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CONSULTATION ON A DRAFT PROTECTION OF ANIMALS (SCOTLAND) BILL

DescriptionConsultation POA Bill
ISBN
Official Print Publication Date
Website Publication DateMarch 21, 2003

Environment and Rural Affairs Department

Pentland House, 47 Robb's Loan, Edinburgh EH14 1TY, Telephone: 0131-244-6178, Fax: 0131-244-6616

animal.health@scotland.gsi.gov.uk

Dear Sir/Madam

CONSULTATION ON A DRAFT PROTECTION OF ANIMALS (SCOTLAND) BILL

The Scottish Executive would welcome your comments on the draft proposals for legislation to amend the Protection of Animals (Scotland) Act 1912. This draft Bill is intended to address a specific problem about the lack of power available to local authorities to remove neglected farm livestock. This draft Bill is not intended to address wider animal welfare issues. We are, however, aware that such discussions are taking place in England and Wales. In light of the outcome of these discussions the Scottish Executive may consider introducing wider animal welfare legislation at a later date.

All comments on the draft legislation will be given careful consideration. Decisions on any future legislation will be a matter for a future Administration following the Elections in May 2003. The publication of this paper is in line with the commitment given last year to Parliament by Ross Finnie, the Minister for Environment and Rural Development, to consult on measures designed to improve the welfare of farmed livestock.

Attached is a copy of the provisional draft Bill together with a detailed note explaining the background, purpose and detail of the Bill. Comments on any aspect of the draft Bill, including its scope and detail should be sent by Friday 27 th June 2003 to:-

Iain Holt

Protection of Animals Bill Team

Scottish Executive Environment and Rural Affairs Department

Room 356

Pentland House

47 Robb's Loan

EDINBURGH

EH14 1TY

Or

By e-mail:- iain.holt@scotland.gsi.gov.uk

Please note that copies of responses received will, as is normal practice, be made available to others on request, unless respondents indicate that all or part of their response is confidential. In the latter case the confidentially of the response will be strictly respected.

This document is also available on the Scottish Executive website at http://www.scotland.gov.uk

Yours faithfully

Iain Holt

Welfare Policy Officer


Contents page

Detailed Explanatory Note

Introduction

Background

Purpose

Objective

Details by section

Draft Act by Section

1 Orders for care, disposal, slaughter or putting down of protected animals

2 Interim orders

3 Variation and revocation of orders

4 Effect of directions and orders under sections 2 and 3 of the 1912

5 Powers of entry, offences, etc.

6 Other supplementary provisions

7 Powers of local authority officers relating to injured animals

8 Welfare of livestock: local authority powers of entry

9 Interpretation

10 Short title and commencement


CONSULTATION PAPER ON A DRAFT PROTECTION OF ANIMALS (SCOTLAND) BILL

Introduction

1. This short draft Bill is intended to address the specific problem of the lack of statutory powers available to local authorities to remove neglected farm livestock who are suffering or are at risk of suffering to a place of safety. It also increases the power of inspectors to enter farm premises without the involvement of the police. Fortunately cases of serious neglect are rare but where they do occur livestock can be left in the most appalling circumstances until a conviction on animal cruelty charges is secured. This draft Bill will allow local authorities to take early action to address cases of this nature. Decisions on any future legislation will be a matter for a future Administration following the Elections in May 2003.

Background

2. At present the powers given to local authorities under the Protection of Animals (Scotland) Act 1912 to remove animals which are suffering or in distress is limited. In most cases where animals are suffering an agreement is reached with the owner whereby the responsibility for the animals is voluntarily transferred and the animals are then removed to a place of safety. However, in a very few cases, it is not possible to reach an agreement with the owner of animals either to remove the animals to a place of safety or to make alternative arrangements to improve their welfare conditions. In these, exceptional, cases the animals may be left in distress until after a court case is heard and a conviction obtained. Due to the length of time normally taken to secure such a conviction, it is possible that the animals will continue to suffer for a considerable period.

