Meeting of the Parliament

Meeting date: Thursday, April 22, 2010

Official Report 1132KB pdf

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Control of Dogs (Scotland) Bill: Stage 3

The next item of business is stage 3 proceedings on the Control of Dogs (Scotland) Bill. In dealing with amendments, members should have the bill as amended at stage 2, the marshalled list and the groupings that the Presiding Officer has agreed. The division bell will sound and proceedings will be suspended for five minutes before the first division. The period of voting for that division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after each debate.

Section 1—Serving of dog control notice

Group 1 is on meaning of “out of control”—size and power of dog. Amendment 1 is the only amendment in the group.

The bill promotes the idea that a dog should not be judged on its breed and that a dog’s behaviour and its owner’s actions should inform any action against it. At stage 1, the Local Government and Communities Committee and all those from whom we took evidence agreed with that presumption. However, in the definition of an out-of-control dog, a dog’s breed characteristics have crept back in. Ms Grahame has proposed a two-part test. The first part is whether the dog is kept under control effectively and the second part is a test of reasonableness—of whether the person who complains is justified. Those tests are sufficient, so referring to a dog’s size and power is unnecessary.

As we have gone about campaigning over the years, I am sure that we have all met dogs that have given us cause for concern. I am equally sure that many of them were smaller dogs. How do we define a dog’s size and power? Does that mean the size and power of, say, a Dobermann, which might concern me—I mean no disrespect to Dobermanns and their owners—or of a Jack Russell, which might concern a five-year-old?

I lodged amendment 1 to deal with a point that the committee agreed unanimously in its stage 1 report and to make the rationale behind the bill consistent in its delivery and—I hope—more workable in its execution.

I move amendment 1.

We are aware that some who gave evidence at stage 1 expressed concerns about the inclusion of a dog’s size and power as part of one element of the two-part test that must be met before a dog can be deemed to be out of control. Some respondents felt that the inclusion of references to a dog’s size and power were inconsistent with the bill’s general thrust of moving away from basing dog control measures on a dog’s breed and towards focusing the approach more on the deed of a dog and its owner.

We accept that removing the words “size and power” might have little effect on the practical operation of the two-part test, but the inclusion of the reference to size and power serves a useful purpose. Those words add clarity, warning owners of large and powerful dogs of the need for greater control over those dogs. To draw a parallel, we would expect all drivers to drive responsibly and to take care when driving. However, we would expect the driver of a 10-tonne lorry to be aware of the likely extra danger of their large and powerful lorry getting out of control—as opposed to the driver of a small moped, say, losing control of their vehicle.

Notwithstanding amendment 2, in my name, to section 1(3), which will be debated shortly in connection with the two-part test in its current form, we should remember that a further element of the second part of that test also requires to be met: authorised officers may consider issuing a dog control notice only when they are satisfied that the alarm or apprehensiveness that might be felt by the individual as a result of the size and power of the dog is not unreasonable. For clarity, we would prefer the two-part test to retain the reference to the size and power of a dog. We oppose amendment 1.

I thank Patricia Ferguson for lodging amendment 1. I have sympathy with the intention, although I think that the amendment is misguided in its terms. I support what the cabinet secretary has said.

The provisions are framed in such a way that it is irrelevant what breed of dog is misbehaving. The bill concentrates on the deed and its effect on people. As the cabinet secretary said, that takes us back to the reasonableness test. The main aim is to address irresponsible ownership, regardless of breed. That is the whole ethos behind the bill.

I have considered again the out-of-control test, and I remain confident that it is framed in such a way that it focuses on deed. Let me explain. A dog that is large and powerful and which might otherwise cause alarm or apprehensiveness, such as an Alsatian, but which is kept under control, cannot be the subject of a dog control notice. The same Alsatian, when walked by a person who, for whatever reason, is incapable of controlling the dog, because of its sheer size and power, could be considered to be out of control—but only if, for example, it was snapping at people or at other dogs. The deed is the actions of the dog, allied to someone being in charge of a dog that they cannot control.

Taking that argument a step further, a dog that might not be large or powerful, such as a Jack Russell, but which behaves in a manner that causes alarm or apprehensiveness and which is not controlled effectively and consistently, would be considered to be out of control.

Amendment 1 would remove helpful legislative signposting for those who will have to implement the provisions of the bill, resulting in less clarity. The reference to size and power highlights that, in considering the circumstances of the incident, size and power may—I emphasise the word “may”—play a part. Including specific reference to size and power is a direct warning to owners of large and powerful dogs that, if they cannot control their dogs effectively, further measures will be imposed on them. Those words are therefore a powerful tool in promoting responsible purchasing and ownership of dogs. They are integral to the out-of-control test and to the ethos of the bill, which, as I have said, is deed not breed. I caution members that, if they are inclined towards supporting amendment 1, they might be missing the point of the provision and the additional protection that it provides.

