A personal response on proposals for legislative revision

Thu, 19 Jun 2008
Below is a personal response by NDWA life member Cuthbert Jackson to the proposals by Alex Neill MSP for the modernisation of legislation relating to dangerous dogs in Scotland. If you have any comments regarding Cuthberts response or to the Scottish Parliament proposals, please contact NDWA.

A personal response on proposals for legislative revision.
By Cuthbert Jackson (All Rights Reserved)

19th June 2008.

Having examined the summary of response to Mr Alex Neil’s proposals for the ‘modernisation’ of legislation controlling dangerous dogs, which can be found at:
http://www.scottish.parliament.uk/s3/bills/MembersBills/
I am, frankly, lost for words at the contributions and how they have been manipulated to indicate overall support for the original proposals; hence it has taken me a long time and a lot of re-reading to determine how to respond myself.

My conclusion from the re-examination of the information is that the best way I can respond is to explain with greater clarity why the NDWA draft proposals were written as they were written, and why as a result I cannot support the kind of tinkering which Alex Neil’s proposals provide, or the framing of the alternative radical proposals of Ryan O’Meara’s Dog Ownership Test (DOT).

The concept of schemes being introduced by government statute creating government taxation and using local government as the statutory regulators is entirely different to the concept of introducing a number of schemes (which might be described by the same words) through one legal requirement for third party insurance; likewise proposing the latter cannot be taken as support of the individual schemes if introduced in a different way – the difference in the concept is crucial to the outcome!

Tinkering with the legislation continues to fail to protect the public, firstly, when it fails to repeal s1 of the Dangerous Dogs Act 1991 and breed specific legislation because BSL keeps the public focus and apprehension of danger on what a dog looks like; and, secondly, when it fails to provide preventative measures which can be rapidly deployed by enforcement agencies. Radical revision on the other hand will, in my opinion, fail to obtain government consideration when it makes apparently sound demands but bases their introduction on unrealistic assumptions about any public services given the task to operationally introduce them; a fault, for example, with the Animal Welfare Act was that no agency exists in reality for its operational enforcement.

It is my opinion that so far only the NDWA draft proposals could introduce far reaching and desirable improvements reasonably quickly because they use existing structures to do so rather than national or local government. Other proposals place the greatest emphasis on the Police and Local Authorities managing what the proposals want to introduce; they appear to have failed to notice that each time the expectation on these services increases, funding, training and development do not. You only have to look at the disastrous removal of Police responsibility for stray dogs introduced in April 2008 through s68 of the Clean Neighbourhoods and Environment Act to see how such plans work out in practice.

The Police and Local Authorities are essentially enforcement and education agencies for any legislative introduction. Provide them with additional ‘powers’ ensuring that those powers are developed from the best available professional information and they will respond; provide them with additional ‘duties’ and they will, unless properly funded, simply stretch services away from the proper focus of attention, to achieve new targets monitoring the new introduction itself.

So, for example, it is highly likely that there will be a further push for both permanent identification (by microchip) and some form of licensing or registration, orchestrated by the RSPCA using the usual reasoning and the usual proposals (nominally this time to provide local authorities with funds to deal with stray dogs out of hours); even in radical proposals which present identification and registration as one part of the solution supporters present local government as the managing agent for the scheme. My contention is that if any of these proposals were introduced in the way they are currently presented it would focus local government on the management of this system (as their legal duty) and not on those things that the system should control. Likewise if some agency of DEFRA was created to introduce and manage the DOT the funding would go towards employment of staff to introduce the test, and is likely to be taken from staff dealing with problems - leaving the problems un-policed.

Anything given as the ‘duty’ of the local authority to provide will itself become the focus rather than being effective on the original problem this reasoning leads me to see such things as additions; desirable things perhaps but not necessarily something to be given as a principle duty for local authorities or the police. Do they remain achievable? Very much - yes!

What it takes is a change of mindset from thinking of the local authorities (government) as the source of these things into thinking how the local authority (and police) might use these things if they are introduced in a different way. Would there still be registration/licensing? Yes. Would there still be potential for training and testing dog owners? Yes.

How?

Rather than thinking of the local authorities as the source (the DOT for example is suggested as a DVLA for dogs – but the DVLA is an agency dealing only with the process of licensing and registration – the police still need to deal with the infringements or offences of driving without a licence or without tax) the local authorities and police are the enforcement arm. So who provides the rest? It is my opinion that a basis for the rest is already there. When the micro-chip was introduced government didn’t take it and make it the ‘registration plate’ for dogs controlled by a central government DVLA like agency, it allowed private registers and millions of dogs are on those registers already. Do we need to change this? In my opinion no; they can continue all that needs to change is that it becomes a legal requirement.