3. There are only a very few cases where animal owners fail to reach agreement with the authorities to improve the welfare of their animals and from past experience is this has mainly involved farm livestock. Although this is not a widespread problem a very few individual cases have resulted in major livestock welfare problems.

4. It is presently the case that a local authority working with the police can, on veterinary advice, authorise the destruction or taking into care of animals already in distress or suffering without the consent of the owner. This investigation of reported animal welfare problems, of course, places an additional burden on police resources. The involvement of local authorities is severely limited, under present legislation, by their inability to enter premises to investigate any such incidents. Indeed it is often the case that the police are alerted to animal welfare problems by other organisations such as the State Veterinary Service, local authority animal welfare inspectors or the Scottish Society for the Prevention of Cruelty to Animals.

5. The costs incurred in removing animals, caring for them or, in the most severe cases, arranging for their destruction is most often met by the local authorities or animal welfare charities and this can involve a significant additional expenditure to the charities. It is possible for the police to recover any costs which they have incurred in looking after the animals but this requires civil action against the owner. Alternatively the expenses can be defrayed from police funds.

Purpose

6. It is therefore recognised that the present arrangements for dealing with animal welfare cases and the powers in the current legislation are not the most efficient nor practical way to deal with the most serious cases where the animal owner fails to reach an agreement. Accordingly the purpose of this draft Bill will be to strengthen our animal welfare legislation for farmed livestock.

7. The revised legislation will enable farm livestock to be taken into care where it is considered that doing so is in their best interests. This will be where the animals are suffering cruelty or neglect or are at risk from suffering cruelty or neglect. This will normally, but not necessarily, involve a prosecution on animal cruelty offences under the Protection of Animals (Scotland) Act 1912, but the removal of the animals will not depend on whether a prosecution is to be pursued nor its outcome. The new legislation will also give powers of entry to farm land and farm buildings, excluding dwelling houses, to persons authorised by local authorities to investigate cases of reported animal cruelty or neglect. It will also extend the powers of local authority animal welfare inspectors to remove animals or to have injured animals destroyed in the most serious cases.

Objective

8. There will be two main objectives of the possible Bill. The first objective will be to provide the power to remove neglected or suffering livestock or livestock at risk of suffering to a place of safety by an Animal Care Order. These orders will be issued by a Sheriff on application by the local authority and will be issued ahead of any prosecution. The Animal Care Order will allow all animals kept by the owner or just some of the animals to be taken into care. The Animal Care Order will be able to authorise the sale of some or all of the animals to allow for the costs incurred in the removal of the animals and their upkeep to be recovered.

9. The second objective of the draft Bill will be to modify the powers of local authority inspectors by giving them additional powers for welfare reasons.

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Section 1. Orders for Care, Disposal or Slaughter of Animals

10. This Section specifies the type of livestock covered under the draft Bill which are defined as "any animal kept solely or mainly for the production of food, wool or skin or for use in the farming of land". It makes provision for a Sheriff to make an Order which will allow a person authorised by the local authority to remove livestock to a place of safety or make arrangements for the livestock to be looked after. The Order will only extend to livestock within that local authority area. The Order may also make provision for the animals to be sold at a fair price, to be disposed of in some other way, slaughtered or put down.

11. Before any the Order is made it will be necessary for the Sheriff to have regard to protecting the owner's interests in relation to the value of the animals and to avoid increasing the owner's costs. Whilst the Order can provide for the immediate removal of the animals it will not normally authorise the sale, disposal or slaughter of the animals for a period of 14 days. This will further protect the owner's interests and may allow time for a review of the Order or an appeal, or enable the owner to make alternative arrangements to protect and improve the welfare of the animals. Notice of an application for an Order by the local authority must be given to the owner of the animals.

Sections 2 and 3. Interim Orders and Revocation and Variation of Orders.

