8. Options for further regulation
SAWC has considered a number of options based on recommendations from respondents.
The evidence received by SAWC suggests that there are important animal welfare issues to address and that further regulation would be beneficial.
This was advocated by a number of trade and industry stakeholders. For example, the Federation of British Herpetologists said:
“The FBH would much rather see welfare standards maintained and improved by self-regulation, development of best practice guidance, and shared research of optimal conditions. Regulations and restrictions in species that may be kept may stop the progress of improved husbandry by preventing people keeping species.”
The Federation of British Herpetologists referred to the International Herpetological Society rules for its own shows, which include:
- Animals that are sold are surplus breeding stock from private keepers and not from any trade or professional bodies.
- Only members of the IHS may sell livestock.
- Vets assess the general health of animals and the transport/show enclosures.
- Certain colour morphs are not allowed to be sold at the shows. The morphs on this list can have genetic issues and the aim of the ban is to discourage the breeding of these morphs.
By contrast, the UK Centre for Animal Law expressed concern about permitting unregulated trade, subject only to the Dangerous Wild Animals Act 1976. Eurogroup for Animals submitted that:
“Attempts by the pet trade to self-regulate have comprehensively failed.”
The difficulty with self-regulation is that industry stakeholders inevitably have a conflict between their aim of making a profit from breeding and dealing in animals, which is a legal activity, and the welfare of the individual animals involved, even though many industry stakeholders recognise the ethical and practical implications of providing good welfare. While trade associations may be able to regulate their members, they seldom cover the entirety of their sector. In addition, rules and codes of practice are unlikely to carry any sanction beyond removal of association membership, which places non-compliant traders outwith the aegis of even a voluntary regulatory regime.
Any self-regulation system would only be a partial solution as it can only apply to trade and industry and not to private keeping, as this would be impossible to enforce without any oversight body.
Use of general or specific prohibitions
The Scottish Government has the power to ban the keeping of certain animals by way of regulations under section 28 of the Animal Health and Welfare (Scotland) Act 2006.
Examples of potential general prohibitions could include a wholesale ban on the keeping of non-domesticated animals, or a ban on private keeping.
The use of “large-scale and comprehensive bans” was advocated by the Animal Protection Agency as “the most effective measures to control the burgeoning problems associated with trading and keeping wildlife as pets”.
The UK Centre for Animal Law agreed that prohibitions should be considered, albeit with caveats:
“We suggest that a ban on the trade of exotic species should be given consideration in light of public health, environmental, and animal welfare concerns posed by the trade. However, we note that a relatively recent attempt to ban such trade in Norway did not prove effective.”
Any proposal for a large-scale prohibition, covering a broad category of animals, would require to be underpinned by robust evidence for changing what is, at present, a broadly permissive legislative regime and this approach may be disproportionate at this stage. Trade and hobbyist associations would be strongly opposed to such an approach and in the past have expressed robust views on any threat to their interest, for example in the “Hands Off My Hobby” campaign launched in 2014 by the Ornamental Aquatic Trade Association.
Examples of specific prohibitions could include a ban on the keeping of any wild-caught animals, or a ban on the keeping of certain classes of animal, such as primates. The UK government announced in May 2021 that it intended to ban the keeping of primates in England and Wales, stating:
“We will legislate to prohibit primates as pets and potentially other animals. Keepers that are able to provide welfare standards akin to those of licensed zoos will be able to keep their primates under a new licensing regime, subject to conditions and inspections. Ownership of these exotic animals with complex needs will be phased out for keepers unable to meet these standards. We are considering whether these restrictions should apply to other wild animals that are kept as pets.”
SAWC will seek further information as to the intended approach by the UK government, other wild animals kept as pets that may be in scope, and the views of the Scottish Government with regard to mirroring this legislation in Scotland.
There may be scope for the use of specific bans of this type as a potential short-term solution to address the most egregious issues, while longer-term work goes on in areas such as positive lists, if that should be the approach preferred by the Scottish Government.
