Current enforcement mechanisms
Under the Animal Health Act 1981 (the Act) inspectors are appointed by a local authority or Scottish Ministers (such as employees of local authorities, and the Animal and Plant Health Agency (APHA)). Enforcement of the Act's measures is currently undertaken using a variety of methods. These can include providing verbal advice without resorting to statutory measures or using statutory provisions to issue warning letters or notices and finally, pursuing prosecution through the courts.
In many cases, the first response of an inspector when non-compliance of the Act is brought to their attention will be to offer advice, guidance and support to achieve compliance. Advice is provided to assist individuals and businesses in rectifying non-compliance as quickly and efficiently as possible, avoiding the need for further enforcement action. A warning letter may state what should be done to rectify and to prevent re-occurrence.
A notice (provided for under section 83 of the Act) may be served on the owner or occupier of the premises, or other immediate enforcement action taken, if there is significant contravention of the legislation, or if the consequence of non-compliance could be potentially serious to animal or public health. If a notice is served, it may require action to be taken or, that certain operations/activities be stopped immediately. For example, if disease is suspected on a premises, a notice may be issued to prohibit the movement of animals on or off the premises in order to control the potential spread of a contagious disease.
Secondary legislation made under the Act may also include the power to issues notices requiring particular actions. For example, under the Sheep Scab (Scotland) Order 2010 an authorised person may in certain circumstances serve a notice on the keeper of sheep requiring the keeper arrange a veterinary enquiry to establish if sheep scab is present on the premises.
Service of a notice may be followed by an investigation and further enforcement action, including referral for potential prosecution, may ensue. It is an offence not to comply with a notice without reasonable excuse.
For cases of a more serious nature, or cases where a notice has not been complied with, inspectors would normally gather evidence and put a case forward to the Procurator Fiscal for potential prosecution through the Scottish courts. (The Procurator Fiscal also has non-court options available where appropriate including warning letters or fiscal fines).
Under current European Union (EU) regulations, the Scottish Government must carry out a number of inspections each year to confirm that conditions are being met in return for payments made under the various schemes we manage. Cross Compliance is a mandatory set of requirements and standards that land managers have to meet in order to receive support scheme payments. These requirements relate to public health, animal and plant health, animal welfare, and environmental protection. Failure to meet Cross Compliance requirements and standards may result in payment reductions being applied to support scheme payments.
The proposed new powers to make regulations, allowing fixed penalty notices to be used in relation to animal health offences, will not affect arrangements for the payment of financial support and Cross Compliance. This is because those arrangements operate separately from any proceedings for a criminal offence. For example, a claimant who is considered to have committed an offence (e.g. falsifying a cattle passport) might, by virtue of regulations made using the new powers, be required or given an option to pay a fixed penalty instead. Regardless of whether any such fixed penalty may be paid as an alternative to prosecution, separate consideration would still be given to whether a payment reduction ought to be applied to the claimant's support scheme payments as part of the Cross Compliance requirements.
Concerns about current enforcement mechanisms
During disease outbreaks, control measures are put in place to prevent further spread of disease and to protect public and animal health. These measures are also necessary to minimise the overall cost of the outbreak on the taxpayer and the wider industry. Following an outbreak of Avian Influenza in 2016/2017 a lessons identified exercise was carried out to look at whether any improvements could be made to the response of Government and industry. The lessons identified report focussed on a need to develop a more proportionate non-compliance strategy to deal with hobby flock keepers that were failing to comply with control measures to protect the welfare of their birds by housing them or by introducing enhanced biosecurity measures. The report suggested that the introduction of a provision to allow local authorities to issue fixed penalty notices to deal with less serious offences such as these, would allow offences to be dealt with quickly and be more appropriate than referral for possible prosecution in court, whilst also improving standards and encouraging compliance during disease outbreaks.
Dealing with animal health cases can be time consuming and costly for both the enforcement authorities and the courts. Fixed penalty notices would allow offences to be dealt with quickly, more proportionately and alleviate the burden on the procurator fiscal and court system.
It is common for secondary legislation to provide that failure to comply is a criminal offence. It is accordingly appropriate that action be taken in relation to these offences. However, seeking to prosecute an individual for an offence might not, depending on the circumstances, be the most proportionate or effective means of addressing the circumstances of a particular case, nor of securing future compliance with a legislative requirement. It is against this background that the Scottish Government considers that the ability to issue a fixed penalty as an alternative to seeking prosecution, would equip enforcement authorities with an important additional tool by which to promote future compliance with legislative requirements.