Why should it become a legal requirement? Is it so that we can pursue the owners of unregistered dogs for failing to have a micro-chip? Again, in my opinion, it is not important in that way; permanent identification is of benefit to the owner not something significant to chase around for enforcement other than where there are other problems. But I am sure that if the requirement (again already available commercially without the need for introduction through a government agency) for third party insurance, was a legal requirement, the insurance companies themselves (as they do already) would require some form of permanent identification (usually microchip) to ensure that their clients dog was correctly identified; in the same way that a registration plate identifies a car for insurance.

Making minimum third party insurance compulsory for all dogs would automatically bring in identification and also a register database, but not one maintained by government. It would therefore add a ‘power’ to the police and local authorities (to see insurance documents) which could be directed towards the source of real problems, without distracting their attention to focus on the maintenance of an additional system.

In doing this existing commercial agencies are brought into use which also have the skills, hardware, software and employment training to provide a service to dog owners at a reasonable commercially determined price rather than the local authorities levying a tax on one part of the community (through a licence fee on dog owners) to create something from scratch themselves or make commercial contracts with existing providers; has the introduction of s68 of the Clean Neighbourhoods Act shown us what is likely to happen?

Insurance also potentially deals with a great many other peripheral issues. I have noted with interest that contributors with little interest in dogs are obviously concerned about other breeds of dog than the Pit Bull Terrier, so am I; but in my case not so much about the dogs as about the people who are coming to own them. The breed usually mentioned is the Rotweiller and the attitude of those frightened of the breed is to query why it is not included with the Pit Bull, Tosa, Dogo and Fila under s1 of the Dangerous Dogs Act. It would appear to me that the answer is clear – the failure of s1 means that no Secretary of State has considered bringing additional breeds into the section reasonable; but that doesn’t mean that one won’t in the future. But considering ownership of a Rottweiler as identical to ownership of a Toy Poodle is equally nonsensical to me.

I will not go into the many well documented reasons that s1 has failed, it has failed and continues to fail and therefore should be repealed. But I quite understand that if it is to be repealed there is a huge risk to those repealing it, as Alex Neil put it; they don’t want to be the MP who legalises the Pit Bull Terrier. But there are a huge number of breeds not included in s1 that are perfectly legal and, quite honestly, I fear them because of the hands that they are falling into which are making them considerably more dangerous than Pit Bulls. I completely understand those people who see a Rottweiler and tremble – it is one of many breeds that simply because of size can do tremendous damage in the hands of the irresponsible – but, like a Pit Bull, in the right hands, quite safe.

So, repeal s1 and what do you do? The first thing to notice is that you free yourself to do something! The failure of s1 has led to us ignoring the increase of many other breeds not covered by it. Its repeal would open us to deal with them effectively; how? Again I believe that the answer is in the introduction of compulsory third party insurance. The onus falls on the insurer to compensate anyone injured or whose property (including other animals) is damaged by one of their clients. This immediately provides injured parties with compensation which they do not receive at the moment. It also places the insurance companies in the position of assessing the risk presented by dogs and my expectation is that they will be to a greater or lesser degree breed specific – initially!

Initially a Rottweiler does create a greater risk, but proper housing and training with the right owner instantly begin to limit that risk and if the insurance companies can believe what they are told – perhaps by accredited training schemes (which already exist) or even an accredited breeder scheme (which already exists) they may reduce their premiums accordingly. They would also be on a learning curve as to the validity of the accreditation as it would protect them from claims. All things which other proposals (such as the DOT) try to introduce as an arm of government – but from where would government get the staff? How would their effectiveness be judged? To put it another way; has the driving test or the two tier driving test prevented accidents? Would all the proficient dog trainers out there want to work for government (local or national) administering a test?

Perhaps even those who truly believe in breed specific legislation would understand that in this way in a very short time span there would be attention brought even on to breeds which they have never heard about but dog people know take considerable skills to ‘own’ in a safe manner and yet are growing in popularity.

In this way without the ‘interference’ of government, and without requiring the maintenance of newly created databases or the kind of bureaucracy for which government is often criticised, existing structures are used to provide the police and local authorities with new ‘powers’ which they can then use with the intelligence provided by complainants to target real offenders rather than those caught in newly created offences. All the ‘new stuff’ rests with those who already believe that they can provide it; insurance, micro-chipping, dog training and behaviour all rest with those currently delivering them though perhaps placing greater emphasis on their provision in this way will lead them to a professional restructuring to ‘best practice’ standards over a period of time.