Use of licensing
As described in section 7 on the current legal and regulatory regime in Scotland, the sale of pets is already covered by the Pet Animals Act 1951 and the Animals (Licensing of Activities) (Scotland) Regulations 2021. It will be important to monitor the ability of the latter to enhance enforcement and monitoring of the commercial trade in pets. In this context it is important to note that some individuals who sell animals do not apply for licences even when it appears that they should.
The 2021 Regulations do not apply to private keeping of animals, which remains unlicensed, except where dangerous wild animals are concerned.
Whitehead et al. (2015) differentiated between expert enthusiast reptile keepers and regular pet keepers, who cared for their pet as an individual, but were not particularly interested in the species and had not spent a lot of time finding out about its husbandry, light and temperature requirements, etc. Whitehead et al. (2015) favoured a graded licensing scheme for reptile owners, based on a combination of the owner’s level of expertise and the complexity of husbandry requirements for the species in question.
A specialist reptile keeper in Scotland supported a national oversight body to monitor licensing and inspections:
“Licensing - Private and Business: at present there is no national standard of inspection levels for pet shops wishing to obtain a license and thus there is a wide scope for interpretation and abuse. This is also the case with the DWA licensing scheme - to take both under a national body where statistical data and governance can be observed is key to achieving these animal welfare standards.”
The Ornamental Aquatic Trade Association suggested that all facilities handling live animals across the UK, including online, home-based and rescue/rehoming centres, should be licensed with regular inspection.
The UK Centre for Animal Law proposed that, if trade in exotic species is permitted, it should be subject to a reformed and enhanced licensing regime covering the trade in exotic animals, supported by a positive-list”system for the keeping of pets. A general licence could be created for keepers of the animals included on a positive list, while rescue centres and other parties, having good reason to keep unlisted species, could do so under an individual licence. Knowledgeable owners could also continue keeping exotics under individual licences, while others would be encouraged towards the species considered easier to keep, and therefore included on the positive list.
A list approach
SAWC has taken a large amount of evidence from NGOs and industry on the possibility of a list approach to limit the animals kept by people in Scotland to those that are specifically assessed as suitable for such keeping. By “suitable”, we mean those animals whose welfare needs can readily be met. As suggested in the discussion of Option 2 above, it is possible to link lists and licences for a more nuanced approach to limiting or, indeed, permitting the keeping of different species.
Stakeholders largely agreed that some animals were more suitable for domestic keeping than others. The British Veterinary Zoological Society (BVZS) commented on non-traditional companion animals (NTCA):
“The views of BVZS members on the keeping of NTCAs are quite diverse. Some of our members work closely with the exotic pet ‘industry’ and believe that it is possible to keep many species more than adequately and legally in captivity with the correct management and nutrition. Other members would prefer not to see these animals in captivity at all. A compromise view would be that some species can be kept as pets legally (fulfilling their Five Needs under the Animal Health and Welfare (Scotland) Act, 2006) and be provided with a good quality of life, whilst other species should never be considered appropriate for pets.”
This represents a slight adjustment to the previous BVZS position. A joint BVA/BVZS statement in 2015 recommended regulation of the trade:
“The pet trade should be regulated through:
- The introduction of new legislation to include licensing for all commercial importers of captive-bred NTCAs
- A ban on the importation of wild caught reptiles and amphibians into the EU except for legitimate and defined conservation reasons
- The regulation of all pet fairs, rehoming and rescue centres for all species
- Systems to monitor and limit internet advertising and sales of NTCAs, such as those promoted by the Pet Advertising Advisory Group (PAAG)
“Importers and those who trade animals should also be regulated in order to control the trade, increase traceability and improve animal health and welfare.”
i. The positive-list approach
SAWC is aware of arguments made by animal welfare NGOs, including Eurogroup for Animals, Animal Protection Agency, World Animal Protection, UK Centre for Animal Law, AAP Animal Advocacy and Protection, OneKind, Blue Cross and the RSPCA, in favour of the positive-list approach and of the Scottish Government’s previous interest in exploring this.
