £20,000 or both. An offence is aggravated if it involves cruelty to an animal.

QUESTION 22: Do you agree with the range of penalties for the different offences?

Exception for fishing - Section 45

68. We believe that the Bill should exempt activities that are undertaken in the normal course of fishing, and provision has been made for this in section 45.

69. Wild fish are clearly outwith the scope of the welfare provisions of the Bill. However, when they are brought onto a vessel, it could be argued that they have become "captive" and they could fall within the definition of "animal". If caught fish were to be covered by the Bill, the "keeper" of the fish would have a duty of care to ensure their welfare. The fisherman would have to ensure that the fish are humanely killed or slaughtered and it could be argued that they would have to be individually slaughtered.

70. Recreational angling raises two issues. The first is that some anglers use live vertebrates (such as sand eels or small fish) as bait. This activity would certainly be covered unless a specific exemption were made. A second issue is "catch and release" where anglers catch fish, possibly weigh them or keep them in nets for a period and then release them back into the river, loch or sea. It is possible that a fish may have been injured when caught, landed or when the hook is removed and thus not fit to fend for itself when released back into the river.

71. Anglers could find themselves in breach of the offence of abandonment and failing in their duty of care to ensure the welfare of an animal with its reintroduction to the wild. This would conflict with other legislation that deals with fishing seasons and poaching. For example, if salmon are caught by mistake, out of season or without a permit, they must be released, regardless of whether the fish would be able to survive.

QUESTION 23: Do you agree that fishing should be excluded from the scope of the welfare part of the Bill?

Inspectors - Section 46

72. Scottish Ministers and local authorities as defined under section 2 of the Local Government etc(Scotland) Act 1994, will have power to appoint inspectors who will undertake functions relating to the enforcement of the provisions of the Bill, such as the taking into possession a protected animal that appears to be suffering. These inspectors should not incur civil or criminal liability for anything which they do in undertaking their exercise of any functions which have been conferred on them, if they had reasonable grounds for doing it and acting in good faith. This does not affect any liability of any other person in respect of any action undertaken.

QUESTION 24: Do you agree with the system for appointing 'inspectors' and that inspectors will not incur civil or criminal liability?

Powers of authorised persons - Section 48

73. Schedule 1 makes provision for powers of entry, search and inspection and seizure in connection with offences under the Bill, animals involved in animal fights, and animals in distress. These powers will apply to inspectors enforcing the provisions under the Bill or any regulations which implement a European Community obligation.

74. A sheriff or justice of the peace is able to grant an entry and search warrant to an inspector if there are reasonable grounds for believing that an animal is suffering or is likely to suffer unless there is a change in its circumstances. Where it appears to an inspector or constable that immediate entry is necessary then non domestic premises can be entered and searched without a warrant.

75. Where there are reasonable grounds for believing that an offence of unnecessary suffering, mutilation, cruel operations, administration of poison, animal fights, failure to ensure welfare or a breach of a disqualification Order has been committed or evidence of an offence can be obtained, a warrant can be issued by a sheriff or justice of the peace which will allow an inspector or constable to enter and search premises and examine or seize any animal, equipment, documents or other material. Where immediate entry is justified, then it would be possible for an inspector or constable to take this action without a warrant for non-domestic premises.

76. There is also a power to stop and detain vehicles or vessels.

QUESTION 25: Do you agree with the powers of entry, search, inspection and seizure which authorised persons will be given?

Regulations - Section 49

77. Scottish Ministers will have powers to make regulations by statutory instrument. These powers will enable Ministers to make any provisions which they consider are necessary or expedient for the provisions of the Bill, and to make provisions for different purposes. It will only be possible to make a Statutory Instrument containing regulations made under Part 2 of the Bill after a draft of the instrument has been laid before and approved by resolution of the Scottish Parliament.

QUESTION 26: Do you agree with the provisions for making regulations under the Bill?

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

Question
Number

Question

Section

1

Do you agree with the definitions of "animal" and "protected animal"?

14, 15

2

Do you agree with the definition of the person who is responsible for an animal?

16

3

Do you agree with the scope of the offence of unnecessary suffering?

17

4

Do you agree with the definition of mutilation and with the provision that certain procedures can be carried out if specified in regulations?

18

5

Do you agree with the scope of the offence of cruel operations and administration of poisons?

19, 20

6

Do you agree with the scope of the offence of animal fights?

21

7

Do you agree with the provisions to ensure the welfare of animals?

22, 23

8

Are the powers of Scottish Ministers sufficient and satisfactory to ensure that animal related activities can be adequately licensed and registered?

24

9

Do you agree that Scottish Ministers could prohibit, by regulation, the keeping of any animal at domestic or specified premises?

25

10

Do you agree with the scope of the offence of abandonment?

26

11

Do you agree that there should be a prohibition on the selling of animals to persons under 16 years of age?

27

12

Do you agree that animals should not be used as prizes unless given in a family context?

28

13

Do you agree with the powers that an inspector or a constable will have to deal with animals in distress?

29

14

Do you agree with the powers that are available to courts to deal with animals taken into possession?

30

15

Do you agree with the extent of the powers that are available to courts to deal with animals taken into possession?

31

16

Do you agree with the provisions which allow an animal to be destroyed?

32

17

Should Scottish Ministers have powers to make regulations to establish animal welfare advisory bodies and facilitate the co-ordination of bodies that have functions relating to animal welfare?

33

18

Do you agree with the procedures under which Scottish Ministers can issue animal welfare Codes of Practice and the legal status of these Codes?

34

19

Do you agree with the provisions of deprivation Orders, destruction Orders, disqualification Orders, breach of disqualification Orders and the suspension of orders pending appeal?

35, 36, 37, 38, 39, 40

20

Do you agree with the timescales for bringing proceedings for an offence under the Bill?

41

21

Do you agree that bodies corporate or Scottish partnerships and individuals within them should be guilty of an offence?

42

22

Do you agree with the range of penalties for the different offences?

43

23

Do you agree that fishing should be excluded from the scope of the welfare part of the Bill?

45

24

Do you agree with the system for appointing 'inspectors' and that inspectors will not incur civil or criminal liability?

46

25

Do you agree with the powers of entry, search, inspection and seizure which authorised persons will be given?

48

26

Do you agree with the provisions for making regulations under the Bill?

49