In respect of what has already been said one thing that the legislation would have to deliver is the introduction of the concept of strict liability for the owner to the dog. Explanations why a dog does something are often perfectly valid but if this enables owners to avoid any liability for their animal’s actions the community are not served well; accidents do happen (just look at the roads) but evasion of responsibility for those ‘accidents’ because the dog is an independent living entity can be encompassed in the insurance and strict liability can be demanded.

Again I stress that using commercially available elements what has been described so far introduces everything that the DOT would have government introduce (the reason the DOT is unrealistic while the NDWA proposals are achievable is that government provision and any ‘nannying’ is removed). It provides many of the popular answers to dog control (such as permanent identification, registration/licensing and testing of a variety of kinds) and the dogs owner gets the peace of mind of insurance for the money they pay out which is determined by commercial rates rather than a government decree.

Do we need more?

The NDWA draft proposals suggest that we do. The preceding legal revision would give an additional power to require the presentation of insurance documents (and the necessary right to scan a dog without its owner’s permission in order to know what dog the papers were required for) and this can be used to target the least responsible into applying for insurance, taking tests etc. But enforcement agencies also need to be able to apply effective preventative controls which are not currently available.

This is clear in most of the proposals made by Alex Neil and in many of the responses to it. But throughout his proposals and the consultation responses the measures given continue to be responsive to incidents; they are developments of the existing s3 of the Dangerous Dogs Act or the 1871 Dogs Act already in use with the police and local authorities, which all require the application to a court for a court ordered Control Order.

The existing legislation needs improving not just repeating. The idea given in the NDWA draft proposals and wrongly attributed to the RSPCA in the summary given of responses to Alex Neil’s consultation is that the police and local authority be able to react – without going to court – by issuing a Control Notice (similar to the improvement notices made available under the Animal Welfare Act) this provides the opportunity to apply preventative measures where owners are not meeting acceptable standards. The Control Order, applied for through the Magistrates Court can then be applied both for breaches of Control Notices and, as at the moment, individual serious incidents.

The only place in which I have seen this approach published is the NDWA documentation, for all I know they may have the support of the RSPCA (as stated in the consultation responses summary) but the concept certainly did not originate with them as their contribution has been through the Dangerous Dogs Act Study Group (DDASG) who contributed to the development of Mr Neil’s original proposals; and no mention is made of this approach by that group.

The use of a Control Notice, by local authority or police, is highly consistent with the introduction of insurance in that such a notice could be notified to the insurance company (just like driving offences/changes of circumstance are for car insurance) and could potentially increase the dog owner’s premium unless the owner sought remedial action by training or behaviour modification acceptable to the insurance company. The Control Order would have a similar effect and would enable the court to support any existing requirements.

There are further details in the original NDWA document such as national standards which might be written into the regulations of the controlling Acts or education programmes made available through the accredited training providers approved by the insurers; but a minimum of legislative change is required and I intend to finish by explaining how little legislative time would be taken to achieve this in comparison to other proposals; meaning also that the NDWA proposals produce a great deal without vast amounts of primary legislative change or creation of governmental bureaucracy.

Comprehensive amendment of the Control of Dogs Order 1992 could be made to create strict liability and make it an offence not to have valid third party insurance and present it to a police or local authority officer on demand (or by producer) it could be added to this that the identification of a dog was in future to be in the form of a microchip and that the microchip details (number) must be recorded on the insurance document. Amendment of s3 of the Dangerous Dogs Act 1991 could easily repeal s1 (citing the greater control given by the Control of Dogs Order over all breeds) and amending s3 to enable the introduction of the Control Notice where the police or an officer of the local authority identified a problem in the control provided by an owner.

There is no need to set up large national or local bureaucracies to administer anything, no need for the dog owner to pay government, support given to the police and local authorities in the control of problems and reassurance given to those who fear dog aggression that they will be compensated in the event of an incident and that not only a few oddities are identified as potential risks but risks will be assessed in a commercial (insurance) setting far more likely to achieve results on the whole canine population.

My personal position (the NDWA document was a draft and is not agreed by other members as formal proposals – I do not therefore attribute support to all NDWA members as might be on a final agreed document) is such that I cannot say that Alex Neil’s existing proposals are sufficient or Ryan O’Meara’s achievable in the format given. I have provided this document to them both as the best that I can offer for their consideration and in explanation as to why I cannot offer either of their proposals my support.

Cuthbert Jackson.

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