Better Law for our Best Friends in Scotland ?

 

Better Law for our Best  Friends  in  Scotland ?

Scott Blair, Advocate

Scott   practices at the Scottish Bar with Terra Firma Chambers.  He is top ranked in licensing law in both Chambers UK and the Legal 500.  Currently a Council Member of the Institute Scottish Region he is also a member of the UK Centre for Animal Law and is on the Steering Committee of their new Scottish Area. As well as joining in the adventures  of Barney, his own Best Friend,  as a lawyer he has a keen interest in animal welfare and animal protection law and in particular how licensing controls can assist.  He recently assisted the Institute and the Law Society of Scotland in responding to the consultation from the Scottish Government on reform of the law on the breeding of dogs, cats and rabbits. In this Blog Scott highlights aspects of  that  consultation but also gives  consideration to areas where  more needs to be done.

If one says with Emmanuel Kant that:

“He who is cruel to animals becomes hard also in his dealings with men. We can judge the heart of a man by his treatment of animals”,

We can perhaps see why animal welfare is important to all of us whether human or other. Concern for animals is part of what makes us human. The objectification and ill-treatment of animals detracts from what it is to be properly human.

In this blog I will attempt to outline current proposals in Scotland on the reform of dog breeding law.

Background

The breeding of dogs in Scotland is still governed by the Breeding of Dogs Act 1973. The sale of young dogs and kittens is governed by the Licensing of Animal Dealers (Young Cats and Young Dogs) (Scotland) Regulations 2009.

On the matter of sale, Scotland does not (yet) have the equivalent of   Lucy’s   Law, something on which the Institute had a key role in securing for England. Although the 2009 Regulations do require that -with some exceptions-the commercial sale of puppies must be licensed, current evidence suggests that the majority of puppies in Scotland are not bought from either a licensed breeder or seller. The Regulations are also not an effective way of tackling on- line sales. They do little to tackle the instant gratification culture which sees the purchase of a sentient creature in the same light as the casual purchase of a disposable mobile phone. 

For some time, there has been a view that the Act is no longer suitable for modern conditions. Some have focussed on structural issues such the scope for “puppy farming,” others have focussed on more specific areas such as whether the breeding of dogs which may have a predisposition to genetic disorders is something which can be squared with welfare concerns.

Picking up on these and other concerns a Private Members Bill –the Responsible Breeding and Ownership of Dogs (Scotland) Bill  -was introduced to the Scottish Parliament by Christine Grahame MSP. Matters have moved on and it appears likely that the Scottish Government will now bring forward legislation (probably in the form of a Statutory Instrument made under the Animal Health and Welfare (Scotland) Act 2006) to replace the 1973 Act.

In taking matters forward, the Government issued a consultation paper on the Licensing of dog, cat and rabbit breeding activities. The consultation closed on 30th November 2018. The Institute submitted a detailed response. The Consultation and the summary of responses to it can be found at https://consult.gov.scot/animal-welfare/pet-breeding-activities/.

A total of 675 responses were received. Of these 49 (7.3%) were from groups or organisations which included animal welfare charities, animal sanctuaries, animal rehoming centres and the veterinary and legal professions. Some 19 (2.8%) responses were received from Local Authorities and the remaining 607 (89.9%) were from members of the public with an interest in this subject.

Of the 659 responses to this question, 96.8% were in favour of the Scottish Government’s proposals to regulate dog, cat and rabbit breeding activities with 3.2% against the proposed regulations.

Of those in favour of the proposal, the most common theme was that the proposals would improve welfare by reducing the number of high-volume, low-welfare breeders suspected of putting maximisation of profit ahead of animal welfare concerns. While of course consultation responses will not determine the content of any draft Regulations, it is likely that where a majority of respondents favoured a Government proposal, that this will be transformed into law.  The main areas of concern were as follows.

Breeding Thresholds

Some 514 respondents provided detailed comment on the thresholds that should apply to the breeding of dogs, cats and rabbits. A clear majority of respondents supported the idea of introducing licensing of breeders based on a threshold number of litters. However, there was a common concern that these thresholds should be backed up relevant scientific, technical and veterinary expertise.