SAWC asked stakeholders for their views on positive lists, described as follows:
“The positive list approach involves the creation of a concise list or lists of animals that may be kept in different circumstances, based on an independent assessment of their suitability.
“Belgium, Luxembourg and the Netherlands have already legislated to introduce different versions of this system. The Belgian positive list for mammals entered into force on 1 October 2009 and contained 42 mammal species permitted for private keeping. A species can be added if there are sufficient scientific data to show that it can be kept without the need for specific knowledge and without jeopardising the welfare of the animal.
“There are usually derogations for zoological gardens, laboratories, individuals already in possession of non-listed animals, veterinary surgeons, circuses and traders under limited circumstances and under licence. Enforcement authorities have not found evidence of widespread illegal keeping and the number of unsuitable pets at rescue centres and sanctuaries has decreased.
“Criteria for inclusion vary from administration to administration but cover matters such as an individual animal’s behavioural, environmental and husbandry needs, human health, potential invasiveness of the species involved, and ease or difficulty of keeping. The selection of species is a key issue and has been undertaken with input from scientists, animal welfare groups and trade representatives.
“The positive list is only one of the possible regulatory approaches being considered by the work group, if it concludes that further regulation is necessary.”
Opinions in responses were clearly divided between animal welfare NGOs, which supported positive lists, and pet industry bodies, which did not. Veterinary organisations tended to see both advantages and disadvantages. For example, the European College of Zoological Medicine expressed reservations as to the ability of positive lists to provide sufficient protection for animals included on the list:
“In our opinion, the term positive list is often interpreted as a list of species that are ‘easy to keep’ in comparison to more difficult ones. However, from the point of view of welfare, such ‘easy to keep species’ still require species-specific husbandry and nutrition, and failure to do so will result in health and welfare problems (Rooney, EJ et al. 2014, Green, Coulthard et al. 2020). Most species listed on positive lists are widely available and they could end up in the hands of inexperienced keepers with limited knowledge of these species’ requirements, with a significant amount of avoidable health problems observed in these species.”
World Animal Protection agreed with the need to ensure that animals included on the list should still be accorded welfare protection:
“Species included on the list should be those domesticated species that can be competently kept by an average member of the public in a home environment, in a manner that meets all their five welfare needs, including the ability to express a full range of natural behaviours. However, we recognise that Positive Lists may result in the inclusion of some non-domesticated species, at least risk of welfare harms in captivity. For example, the Norwegian Positive List for reptiles includes 19 species (Toland et al., 2020). Nevertheless, implementing a Positive List in the UK should be a step towards alleviating the suffering of wild animals kept as exotic pets.”
Industry stakeholders did not support listing approaches. For example, the Federation of British Herpetologists was opposed to either positive or negative lists on the basis of human rights, difficulty in identifying species and the potential to drive illegal trade underground, which could lead to poorer welfare for reptiles (for example due to no veterinary treatment, no sale of equipment for specialist species, etc).
The Federation of British Herpetologists stated that lists might have “a negative impact on welfare, including deliberate mis-identification of species, black market sales, and people not taking animals for medical care when needed” and recommended that the reptile community in the UK should continue to self-regulate. It was proposed that this should include improving welfare and husbandry standards by development of best practices, making use of new technology, sharing knowledge and research openly, and maintaining appropriate rules for shows.
In specific terms, the Federation of British Herpetologists expressed concerns regarding restrictive lists:
- Accurately registering species - a positive list may encourage people to falsely register an animal as a different species so that it can be sold (a possible example would be registering a Burmese python (Python bivittatus bivittatus) as a Dwarf Burmese python (Python bivittatus progschai) should larger python species not be included on a positive list.
- Keepers giving up animals that they currently have due to the inability to sell them in the future.
- Keepers not declaring species - any animals that are not allowed may not be declared.
- Keepers not taking restricted species to vets as needed - if a species is banned and not declared, it may be that the owner does not take the animal to a vet if needed
- Selling animals illegally - as mentioned above it is difficult to monitor some sales of reptiles. If there are species that are not allowed, then sale of these species will be pushed into the black market.
