Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020: provisions and requirements for additional animal welfare, animal health and wildlife offences - review

1. Introduction

1.1 The animals and wildlife (penalties, protections and powers) (scotland) act 2020

The Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020 (“the 2020 Act”) made amendments to:

Animal Health and Welfare (Scotland) Act 2006 (“the 2006 Act”)

Animal Health Act 1981

Wildlife and Countryside Act 1981

Protection of Badgers Act 1992

Conservation (Natural Habitats, &c) Regulations 1994

Deer (Scotland) Act 1996

Wild Mammals (Protection) Act 1996

Protection of Wild Mammals (Scotland) Act 2002 (now repealed)^[1]

Marine (Scotland) Act 2010

The majority of these amendments related to increasing penalties for the most serious wildlife and animal welfare crimes. Amendments by the 2020 Act to the 2006 Act also made it a requirement for Courts to consider whether it is necessary, to protect animal welfare, to issue a disqualification notice (already provided for under Section 40 of the 2006 Act and where a person convicted of a relevant offence under the 2006 Act is prohibited from specified animal related activities) alongside any penalties where a person is convicted under the 2006 Act, and to state the reasons for their decision.

Further amendments introduced new provisions into existing legislation around:

• the harming of a service animal;
• quicker rehoming of animals taken into possession on animal welfare grounds;
• introducing the power to provide for Fixed Penalty Notices;
• changes to the seal licensing system;
• aquatic acoustic deterrents;
• changes to protection of certain wild animals;
• providing Police Scotland more time to investigate wildlife crimes.

Further information can be found in Section 2 of this review and in the Policy Memorandum to the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill (the Bill”).

The majority of provisions in the 2020 Act came into effect on 30^th November 2020 under The Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020 (Commencement No. 1 and Transitional Provision) Regulations 2020:

• Section 1 Prevention of harm to animals: penalties for offences
• Section 2 Fixed penalty notices for certain animal welfare offences
• Section 3 Harming a service animal
• Section 6 Fixed penalty notices for offences relating to animal health
• Section 7 Wildlife and Countryside Act 1981: penalties for offences
• Section 8 Protection of Badgers Act 1992: penalties for offences
• Section 9 Conservation (Natural Habitats, etc.) Regulations 1994: penalties for offences
• Section 10 Deer (Scotland) Act 1996: penalties for offences
• Section 11 Wild Mammals (Protection) Act 1996: penalties for offences
• Section 12 Protection of Wild Mammals (Scotland) Act 2002: penalties for offences
• Section 13 Fixed penalty notices for certain wildlife offences
• Section 14(1) and (7) Killing, injuring or taking seals: offences, penalties etc. (Section 14(2) to (6) of the 2020 Act, on Killing, Injuring or taking seals, came into effect on the 1^st of February 2021)
• Section 15 Acoustic deterrent devices: requirement to report
• Section 16 Review of requirements for additional animal welfare, animal health and wildlife offences

There were two further Commencement Regulations: The Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020 (Commencement No. 2) Regulations 2021; and The Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020 (Commencement No. 3 and Transitional Provision) Regulations 2021. These brought the remainder of the provisions in the 2020 Act into effect.

1^st March 2021:

• Section 18 (Protection of certain wild animals)

30^th September 2021:

• Section 4 (disqualification orders),
• Section 5 (disqualification orders: further provision),
• Section 19 (taking possession of animals: additional powers),
• Section 20 (taking possession of animals: amendment of existing powers),
• Section 21 (disposal orders where animals taken: restriction of application)

1.2 Legal requirement for a review

The Scottish Government is legally obliged to complete a review of the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020 by the 1^st April 2025 and provide a report to the Scottish Parliament under Section 16: Review of requirements for additional animal welfare, animal health and wildlife offences.

Section 16 sets out that:

(1)The Scottish Ministers must conduct a review of whether the provisions of this Act are sufficient to ensure appropriate standards of animal welfare, animal health and protection of wildlife.

(2)Without prejudice to the generality of subsection (1), the review must in particular consider whether provision should be made—

(a)for a specific offence of theft of a pet,

(b)to prohibit the attaching, or causing or permitting the attaching, to a dog or other animal of a collar or other wearable device designed to administer an electric shock,

(c)about the appropriate penalties to be available for any such offences.

(3)The review must be completed as soon as practicable and no later than 1 April 2025.

(4)On completing the review, the Scottish Ministers must—

(a)lay a report on the review before the Scottish Parliament,

(b)publish the report in such manner as they consider appropriate.

(5)The report under subsection (4) must include a statement of—

(a)the action, if any, the Scottish Ministers intend to take as a result of the review,

(b)where the Scottish Ministers do not intend to take steps to make provision for the matters in paragraphs (a) and (b) of subsection (2), their reasons for this.

1.3 Approach taken

The Scottish Government review of the 2020 Act addresses:

• The use of provisions made by the 2020 Act and whether there is a significant need to refine them (Section 2).
• Whether provisions should be made for pet theft and/or for electronic collars using static pulse as a stimulus (Section 3).
• What further legislation or other action may be required to improve animal welfare, animal health and the protection of wildlife in response to current key challenges (Section 4).
• Some areas of related work that have been completed by the Scottish Government since the 2020 Act came into force (Section 5).