Some 634 respondents expressed a view on how many times an animal should have a litter. Of that,   71.3% agreed with the proposal that a breeding dog, cat or rabbit must not give birth to more than six litters in their lifetime. Some 28.7% were not in agreement with the proposal. Of those who responded positively to the proposal, it was commonly felt that, while a breeding dog, cat or rabbit should not give birth to more than six litters in their lifetime, this could reasonably be amended to an upper limit of four litters for dogs on welfare grounds in line with the standards required by the existing Kennel Club Assured Breeders Scheme.

Limit on the number of female breeding dogs

Of the 606 respondents who addressed this issue, 49.8% favoured the Scottish Government’s proposal that, as a condition of licensing, premises should only be allowed a maximum of 20 breeding dogs or cats within one calendar year while 50.2% of respondents were not in favour of the proposal. There is a narrow majority in favour of no limit. However given that the issue is finely balanced it is by no means certain that Scottish Government will not still opt for a limit given the widely held concerns over what some see as “puppy farming.”

Licence duration

The Scottish Government considered that licences lasting from one to three years may be issued on the basis of a welfare risk assessment. Of the 611 respondents who commented on this proposal, 79.7% were in favour of it, while 20.3% of respondents did not agree with the proposal. Of those in agreement with the proposal, a common theme was that issuing licenses of variable length would reduce the burden on local authorities and free up resources to fully investigate breeding establishments where there were concerns about welfare standards.

Fit and Proper Person Test

Some 527 respondents provided further detailed comment on the other considerations, apart from criminal convictions, that should be part of a “fit and proper person” test for those running dog, cat or rabbit breeding activities. These included:

  • Appropriate qualifications in animal care and animal husbandry with animal first aid being specifically highlighted.
  • Knowledge of the species and breed being bred.
  • Access to premises appropriate for the scale of breeding operation and the species involved.
  • Access to appropriate financial resources in case of necessary unplanned expense.

Enforcement

The Scottish Government proposed that enforcement agencies should be able to suspend, vary or revoke licenses or issue improvement notices for minor irregularities. Of the 619 respondents who addressed this question, 95.2% were in favour of the proposal that enforcement agencies should be able to suspend, vary or revoke licenses or issue improvement notices for minor irregularities, while 4.8% of respondents were not in agreement with the proposal. Of those in favour of the proposal, the common theme was that giving enforcement agencies the power to suspend, vary or revoke licences or issue improvement notices to breeders would lend proper weight to the regulations and allow for proper enforcement.

“Problem” Breeds

In the consultation asked if the Scottish Government should discourage the breeding of dogs, cats and rabbits with a predisposition for specific genetic conditions, which lead to health problems in later life, of the 637 respondents who answered this question, 93.2% were in favour of the proposal, while 6.8% of respondents who answered the question were not in agreement with the proposal. Of those in favour of the proposal, the common theme was that the Scottish Government proposal would bring about significant welfare improvements if successfully implemented. However, it was noted that not all genetic conditions wait for later life to present and that there may be justification for increasing the scope of the proposal in that regard. Indeed, a related question asked whether as a condition of licensing, any breeding practices which were likely to cause the offspring suffering in later life should be prohibited. Of the 634 respondents who answered this question, 97.3% were in favour of this proposal that as a condition of licensing, while 2.7% of respondents to this question were not in favour of the proposal.

Issues not yet addressed

For my own part there are still a number of areas which need to be addressed. Substantively I would ask that there be inserted into any breeding licence a requirement that any breeder should be subject to a condition that any prospective puppy owner would have to consider a list of questions ahead of buying the puppy. The questions should be prescribed in a statutory form and the questions asked and answers given should be part of mandatory record keeping. Questions should be addressed at ensuring that the buyer has given the purchase careful consideration and has shown an awareness of the duties owed to dogs as companion animals as set out in parallel provisions such as in the Code of Practice for the Welfare of Dogs” issued under section 37 of the 2006 Act.

I would recommend that consistent with other forms of licensable activity such as liquor and civic government licensing, that any person should be entitled to object to an application for a breeding licence and that in parallel any person should be entitled to bring an application for suspension or revocation of a licence. Currently there is no right of objection by third parties although even under the 1973 Act some local authorities do permit representations and objections to be made. This is not desirable as the lawfulness of such a practice absent a clear statutory basis is unclear. It would in my view be anomalous to not allow welfare bodies as well as members of the community to bring their concerns about new licence applications, as well as existing licences, to the attention of the licensing authority. 