- Provision of equipment - if specific species groups are not allowed, then keepers may not buy equipment specific to those species - e.g. especially large enclosure or safety handling equipment - so that attention is not drawn to the animals in question.
The view of the Parrot Society UK was:
“Setting a specific ‘Scottish Permissive List’ for parrots would be unworkable and have no tangible benefit as psittacine species are moved between breeders across the UK and the EU. As the EU, along with Norway, Switzerland and the UK, is a closed environment for these species, only a ‘European Permissive List’ would make any sense. Currently, the vast majority of parrot species & sub-species being kept and bred by hobbyist breeders and pet-parrot owners comprise captive-bred birds with no negative impacts on wild populations. A very few longer-lived individuals originating from wild imports may still exist. All have proved themselves suitable for captivity through the very fact that they have bred under these conditions for successive generations.
“The Parrot Society UK supports the concept of psittaculture from an educational, conservationist, and human interest point of view, whilst agreeing that ongoing education into health, diet and husbandry of these fascinating parrot species is still essential. The PSUK invites further debate on the subject and is anxious to be at the forefront of the future of captive parrot management, breeding and welfare, both in the UK and internationally.”
Despite its opposition to the wider positive list concept, the Parrot Society UK agreed that:
“There is a potential case for listing certain parrot species on a ‘register’, that would require keepers of these birds to prove their knowledge and ability to maintain such species. Again, the PSUK would be available and willing to assist in identifying such species, and could provide the standards for diet and husbandry through a programme of education and certification.”
Unqualified support for the positive list approach came from Eurogroup for Animals, whose membership includes several groups with experience of formulating positive lists:
“At the moment of writing (December 2020), the Positive List system is in place in 7 European countries: Belgium (the first European country which adopted a Positive List system in 2001), the Netherlands, Luxembourg, Malta, Croatia, Lithuania and Norway. The Dutch government is currently finalizing a new Positive List for suitable pets. Although the process to establish such list has become rather lengthy and has had its setbacks in the past, the political support for such policy instrument remains high in the Netherlands. The Positive List has been accompanied with other provisions, mainly to receive the support from sector-organisations and hobby-associations of exotic pet keepers. These additional provisions include a grandfather clause, a regime for specialist keepers, and a legal provision to request that species are added to or deleted from the list.”
Animal welfare NGOs, including Eurogroup for Animals, Animal Protection Agency, World Animal Protection and the UK Centre for Animal Law, referred us to the review by Toland et al. (2020) of positive and negative lists in Europe and North America. This includes a useful table summarising the approaches to positive listing taken in these countries and which is reproduced, with permission, at Appendix VI. The authors note the inconsistent criteria in different countries for the development of negative and positive lists, and also cite a number of key issues raised by civil servants whom they interviewed.
A specialist reptile keeper in Scotland suggested a “traffic light system”, an approach that has also previously been supported by some sectors of the veterinary profession. The specialist reptile keeper’s proposal was:
“Green Species: every other species not in the below categories.
Amber Species: problematic or invasive species such as Green Iguanas, Bosc Monitors and Red Eared Terrapins along with species which are considered rare or endangered and a level of experience must be attained before keeping.
Red Species: large Boids such as Burmese Pythons: Python bivittatus, Reticulated Pythons: Malayopython reticulatus, African Rock Pythons: Python sebae and Green Anaconda: Eunectes murinus which routinely grow 10ft and over and DWA Species.
“The above would be a 'living list' and reviews could be set on an annual basis to ensure it was current and correct. Anyone wishing to keep an Amber Species for example would have to provide proof that they could cater for the animal’s needs throughout its lifetime and some sort of database be maintained which would allow the Government to keep a tally of how many of these animals were being kept, bred and traded.”
ii. Principles for compiling positive lists
The UK Centre for Animal Law discussed a statutory positive-list system as part of a reformed licensing system, which should “ensure that all trade in exotic species is encapsulated and information in licences should enable authorities to monitor and assess any risks arising.”