12. This Section deals with the procedure for dealing with Interim Orders which can be issued in Chambers before an application for an Order under Section 1 has been made or finalised. An Interim Order can be made if the Sheriff is satisfied that the animal is suffering or likely to suffer significant harm. An Interim Order would only permit the removal of animals to a place of safety or arrange for them to be looked after. An Interim Order would not authorise sale or other disposal of the animals. This Section will also provide the Sheriff with the power to vary or revoke an Order either on an application by the local authority or the owner of the animal.

Section 4. Effects of Directions and Orders under Sections 2 and 3 of the Protection of Animals (Scotland) Act 1912.

13. This Section sets out the relationship between an Order made under this draft Bill and a Direction or Order made under Sections 2 or 3 of the 1912 Act. An Order made under the provisions of this Bill for an animal will cease to have any effect if and when an Order or Direction for the same animal has been made under the 1912 Act. Thus, where animals have been held by a local authority in terms of an Order under this Bill, that Order would be superseded by a direction under Sections 2 or 3 of the 1912 Act. This Section allows the local authority to co-operate with the Procurator Fiscal in implementing a Direction made under the 1912 Act. The local authority will still have an obligation to account financially to the owner of the animal after an Order under this Bill has lapsed.

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Section 5. Powers of Entry, Offences etc.

14. This Section makes provision for persons authorised by the local authority to enter premises where the animals for whom the Order has been made are kept. The power of entry will not extend to buildings used as dwelling houses but it shall extend to buildings where animals are housed. There will be a requirement for such persons to produce documentation showing that they are authorised by the local authority.

15. Any person obstructing an authorised person implementing the terms of an Order or attempting to enter premises will be guilty of an offence and will be liable to a fine not exceeding level 3 on the standard scale.

Section 6. Other Supplementary Provisions

16. This section will allow the local authority to recover reasonable expenses from the owner of an animal which has been taken into care and it makes provision for the local authority to pay the owner any net proceeds resulting from the sale of the animal after the local authority has recovered its costs. The owner of the animal will be required to deliver any documents required for the slaughter of the animals or documents needed to allow the animal to enter the human food chain within 10 days. Failure to provide these documents will be an offence carrying a fine of up to level 3 on the standard scale.

17. If the owner fails to provide the documentation there is a provision for the local authority to apply to the documentation issuing authority for replacement documents and these authorities shall be authorised to issue replacement documents to the local authority.

Section 7 and 8. Powers of Local Authority Officers Relating to Injured Animals and Powers of Entry

18. This section amends the wording in Section 10 of the 1912 Act to extend the existing power of police officers to remove and destroy animals to an authorised officer of the local authority. It also makes amendments to the Agriculture (Miscellaneous Provisions) Act 1968 to give increased powers of entry to local authority officers.

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PROTECTION OF ANIMALS (SCOTLAND) BILL

Draft as at 03-03-2003

An Act of the Scottish Parliament to provide for the granting of powers to local authorities in connection with the protection of certain animals; to amend section 10 of the Protection of Animals (Scotland) Act 1912 (c.14) to confer powers on local authority officers in relation to the removal and destruction of injured animals; to amend section 6 of the Agriculture (Miscellaneous Provisions) Act 1968 (c.34) to extend local authorities' powers of entry in connection with the welfare of livestock; and for connected purposes.

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Orders relating to protected animals

1 Orders for care, disposal, slaughter or putting down of protected animals

(1) If, on a summary application by a local authority, the sheriff is satisfied as to the matters specified in subsection (2) in relation to any protected animal kept in the local authority's area, the sheriff may make an order authorising the local authority, or any person authorised by it for the purposes of the order, to take one or more of the courses of action specified in subsection (3) in relation to the animal.

(2) The matters referred to in subsection (1) are-

(a) that the animal is suffering, or is at risk of suffering, due to neglect or cruelty, and

(b) that it is in the interests of the animal that an order be made in relation to it under subsection (1).