I would also recommend that there be put in place clear grounds of refusal for an application. The exact form this might take is perhaps a matter that needs to be given further consideration. There are no clear grounds for refusal in section 1 of the 1973 Act beyond the disqualification provisions. The consultation did not address this issue in any real detail. This is not desirable and is, in modern licensing law terms, unusual.  While I welcome the possibility that reform will include a fit and proper test, I would also suggest that consideration be given to the extent to which a breeder would be able to show consistency of practice with prescribed Canine Welfare Licensing Objectives. A failure to properly evidence an understanding of canine welfare should lead to a refusal. Parallel provision could be extended to cats and rabbits. However, in my view the single largest area of omission from the reform package is any attempt to address the abuses which led to Lucy’s Law in England.

Lucy’s Law for Scotland?

As noted, the dealing of young dogs is regulated by the Licensing of Animal Dealers (Young Cats and Young Dogs) (Scotland) Regulations. Anyone acquiring or selling young cats or dogs (less than 84 days old) and acquiring a young cat or dog with a view to sale, needs an animal dealing licence. This involves applying for a licence, paying a fee, having the premises inspected and meeting a number of requirements. Not to hold a licence for such activity, or to contravene the conditions of an animal dealing licence, is an offence.

A licence is not needed for a licensed dog breeder or a pet shop or for an animal kept in a sanctuary or rehoming centre. The licensing regime for dealing in young cats or dogs does not apply if the young cats or dogs being sold are the offspring of a pet owned by that person. It also does not apply to anyone that sells no more than two young cats or two young dogs (or one of each) in any 12-month period. Under this legislation, a written record is to be completed by the licence holder, to accompany a young cat or dog to be sold by a licence holder. The licence holder must retain the record for at least 3 years from date of sale.

By contrast there is a view that only licensed breeders should be allowed to sell animals. “Lucy’s Law” in England, or more accurately The Animal Welfare (Licensing of Activities Involving Animals) (England) Regulations 2018 (“the 2018 Regulations”), is a robust measure aimed at tackling some of the worst abuses. These Regulations have resulted in a ban on pet shops and dealers from selling puppies and kittens as the commercial sale of puppies or kittens will only be permitted when purchased from a licensed breeder or an animal rehoming centre.  Under these Regulations, anyone wishing to buy a kitten or a puppy would have to go directly to a breeder or a rescue centre. The new system is intended to ensure that puppies and kittens are healthy and have access to good living conditions. It will make it less likely that owners will buy ill pets, or pets below the legal age to be sold and that sales via the internet can be tackled.

Commercial sellers will not be allowed to sell animals under the age of 8 weeks. All licensed sellers and breeders advertising pets for sale will be required to share their licence number and name the authority that issued it. They will also have to share the animals’ age, country of residence and country of origin and display a picture of true likeness of the pet. Sales will have to be completed in person at the premises where the dog has been kept thus banning online sales altogether. Puppies will have to be shown in the presence of their mothers and online purchases would be a breach of the Regulations.

The 2009 Regulations simply do not address the concerns which led to Lucy’s Law. They do not limit the sale to licensed breeders or rehoming centres. The abuses which can and do occur as a result of Third Party Sales will continue. Passed in a world when the internet was still new technology, they are not a suitable vehicle for tackling online sales. Divorced from the need to link breeder and seller, they offer a weak basis for securing the welfare needs of any animals which are sold.

Although in Scotland those involved in both the acquisition for sale and the sale of puppies and kittens on a commercial basis must be licensed, most, if not all of requirements found in the 2018 Regulations are simply not to be found in the 2009 Regulations nor are they (yet) part of the current reform proposals from Scottish Government. In the view of the writer at least, that is an omission which must be addressed.   

If any new Scottish legislation does not make comparable provision to the 2018 Regulations, different practice between Scotland and England is likely to provide a clear loophole which could encourage unscrupulous third-party sellers to base their operations in Scotland. This could also give further impetus to other poor welfare practices in Scotland.   Online sales will continue and overall, the welfare of puppies will not be   protected to the same degree as those bred in England.    

To reform dog breeding law but not to tackle the sale of puppies following the model of the 2018 Regulations, is only to address one part of the problem. Scotland needs a seamless regime to protect our Best Friends from those who do not subscribe to the views that Kant urged on us all those years ago.