The UK Centre for Animal Law also pointed out the importance of a robust scientific methodology for inclusion of animals on the list:
“The overriding principle is that species included on positive lists should be those that, according to the latest scientific evidence, can be competently kept by an average member of the public in an ordinary domestic setting, and consistent with modern understanding of animal welfare, environmental and public health and safety considerations.”
The UK Centre for Animal Law believed that reducing the number of species permitted to be kept would reduce the wider regulatory burden and add clarity and transparency. A further advantage of a positive list was said to be:
“The proactive decision (to include a species on the list) connotes consideration and attention, whereas pets allowed in negative list situations essentially come from a void of information.”
Warwick and Steedman (2021) suggest that negative list approaches should be replaced with objective positive list systems to regulate the sale and keeping of both “wild pet” and “domesticated pet” animals. Their approach aims “to produce a novel method for developing positive lists that meets several criteria that we considered to be fundamental to a robust decision-making protocol: operational objectivity; quantitative algorithm design; no or negligible consensus-based decision-making; binary results; independent repeatability; user-friendliness; resource efficiency; optional use alongside other methods.”
World Animal Protection referred to a number of pre-existing principles:
“Recommendations guiding the implementation of Positive Lists have been developed by leading experts (Toland et al., 2020). Key principles include:
- Species selection criteria should take into account animal welfare; public health and safety; risk of invasiveness; conservation status and provenance. Availability of good quality, impartial husbandry guidance; local enforcement and veterinary expertise; appropriate rescue facilities should also be considered.
- Positive lists should be developed by independent parties using scientific, evidence-based, and objective sources.
- In the interests of fairness, inclusivity, and transparency, species selection criteria should be published along with a description of the assessment processes and tools used.
- Where data on a species under assessment are conflicting, inconclusive or absent, the precautionary principle should apply, and the animal should not be listed.
- The addition of species to the Positive List should require new scientific evidence, and an application process should be in place.
- The burden of proof for adding species to a positive list should rest with the exploiter, using scientific, objective, and impartial evidence.
- Positive lists should be sufficiently concise for ease of enforcement and public compliance.
Transitional arrangements in the form of ‘grandfather provisions’ should be in place to allow prohibited animals already in private ownership to be kept until they die, but not bred or otherwise replaced.”
The European College for Zoological Medicine envisaged a number of challenges:
“1) It is (nearly) impossible to compile a positive list that is scientifically sound.
2) It is highly doubtful to which extent this results in increased welfare: most welfare issues (often husbandry / nutrition related) occur in species that will end up on such positive lists.
3) The only positive list that would address many of the issues listed and cannot be easily rejected (e.g. for being arbitrary, not scientifically sound) is a positive list that allows the keeping of captive bred offspring only (hence: no wild-caught animals). For notoriously difficult to keep species, a negative list could be compiled.”
The Dutch NGO AAP Animal Advocacy and Protection stressed that its focus was not on the methodology, but on the policy instrument:
“Our focus is on promoting the adoption of the positive list system, while the chosen methodology to draft the list often depends on the country situation. Or to phrase it differently: we suggest policy makers consider all the developed methodologies and see what fits their context best, which could result in policy makers to pick and choose elements from the current methodologies in order to design a new tailor-made approach.”
SAWC agrees that the priority for any listing approach must be the promotion of animal welfare. This means that – while agreeing with the need for any list to be based on scientifically robust assessment of animals’ overall suitability for life in private keeping or captivity – practical issues, such as enforceability, also have a bearing on the net benefit, or otherwise, for animals. Various approaches to assessing species suitability have already been developed, since the publication of the first tool in 2000 (Schuppli and Fraser, 2000). More recently, Koene et al. (2016) devised a model for devising dynamic suitability lists for mammal species, with input from scientists and stakeholders. Information about behavioural ecology, health, and welfare and human–animal relationships of 90 mammal species was collected by one team, while the strength of behavioural needs and risks was assessed by a second. Based on summaries of the first two elements, the suitability of the species was then assessed by a third team.