(3) The courses of action referred to in subsection (1) are-

(a) taking charge of the animal and looking after it, or arranging for it to be looked after, on the premises on which it is kept or at some other place,

(b) selling the animal at a fair price,

(c) disposing of the animal otherwise than by way of sale,

(d) slaughtering the animal, or arranging for it to be slaughtered,

(e) putting the animal down, or arranging for it to be put down.

(4) Where an animal-

(a) is slaughtered or put down in pursuance of an order under this section,

or

(b) otherwise dies whilst an order under this section is in force in relation to it,

the local authority may sell or otherwise dispose of the animal's remains.

(5) Among the matters to which the sheriff has regard when determining whether and, if so, which of those courses of action to authorise under subsection (1), there shall be included the desirability of-

(a) protecting the owner's interest in the value of the animal, and

(b) minimising the owner's costs.

(6) Where an order is made under subsection (1) authorising any of the courses of action specified in subsection (3)(b) to(e), that course of action must not be begun before the expiry of the period of 14 days beginning with the date of the making of the order unless the order so provides.

(7) The local authority making an application under subsection (1) must give notice of the application to-

(a) the owner of, and

(b) any other person appearing to the authority to have an interest in, the animal which is the subject of the application.

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2 Interim orders

(1) Subsection (2) applies where a local authority has-

(a) applied for an order under section 1 in relation to any protected animal and the application has not yet been disposed of, or

(b) given notice to the sheriff that it intends to apply for such an order in relation to any protected animal.

(2) The sheriff may-

(a) on the application of the local authority, and

(b) if satisfied that the animal is suffering, or likely, pending disposal of the application made or to be made under section 1, to suffer, significant harm,

make such interim order as appears to the sheriff to be appropriate.

(3) However, the sheriff may not make an interim order under this section authorising-

(a) any of the courses of action specified in subsection (30(b) to (e) of section 1, or

(b) any other action which would prejudice determination of the application made or to be made under that section.

(4) An application for an interim order under subsection (2) may be made ex parte in chambers.

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3 Variation and revocation of orders

The sheriff may, on cause shown, vary or revoke an order under this Act on an application by-

(a) the local authority, or

(b) the owner of, or any other person appearing to have an interest in, any animal in relation to which the order is made.

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4 Effect of directions and orders under sections 2 and 3 of the 1912

(1) This section applies where-

(a) a direction is made under section 2 (power of court to order destruction of animal where owner is convicted of offence of cruelty) of the 1912 Act; or

(b) an order is made under section 3 (power of court to deprive person convicted of offence of cruelty of ownership of animal) of the 1912 Act,

in respect of a protected animal in relation to which an order this Act is in force.

(2) The order under this Act, in so far as it relates to the animal in respect of which the direction or, as the case may be, order has been made under the 1912 Act, ceases to have effect.

(3) The local authority, and any person authorised by it for the purposes of the order under this Act, must take such steps as are necessary to allow the direction or, as the case may be, order under the 1912 Act to be, as far as possible, complied with.

(4) Subsection (3) above does not affect anything which the local authority or person authorised by it requires to do in pursuance of an obligation which arose before the direction or, as the case may be, order was made under the 1912 Act.

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5 Powers of entry, offences, etc.

(1) For the purposes of taking, in relation to any protected animal in respect of which an order under this Act is in force, any course of action authorised by the order, a person authorised by the local authority for the purposes of this section may-

(a) enter the premises on which the animal to which the order relates is kept,

(b) mark the animal (whether by application of an ear tag or otherwise), and

(c) in the case of an order authorising the course of action mentioned in section 1(3)(a) above, make use of any equipment on the premises for the purpose of taking that course of action.

(2) Nothing in this section authorises a person to enter any premises used wholly or mainly as a dwellinghouse.

(3) A person entering any premises in the exercise of powers conferred by this section shall, if so required by the owner, occupier or person in charge of the premises-

(a) produce a duly authenticated document showing that the person entering is a person authorised for the purposes of this section by the local authority, and

(b) state in writing the reasons for entering.