The arguments for the removal of the words “size and power” are narrowly focused. A clear example of breed not deed legislation is the Dangerous Dogs Act 1991, which, at section 1, bans particular breeds of dogs. That argument could not be levied at the bill, as no specific breed of dog is singled out. If we interpreted the words “size and power” to refer to large, powerful dogs, which might need extra measures to keep them under control—which I suggest is common sense—such as a harness or a larger fence round the back garden, we would be right. There are indeed additional responsibilities, which should rightly apply to owners, depending on the dog that they own. That is a matter of fact—not breed.

Members should remember that the purpose of the bill is to provide effective tools to address the behaviour of all dogs before serious incidents occur. It is a matter of early intervention. Members should not miss the opportunity to send a clear message to owners that they must be capable of controlling their dog, whether it is a Labrador, an Alsatian, a Japanese Akita, a West Highland terrier or the ubiquitous Heinz 57. Big dog does not mean bad dog, and small dog does not mean good dog—it all depends on how good the owner is. I ask members not to support amendment 1.

I am grateful for Christine Grahame’s clarification, but I point out that the bill gives consideration to the size and power of the dog, so it would be part of the reasonableness test. I contend that, if dog control officers will have to make a judgment on whether the size and power is an issue, we might have to specify the matter more clearly if it is to be helpful to them.

Ms Grahame indicates that the size and power of a dog may be taken into account. However, I am afraid that, when we frame legislation, we cannot use the word “may”; it will be taken into account.

Any owner should, of course, have control of their animal. Any owner who cares about that animal and takes their responsibility seriously will do that but, at the end of the day, the size and power of the animal is not the question. As the bill has been at pains to say, the question is the behaviour and the deed.

The question is, that amendment 1 be agreed to. Are we agreed?

Members: No.

There will be a division. I suspend the Parliament for five minutes prior to the division.

15:06 Meeting suspended.

15:11 On resuming—

We will proceed with the division.

For

Aitken, Bill (Glasgow) (Con)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brocklebank, Ted (Mid Scotland and Fife) (Con)
Brown, Gavin (Lothians) (Con)
Brown, Robert (Glasgow) (LD)
Brownlee, Derek (South of Scotland) (Con)
Carlaw, Jackson (West of Scotland) (Con)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Foulkes, George (Lothians) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West of Scotland) (Con)
Gordon, Charlie (Glasgow Cathcart) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Paisley South) (Lab)
Kerr, Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McArthur, Liam (Orkney) (LD)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McConnell, Jack (Motherwell and Wishaw) (Lab)
McInnes, Alison (North East Scotland) (LD)
McLetchie, David (Edinburgh Pentlands) (Con)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mulligan, Mary (Linlithgow) (Lab)
Murray, Elaine (Dumfries) (Lab)
O’Donnell, Hugh (Central Scotland) (LD)
Oldfather, Irene (Cunninghame South) (Lab)
Park, John (Mid Scotland and Fife) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Elizabeth (Mid Scotland and Fife) (Con)
Smith, Iain (North East Fife) (LD)
Stewart, David (Highlands and Islands) (Lab)
Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)
Tolson, Jim (Dunfermline West) (LD)
Whitton, David (Strathkelvin and Bearsden) (Lab)

Against

Adam, Brian (Aberdeen North) (SNP)
Allan, Alasdair (Western Isles) (SNP)
Brown, Keith (Ochil) (SNP)
Campbell, Aileen (South of Scotland) (SNP)
Coffey, Willie (Kilmarnock and Loudoun) (SNP)
Constance, Angela (Livingston) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Don, Nigel (North East Scotland) (SNP)
Doris, Bob (Glasgow) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Harvie, Christopher (Mid Scotland and Fife) (SNP)
Hepburn, Jamie (Central Scotland) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Adam (South of Scotland) (SNP)
Kidd, Bill (Glasgow) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)
Marwick, Tricia (Central Fife) (SNP)
Mather, Jim (Argyll and Bute) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
McKee, Ian (Lothians) (SNP)
McKelvie, Christina (Central Scotland) (SNP)
McLaughlin, Anne (Glasgow) (SNP)
McMillan, Stuart (West of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Paterson, Gil (West of Scotland) (SNP)
Russell, Michael (South of Scotland) (SNP)
Somerville, Shirley-Anne (Lothians) (SNP)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow Govan) (SNP)
Swinney, John (North Tayside) (SNP)
Thompson, Dave (Highlands and Islands) (SNP)
Watt, Maureen (North East Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
White, Sandra (Glasgow) (SNP)
Wilson, Bill (West of Scotland) (SNP)
Wilson, John (Central Scotland) (SNP)

The result of the division is: For 57, Against 42, Abstentions 0.