“Combining the individual and subjective assessments of the scientists using statistical methods makes the final assessment of a rank order of suitability as pet of those species less biased and more objective. The framework is dynamic and produces an initial rank ordered list of the pet suitability of 90 mammal species, methods to add new mammal species to the list or remove animals from the list and a method to incorporate stakeholder assessments. A model is developed that allows for provisional classification of pet suitability. Periodical update of the pet suitability framework is expected to produce an updated list with increased reliability and accuracy. Furthermore, the framework could be further developed to assess the pet suitability of additional species of other animal groups, e.g., birds, reptiles, and amphibians.”
Scotland has the advantage of being able to draw on the experience of other European countries that have been through the process of legislating for and compiling positive lists using frameworks of this type. Belgium has a positive list of mammals (42 species) and, more recently the region of Flanders has approved a positive list of reptiles.
Luxembourg also has a positive list for mammals (30 species) and the Netherlands has finalised a longer list prior to final adoption (see below).
Most recently, on 20 April 2021, the Italian Senate (Senato della Repubblica, 2021) passed legislation on animal health, including a provision to ban the importation and keeping of exotic and wild animals and restricting trade in domestic animals, to be made effective within twelve months.
In implementing any form of listing approach, it will be essential to avoid pitfalls such as inconsistency, over-complication and unenforceability.
Any proposed list or lists must aim only to include animals that, on the basis of scientific evidence and assessment, can be competently kept and experience acceptable standards of welfare in the care of suitable persons. It is unlikely that a single list can encompass the range of suitability from a novice keeper to a specialist hobby breeder, or a zoological collection.
Legislative competence must also be taken into account, as the UK Centre for Animal Law noted, cautioning that a positive-list approach:
“would enable Scotland to regulate the keeping of animals within its territory, whereas it is harder to see how Scotland can unilaterally regulate the trade in exotic animals in a way that is effective, having regard to the legal and territorial limits of Scottish legislation.”
iii. Experience in Belgium and the Netherlands
Aiming to build on the longest-established European precedents, in February 2021 SAWC sent out a further request for information to government officials and closely involved NGOs in Belgium and the Netherlands, focussing specifically on the process and methodology of compiling their positive lists. The request is shown at Appendix II.
The legal basis for positive lists in Belgium is found in the Animal Welfare Law of 14 August 1986, The Belgian positive list for mammals, (42 species) originally introduced in 2001, is the oldest known European positive list and survived a legal challenge to the European Court of Justice, which ruled in 2007 that the approach was not in violation of EU free trade regulations as long as it was based on objective, non-discriminatory criteria (Case C-219/07). Legislation for the mammals list followed soon afterwards.
The Belgian assessment criteria require that the species: "must be easy to keep in terms of its basic physiological, ethological, and ecological needs; must not present an overt risk of becoming invasive in the natural environment; must not pose a disproportionate risk to human health; must have reliable husbandry guidance available." Where the evidence on these criteria is inconclusive, the benefit of the doubt is in favour of the animal not being listed.
The competence for the positive list now resides with Belgian regional authorities and each region is developing its own lists for non-mammals. The region of Flanders introduced a positive list for mammals in 2018 and more recently approved a positive list of reptiles, under legislation dating from 22 March 2019.
The Flemish legislation was preceded by an opinion from the region’s Animal Welfare Council (Flemish Council for Animal Welfare, 2018), which sets out the criteria agreed by a working group comprising scientists and representatives from animal reception centres, animal fanciers' associations, traders, animal welfare organisations and nature protection associations. The criteria are broad and come under three headings: “Easy to keep”, “Poses no danger to humans” and “Sufficient information available”. The process produced a list of 422 reptile species and the Opinion ascribes the length of this list to the prevalence of reptile keeping in Flanders: “the number of reptile species that potentially conform with the documented criteria undoubtedly exceeds the number of species included on the list. As the number of reptiles in Flanders is estimated to be higher than in Wallonia, and since the number of reptile species is presumably also more varied, the proposed Flemish positive list is more extensive than the Walloon positive list.”