(4) Any person who obstructs-

(a) a person authorised by a local authority for the purposes of this section in the exercise of powers conferred by this section, or

(b) a person authorised for the purposes of an order under this Act in taking any course of action authorised by the order,

is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

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6 Other supplementary provisions

(1) The local authority is entitled to recover from the owner of any protected animal in relation to which an order is made under section 1 any expenses reasonably incurred by it in-

(a) taking, in relation to the animal, any course of action authorised by the order,

(b) paying the fee or other remuneration or expenses of any person authorised by it to take that course of action,

(c) selling or otherwise disposing of the animal's remains under section1(2).

(2) Where-

(a) an animal is sold or otherwise disposed of in pursuance of an order under section 1, or

(b) an animal's remains are sold or otherwise disposed of under subsection (2) of that section,

the local authority shall pay to the owner of the animal the net proceeds (if any) of the sale or disposal.

(3) In subsection(2), "net proceeds" means the proceeds of the sale or disposal less any sum which the local authority is entitled to recover from the owner under subsection (1) and has not yet so recovered.

(4) Subsection (5) applies where-

(a) an order is made under section 1 above authorising any course of action mentioned in subsection (3)(b), (c) or (d) of that section, and

(b) there are, in the possession or control of the owner of the animal in relation to which the order was made, documents-

(i) without which the animal cannot be slaughtered for human consumption, or

(ii) which are otherwise relevant to the condition or value of the animal.

(5) The owner shall, within 10 days of the making of the order, deliver those documents to the local authority.

(6) An owner who, without reasonable excuse, fails to deliver any documents as required by subsection (5) above, is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(7) If the owner fails to deliver any documents within subsection (4)(b)(i) as required by subsection (5), the person by whom the documents were issued shall-

(a) on the application of the authority, and

(b) if in possession of sufficient information to do so,

issue replacement documents to the local authority.

(8) An application under subsection (7) above shall be accompanied by-

(a) a copy of the order made under section 1 above, and

(b) such reasonable fee (if any) as is determined by the person to whom the application is made.

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Injured animals

7 Powers of local authority officers relating to injured animals

In section 10 (power of police constables to remove and destroy injured animals) of the 1912 Act-

(a) in subsection (1)-

(i) after "constable", where first occurring, there is inserted "or an officer of a local authority authorised by the authority for the purposes of this section (an "authorised officer")", and

(ii) after "constable", where second occurring, there is inserted "or, as the case may be, the authorised officer",

(b) in subsection (2), after "constable" there is inserted "or, as the case may be, the authorised officer", and

(c) in subsection (3)-

(i) after "constable", in both places where it occurs, there is inserted "or, as the case may be, authorised officer", and

(ii) after "police", where second occurring, there is inserted "or, as the case maybe, the local authority".

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Welfare of livestock: local authority powers of entry

8 Welfare of livestock: local authority powers of entry

In section 6 (powers of entry) of the Agriculture (Miscellaneous Provisions) Act 1968 (c.34)-

(a) in subsection (2), the words from ", being" to the end of that subsection are repealed, and

(b) in subsection (5), after "(1)" there is inserted "or (2)".

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General


9 Interpretation

(1) In this Act-

"the 1912 Act" means the Protection of Animals (Scotland) Act 1912 (c.14),

"local authority" means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c.39),

"protected animal" means any animal kept solely or mainly for the production of food, wool or skin or for use in the farming of land.

(2) References in this Act to-

(a) an order under this Act are to-

(i) an order made under section 1, or

(ii) an interim order made under section 2,

(b) any course of action authorised to be taken by an order under this Act include, in relation to such an interim order, anything authorised by it to be done.

(3) Any word or expression which is used in this Act and in the 1912 Act has the same meaning in this Act as in that Act.

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10 Short title and commencement

(1) This Act may be cited as the Protection of Animals (Scotland) Act 2003.

(2) This Act (except this section) comes into force at the end of the period of two months beginning with the day of Royal Assent.

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