Amendment 1 agreed to.

Group 2 is on meaning of “out of control”—reasonable alarm or apprehensiveness. Amendment 2, in the name of Kenny MacAskill, is the only amendment in the group.

Amendment 2 seeks to modify part of the two-part test for a dog being out of control, so that the wording of section 1(3)(c) changes from

“the individual’s alarm or apprehensiveness is not unreasonable.”

to

“the individual’s alarm or apprehensiveness is, in all the circumstances, reasonable.”

We consider that changing the wording of section 1 in that way, so that the obligation on the authorised officer is to decide whether the alarm or apprehensiveness of a person is reasonable rather than not unreasonable helps to emphasise that the authorised officer must be satisfied, in making the decision, as to what is reasonable. The change will also be helpful in ensuring that consideration of the two-part test by the authorised officer or a court will be more clearly focused and consistent with other references in legislation to a reasonableness test.

We have sought to include the phrase “in all the circumstances” to ensure that the authorised officer is required to look more broadly at the context in which the alarm or apprehensiveness arose to determine whether it was reasonable.

I move amendment 2.

Amendment 2 seeks to address some outstanding concerns relating to the out-of-control test and, in particular, as the cabinet secretary said, a potential for lack of consistency in decisions by authorised officers.

As I said during the stage 1 debate, I am relaxed about the use of the reasonableness test as it is used in many acts and is a widely recognised proposition. It applies to MSPs when we consider what interests to register, for example an overseas visit.

In response to the committee’s concerns, I amended the bill at stage 2 to clarify that the alarm or apprehensiveness of an individual must not be unreasonable. The cabinet secretary’s amendment will still require authorised officers to ask themselves: would a fair-minded and impartial observer conclude that the behaviour or actions of the dog would cause alarm or apprehensiveness? The inclusion of the phrase “in all the circumstances” clarifies the proposition, meaning that, irrespective of the individual’s concern, a dog control notice can be issued only when the authorised officer is satisfied, having considered all the circumstances, that the alarm or apprehensiveness would be held by a reasonable person. The authorised officer will have to take a broad view of the incident in coming to his or her decision.

I am content to support the amendment and will endeavour to cover the other safeguards in the bill during the debate to pass it.

Amendment 2 agreed to.

After section 11

Group 3 is on guidance for local authorities and authorised officers. Amendment 3, in the name of Kenny MacAskill, is the only amendment in the group.

15:15

Amendment 3 provides that the Scottish ministers must provide guidance to local authorities in relation to the exercise of their functions and the exercise of the functions of authorised officers under the bill, and that all local authorities and authorised officers must have regard to such guidance.

Under the terms of the bill as it stands, there is no obligation on the Scottish ministers to produce guidance on the bill, but we plan to issue guidance and we believe that amendment 3 is helpful in putting a requirement to that effect on the face of the bill.

I am grateful to the minister for allowing me to intervene. Will he bring that guidance to Parliament for consideration prior to issuing it to local authorities?

We would be happy to discuss that. The purpose is to keep the approach fairly light, and there are methods by which we can seek to do that. It is certainly not the desire of the Government to exclude anything from public scrutiny. Subject to the caveat that we must ensure that matters are dealt with as expeditiously and as simply as possible, we will be more than happy to ensure that members are kept abreast of matters.

Amendment 3 provides that local authorities and authorised officers

“must have regard to guidance”.

Local authorities and authorised officers will have to consider the guidance, but they will not necessarily be obliged to follow it as they carry out their functions under the bill. We consider that the issuing of guidance will help to enhance understanding of the bill’s provisions and of decisions by authorised officers on what is and what is not reasonable in the context of section 1.

We are aware of the concerns that have been expressed that the legitimate and lawful activities of working dogs may be adversely affected by the bill. Although we do not think that that will be the case, we will engage with all those parties who have key interests in the bill, including local authorities and rural stakeholders, in drafting the guidance to ensure that it is fully understood how the dog control notice regime is to operate. We think that guidance will assist local authorities and authorised officers as they plan ahead for implementation of the bill.

I move amendment 3.

I exercise my power under rule 9.8.4A of standing orders to extend the deadline for consideration of the groups of amendments to give members the right to speak on amendment 3, if they wish to do so.

During stage 1 consideration of the bill, I suggested to the cabinet secretary that it might be helpful to provide guidance to those who would have to implement the bill’s provisions. It was my understanding that if the bill was successful in passing through Parliament, such guidance would be provided. As the cabinet secretary has stated, there is no legislative need to include a guidance provision, but I welcome the Scottish ministers’ commitment to the provision of guidance and therefore support amendment 3.

Amendment 3 agreed to.