A key aspect of the Flemish list is its dynamic nature, allowing applications to be made for accreditation of a species not already on the list, and also for species to be removed. Such applications are to be processed by an expert committee, including representatives of stakeholder groups and scientific and veterinary experts.
Some stakeholders, such as World Animal Protection, have commented that the lengthy positive list for reptiles in Flanders appears simply to endorse those species commonly found in the trade and indeed it may be argued that it would be better to start from the perspective of the animals (such as corn snakes and bearded dragons) that are already widely kept, although possibly not as many as 422 species. It is reasonable to assume that there is sufficient information and support (including knowledge in the wider veterinary profession) for these animals to be cared for in a competent manner. That is not to say that they are “easy” to keep or that inclusion on a list is an endorsement of keeping non-domesticated animals.
In 2016, Eurogroup for Animals conducted a study (di Silvestre and van der Hoeven, 2016) of the effectiveness of Belgium's regulation and the positive list for mammals. Their data showed that the positive list had reduced exotic mammal trade overall, and online trade in illegal species was low. Notably, the Belgian government widely publicised every confiscation of a non-listed species, leading to increased public knowledge and familiarity with the list.
In the Netherlands, the methodology for assessing mammal species has been finalised and published by a statutory committee advising the Ministry of Agriculture, Nature and Food Quality (Wetenschappelijke Adviescommissie Positieflijst, 2019). SAWC has received information on the process from AAP Animal Advocacy and Protection, one of the NGOs involved.
AAP Animal Advocacy and Protection advised SAWC that it was waiting for the methodology to be used to assess around 270 mammal species kept in the Netherlands, although the sources used for the assessment were not country specific. The National Enterprise Agency has published the full list of species to be assessed (Rijksdienst voor Ondernemend Nederland, 2019)
The assessment of species is expected to be finalised by the end of summer 2021 and will then be subject to public consultation, which may yield some changes in the assessment of species, although not in the methodology. AAP thought it likely that the new positive list would be legally challenged by opponents of exotic pet trade regulations.
AAP Animal Advocacy and Protection described the methodology as based on a binary risk-assessment of criteria based on the traits or characteristics of different animal species. Characteristics – as described in scientific literature – might include, for example, that a species is herbivorous with hypsodont dentition/ a species has a monogamous lifestyle/ a species hibernates. Risk classes are assessed according to the number of characteristics identified. The decision to include a particular risk class on a positive list or not will be a political one, made at Ministerial level.
iv. Negative lists
A negative list is a fixed list that proscribes the keeping of a limited number of species for a specific purpose.
An example closest to home is the Schedule to the Dangerous Wild Animals Act 1976, which prohibits the keeping of between 40 and 50 kinds of animals without a licence. Another UK example, in a different context, is the breed-specific approach taken in Part 1 of the Dangerous Dogs Act 1991. Both of these lists have been criticised for lack of flexibility and the possibility of circumvention by switching to a similar type of animal that is not specifically prohibited.
Negative lists to control the keeping of non-domesticated animals have been in place for some time in a number of countries. Toland et al. (2020) note that in the United States, where legislation is devolved to the individual states, most of the relevant statutes rely on negative lists, although positive lists have been identified in 21 states, largely alongside established negative lists. In Canada, approximately 45% of the country’s 3,573 municipalities are either subject to or apply a positive list, based on a variety of criteria including health and safety (following reports of fatalities associated with exotic pets).
Toland et al. (2020) comment:
“Current and predominantly negative-list-based regulatory systems are manifestly failing to protect biodiversity, conserve wild animal populations, curb illegal wildlife trade, safeguard human health and animal health and welfare.”
And with regard to the inconsistency of approach:
“Negative and positive lists may include entire classes of animals or particular breeds of a single species, and any taxonomic category in between.”
It was also noted that most negative lists do not encompass fishes, amphibians and reptiles.
The UK Centre for Animal Law (A-LAW) suggested that negative lists are preferred by the pet industry, because they are less restrictive.
Submissions received from industry did not, by and large, comment in detail on negative lists, although some were opposed to any type of listing.